[Cites 28, Cited by 0]
Madhya Pradesh High Court
Videsh Singh vs Lovkush Singh on 18 December, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:69217
1
C.R. Nos.1110/2025, 1134/2025 & 1135/2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
CIVIL REVISION No. 1110 of 2025
SHANKAR PRASAD GUPTA
Versus
LOVKESH SINGH AND OTHERS
Appearance:
Shri Prakash Upadhyay - Senior Advocate with Shri Harish Shukla
and Shri Joyveer Singh Saini - Advocate for petitioner.
Shri Ravish Chandra Agrawal - Senior Advocate with Shri Suyash
Mohan Guru and Shri Akshat Agrawal - Advocate for respondent No.1.
WITH
CIVIL REVISION No. 1134 of 2025
ANITA KANJAR
Versus
LOVKESH SINGH AND OTHERS
Appearance:
Shri Sanjay Agrawal - Senior Advocate with Shri Akshay Singh and
Shri Arpit Agrawal - Advocates for petitioner.
Shri Sankalp Kochar - Advocate for respondent No.1.
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AND
CIVIL REVISION No. 1135 of 2025
VIDESH SINGH
Versus
LOVKUSH SINGH AND OTHERS
Signature Not Verified
Signed by: PREM SHANKAR
MISHRA
Signing time: 18-12-2025
18:28:33
NEUTRAL CITATION NO. 2025:MPHC-JBP:69217
2
C.R. Nos.1110/2025, 1134/2025 & 1135/2025
Appearance:
Shri Sanjay Agrawal - Senior Advocate with Shri Akshay Singh and
Shri Arpit Agrawal - Advocates for petitioner.
Shri Arpan J. Pawar - Senior Advocate with Shri Chiranjeev
Sharma - Advocate for respondent No.1.
----------------------------------------------------------------------------------------------------------
(Reserved on: 21.11.2025)
(Pronounced on: 18.12.2025)
ORDER
All these three Civil Revisions arise out of common judgment passed
by the Election Tribunal of First Additional District Judge, Sidhi (M.P.),
whereby the election of returned candidate, who is the Revisionist in CR
No.1110 of 2025, has been set aside. The said revision is thus, filed by the
returned candidate whose election has been set aside. The other two
Revisions have been filed by those persons who are not the returned
candidates but still feel aggrieved by the said common judgment to the
extent of certain comments and findings contained in the impugned
judgment against them. CR No.1134 of 2025 has been filed by one of the
Councillors and who was voter for the returned candidate, and aggrieved
by the finding that the vote of this petitioner has been cast by her proxy in
violation of Rule 11 of the M.P. Nagar Palika Adhyaksh Tatha
Upadhyaksh Ka Nirvachan Niyam, 2019 (for short referred to as the
"Rules of 2019"). CR No.1135 of 2025 has been filed by one Videsh Singh
who was neither the contesting candidate nor the voter for the election but
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
he is aggrieved by the findings contained in the said judgment of the
Election Tribunal, wherein the finding has been recorded against him that
this petitioner has entered into conspiracy and has given bribe of
Rs.50,000/- each to Councillor Himanshu Tiwari and Councillor Sushila
Singh, so also exerted undue influence on Councillor Govind Saket and
procured votes of these three persons in favour of the returned candidate.
2. Since the issues arising for consideration of this Court in all these
three Revisions are on identical facts, and same grounds have to be
considered by this Court, therefore, all these three revisions have been
heard together and are being decided by this common order.
3. The facts in brief for the purpose of present petitions are that in the
year 2022, election for the post of Councillors as well as for the post of
President in Nagar Parishad, Majhauli, District Sidhi was conducted. The
election for the post of President of the said Municipal Council was
indirect election and all the elected Councillors, who were 15 in number,
were the voters for the post of President of the Council. The elections for
the post of Councillors were conducted in July, 2022. This election of
Councillors was notified on 18.07.2022 and thereafter the election
notification for the post of President was issued, the voters for which were
the elected Councillors. Election for the post of President was held on
10.08.2022 and in the said election, petitioner in CR No.110 of 2025
namely Shankar Prasad Gupta was declared elected candidate with
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
majority of 8:7 votes. His election was challenged by the runner-up
candidate namely Lavkesh Singh by filing election petition before the
District Judge which was filed in terms of Section 20 of the M.P.
Municipalities Act, 1961. In the said election petition, allegation was made
that the election petitioner was candidate in Ward No.6 and he has defeated
one Ruby Singh who is the wife of Videsh Singh, who is petitioner in CR
No.1135 of 2025. It was alleged that Videsh Singh being husband of Ruby
Singh, whom the petitioner had defeated for the post of Councillor of Ward
No.6, then hatched the conspiracy to anyhow prevent the election petitioner
from being elected as President of the Municipal Council in indirect
election. It was alleged that the declaration and affidavit of the returned
candidate who is petitioner in CR No.1110 of 2025, was defective
inasmuch as, the disclosure of pendency of criminal cases and he being
previously convicted by a Court of law was suppressed in the said affidavit
and declaration in nomination form, whereas he has previously been
convicted for offence under Section 323 IPC vide judgment dated
20.01.1998, and the said conviction has been confirmed upto the High
Court. Though in the said conviction, the ultimate sentence was only fine
to the tune of Rs.100/-, but it was nonetheless a conviction and even
though that conviction might not have in itself be a disqualification for
contesting election, but it was required to be disclosed by the returned
candidate in his nomination and affidavit. Therefore, it was contended that
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the nomination of the returned candidate was defective and in this manner
his nomination form also has been rejected.
4. The second ground of attack in the election petition was that a
conspiracy was hatched by Videsh Singh who is petitioner in CR No.1135
of 2025, who anyhow wanted that the election petitioner should not be
elected as President of the Municipal Council. It was alleged that in the
polling station, apart from the Presiding Officer, Polling Officer and
candidates, various other unwanted persons were present like Videsh Singh
who had hatched conspiracy to bring about defeat of election petitioner in
the election for the post of President of Municipal Council. It was alleged
that this person was offering illegal gratification to the elected Councillors
who were the voters, or was threatening the elected Councillors to vote in
favour of the returned candidate and in this manner, one voter namely
Govind Saket was threatened to vote in favour of the returned candidate. It
was alleged that a proxy was demanded by another Councillor Anita
Kanjar who had been elected from Ward No.1 and Videsh Singh was
appointed as proxy of Anita Kanjar, and Videsh Singh cast the vote on
behalf of Anita Kanjar in violation of the provisions of the Rules and in
fact, the vote of Anita Kanjar had been bought and just to ensure that the
vote goes to the returned candidate, therefore, the proxy cast the vote for
Anita Kanjar, though if Anita Kanjar was illiterate, then her husband and
son were literate persons and they should have been appointed proxies in
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
place of Videsh Singh who was not a related person to Anita Kanjar, nor he
was a neutral person because his wife had contested election for Councillor
and had been defeated. In this manner, by not permitting Anita Kanjar to
accompany the proxy in the place appointed for voting, the vote cast on
behalf of Anita Kanjar, was illegal.
5. It was further made a ground in the election petition that
confidentiality of votes is sacrosanct and by appointing Videsh Singh as
proxy of Anita Kanjar, the vote of Anita Kanjar had lost its confidentiality
which polluted the election process. It was further contended that two
Councillors, namely Himanshu Tiwari and Sushila Singh were given offer
of bribe of Rs.50,000/- each and after accepting the bribe, these two
Councillors voted in favour of the returned candidate and, therefore, there
was bribery of the voters which is a corrupt practice and the election stands
polluted.
6. The third main ground in the election petition was improper
acceptance of votes, inasmuch as, some of the voters have marked more
than one "X" mark against the name of the contesting candidate. It was
contended that there were two contesting candidates and the voter was
required to put one "X" mark against name of any of the two contesting
candidates. However, some of the voters put more than one "X" mark
against the name of a particular candidate and these two "X" marks were
placed against the name of returned candidate only so as to indicate that the
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
purchased votes have indeed been cast in favour of the returned candidate.
In this manner, it was pleaded in the election petition that those voters who
have been bought by money, have put more than one "X" mark i.e. have
put two "X" marks against the name of returned candidate and one voter
namely Govind Saket had put three "X" marks against the name of
returned candidate which is an identification mark on the vote and being
identification mark, the vote should have been rejected.
7. The election petition having been filed on these assertions, was
contested by the returned candidate by denying the allegations contained in
the said petition. In the reply, the returned candidate who was respondent
No.1 in the election petition, denied all the allegations of corrupt practice,
bribery to voters and also improper acceptance of votes. It was submitted
that his nomination was proper, inasmuch as about 24 years ago, he was
convicted under Section 323 IPC and sentenced with fine of Rs.100/-
which is not a disqualification and it was not required to be disclosed. It
was further contended that the question of suppression of fact in
nomination and affidavit would arise for the post of Councillor because the
alleged suppression is while filling up the nomination form for the post of
Councillor. There has been no challenge to the election of the returned
candidate to the post of Councillor and there is challenge to the election of
returned candidate to the post of President of the Municipal Council. There
is no allegation of suppression of that fact for the post of election to
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
President of Municipal Council, and even if the election petitioner feels
that the disclosure was not made for election to the post of Councillor, then
any of the contesting candidates in the said election or any of the electors
of the Constituency from which the returned candidate has been elected as
a Councillor, could have filed election petition but his election to the basic
post of Councillor went unchallenged and, therefore, this ground cannot be
raised for election to the post of President because there is no allegation of
suppression while submission of nomination forms for the post of
President.
8. Respondents No.1, 2, 4, 8, 9, 11 and 14 filed the reply opposing the
election petition. Respondents No.3, 5, 6, 7, 10, 12 and 13 to the election
petition did not file any reply to the election petition and this fact is very
much relevant for the purpose of this order.
9. The parties went to trial and after trial, it has been found that the
nomination of the returned candidate to the post of Councillor was invalid,
but, interference in election to the post of President, has not been made on
that ground because the election petition was not for election to the post of
Councillor.
10. It has been found that the vote cast by voter Anita Kanjar is in
violation of Rule 11 of the Rules of 2019. It has further been found that
there is corrupt practice in procuring votes from Himanshu Tiwari and
Sushila Singh by offering them bribe of Rs.50,000/- each. It is further
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found proved that the returned candidate has got votes cast with
identification marks. On these findings, the election of the returned
candidate has been declared null and void by the Election Tribunal.
11. The learned counsel for the returned candidate, who is petitioner
before this Court, has vehemently argued that the Election Tribunal has
gravely misconducted itself in conducting the trial of the election petition
in violation of basic rules of procedure to try election petition and in grave
ignorance of basic knowledge of election laws. It was vehemently argued
that there has been a manipulation with votes because at the asking of those
respondents who were supporting the election petitioner but had not filed
any written statement, the packet of original votes was opened by the
Election Tribunal and no observation was made by the Election Tribunal as
to the contents of the packet and the opened packet was twice sent to
Copying Section of the Election Tribunal and this packet remained open
for as many as 20 days before the Election Tribunal and the confidentiality
and sanctity of votes was violated in every possible manner before the
Election Tribunal.
12. It is further argued that the votes were marked exhibit at the asking
of those respondents who had not filed a reply to the election petition and
were in fact supporting the election petition. The packet of the votes was
marked as exhibit at the asking of those respondents who had not filed their
written statement. It was done during cross-examination of the election
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petitioner and after opening of packets, only the exhibits were marked on
the votes but no questions on the basis of votes were asked and the packet
was opened, exhibits were marked and packet was resealed, which was
only a conspiracy to anyhow mark exhibits on the ballots and nothing else.
Thereafter, application for certified copy of the cast ballots was moved
which in itself was a very surprising feature, but the Court had to permit it
because the votes had been marked as exhibits and then the packet was
opened, and opened packet was sent to Copying Section and received from
Copying Section in open condition and then opened packet was again sent
to Copying section after some days and it was only after 20 days that the
opened packet of original ballots was resealed by the Election Tribunal
which has gravely polluted the sanctity of election, not at the hands of the
Election Officers, but at the hands of the Election Tribunal.
13. It is vehemently argued before this Court that the election petitioner
has to first establish the foundational facts before praying to the Court to
open the original ballots. The original ballot box/ballot packets cannot be
lightly opened by the Election Tribunal unless the election petitioner
establishes foundational facts to justify opening of the ballots and once the
ballots were being opened, then at that very time, then and there, the
Tribunal should have made its observations but without making any
observation by the Tribunal that what is the situation inside the packet, the
contents of the packet were exhibited and resealed. Then the seal was
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opened and packet was sent in open condition to Copying Section. In this
manner, the packet which was sent to Copying Section in opened condition
on 31.08.2024 was resealed only on 20.09.2024. It is argued that as per the
election petitioner, the allegation was that two votes were procured by
bribery, one vote by threat and one vote illegally by proxy. The two votes
which were procured by bribe, the voters had been allegd to have put two
i.e. "XX" marks but the situation that exists as per certified copy obtained
by the present petitioner is that there are as many as five votes containing
two i.e. "XX" marks. As against the allegation of one vote having three i.e.
"XXX" marks, now there are two votes which are having three i.e. "XXX"
marks and one vote even has four i.e. "XXXX" marks. Even two votes now
have marks in favour of both the candidates but there was no allegation in
the election petition that any vote has "X" mark against both the candidates
and all these manipulations have been carried out with the original ballots
during the course of the trial of election petition while the opened ballot
papers were twice sent to copying section.
14. It is further argued that so far as Videsh Singh casting proxy of Anita
Kanjar is concerned, the provision of proxy is duly contained in the Rules
of 2019, as per Rule 11 thereof and it is not something which has been
illegally permitted by the Polling Officer because Anita Kanjar is an
illiterate lady and has only learnt to mark her signatures in Hindi. Since the
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
rule making authority in its wisdom has made the provision, therefore, no
error has been committed by the Election Officer/Returning Officer.
15. So far as the corrupt practice in offering bribery is concerned, it is
contended that three voters have simply given their affidavits and their
affidavits have been filed by the election petitioner and the election
petitioner has marked exhibits on these affidavits but these two voters
namely Sushila Singh and Himanshu Tiwari who in their affidavits have
stated that they had been given bribe of Rs.50,000/-, have not been brought
as witnesses before the Election Tribunal for cross examination. Therefore,
these affidavits do not form part of any evidence and could not be read
against the returned candidate and this aspect has been gravely
misunderstood by the Election Tribunal.
16. So far as the voter Govind Saket is concerned, whose affidavit is
also on record and who has stated that he was given threat to vote in favour
of the returned candidate, the same situation exists because this person was
also not offered for cross-examination before the Election Tribunal and,
therefore, his affidavit could not be relied as evidence. It is contended that
mere affidavit is not an evidence and even these affidavits were not filed as
per Order 18 Rule 4 CPC, but were filed as pieces of evidence and the
deponents thereof being duly available to give evidence before the Court
and to be cross-examined were not brought up before the Court for being
cross-examined, therefore, the affidavits of such persons could not form
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
any legal evidence to hold that the returned candidate had indeed offered
bribe to procure votes of these two voters. Therefore, it is argued that the
Election Tribunal has taken notice of such an evidence which is not an
evidence at all and if in this manner the affidavits of voters without being
cross-examined are accepted by Election Tribunals, then there will be utter
chaos and every election would be liable to be interfered with by the
Election Tribunals. Therefore, it is argued that the impugned order be set
aside.
17. Per contra, learned senior counsel appearing for the election
petitioner has vehemently argued that it is settled in law that ballot has to
contain mark of it having been cast only as per the provisions contained in
the Election Rules and bye-laws framed for that purpose. Any mark, which
is not in the manner prescribed in the Rules, is invalid and any ballot paper
containing identification mark, is also invalid. It is argued that the ballots
had identification marks, inasmuch as, they contain more than one "X"
mark against the ballots and, therefore, the Election Tribunal has rightly
held the ballots to be invalid as they contain identification marks.
18. It is further argued that the returned candidate had been previously
convicted and suppression of conviction is in itself a corrupt practice as in
that regard the law is now well settled and any incorrect disclosure made in
nomination and affidavit in itself is deemed to be a corrupt practice and
undue influence on the voters. As the returned candidate had suppressed
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
his previous conviction which had been upheld up to this Court, therefore,
notwithstanding that the sentence was only fine of Rs.100/-, since the
conviction having been sustained, the candidate was required to make
truthful disclosure in the nomination form about his previous conviction
which was not done, and that rendered his nomination to be invalid.
Therefore, it is argued that the impugned order passed by the Election
Tribunal is fully valid and deserves to be sustained and a person who has
procured election by unfair means and corrupt means should not be
restored back to his elected office. Therefore, it is prayed to reject all these
three petitions.
19. Heard.
20. In the present case, this Court has gone through the original record
of the Election Tribunal and has come across various disturbing facts from
the original record of the Election Tribunal. The election petition was filed
and written statements of the parties were received. Be that as it may be,
but one of the grounds of the election petition was that certain votes have
more than one casting mark (i.e. "X" mark) against the names of
candidates and in this manner, those persons who have accepted bribe to
cast vote in favour of the returned candidate, have put two i.e. "XX" marks
and since there was allegation that two such voters have accepted bribe,
therefore, the indirect pleading was that two votes must contain two i.e.
"XX" marks. At the time of deposition of election petitioner before the
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
Election Tribunal, though the original packet of original ballots had been
called by the Election Tribunal, but no prayer had been made by either the
election petitioner or the returned candidate to open the original ballots.
However, when the election petitioner had been cross-examined by the
returned candidate and his cross-examination was going on at the instance
of respondents No.3, 5, 6, 7, 10, 12 and 13 who seem to be indirectly
supporting the election petitioner and had not filed any reply to the election
petition, at their instance, the sealed packet of original ballots was opened
which itself is something which is totally unknown to election law. The
counsel for these respondents did not utter a single word nor a single
reason has been recorded by the Election Tribunal that why this packet of
original ballots has been opened and only in one line it has been mentioned
in the deposition sheet that the counsel for these respondents made a prayer
to open the original ballot envelope, and it is being opened because it is
before the Court. The Election Court did not make any observation
regarding the contents of the ballot envelope but only mentioned that three
bundles have red colour rubber band and one bundle has green colour
rubber band. Green colour rubber band bundle has 8 ballots which are
marked as Exhibits C-1 to C-8 and red colour rubber band packets were
opened and one packet has 7 ballots which have been marked as exhibits
C-9 to C-15. The two other red rubber band packets had nomination forms,
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
declaration forms etc. which have also been marked as Exhibits P-16 to
P-21.
21. The Election Tribunal should not have opened the original ballots at
the asking of those electors who had not even filed written statement. Even
otherwise, it is settled in law that ballot papers can be opened even at the
instance of election petitioner only when the election petitioner first leads
the evidence and prima facie establishes corrupt practice which
necessitates inspection of the ballots necessary. However, the Tribunal did
not record any satisfaction that why it feels the inspection of ballots
necessary and even when the ballots had been opened, the Tribunal did not
record any single observation regarding the condition of the ballots which
was in dispute in the election petition and at least some observation should
have been recorded to note that what is the condition of the ballots, that
how many ballots have single "X" mark and how many ballots have double
"X" marks and how many ballots have triple "X" marks. However, the
Tribunal chose not to write anything at all and simply opened the envelope
and then after marking exhibits resealed the envelope. Most interestingly,
the counsel for respondents who had not filed any reply, did not ask a
single question after opening of the ballot paper envelope to the witness.
Therefore, it is clear that the opening of original ballots was nothing but a
conspiracy before the Election Tribunal that anyhow the ballot papers have
to be opened and marked as exhibits.
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
22. Thereafter, after marking exhibits on the ballots and the other
documents received from inside the sealed packet, not a single question
was asked by counsel for respondent No.3 etc. on whose asking the
original ballots had been opened by the Election Tribunal and the Tribunal,
for the sake of repetition, it is again being repeated, that it did not mark a
single note either in the order sheet or in the deposition sheet that after
inspection of ballots, what is the condition of ballots i.e. how many ballots
have how many "X" marks.
23. Thereafter, as if it was a next step in this conspiracy, an application
was filed for obtaining certified copies of the ballot papers on behalf of the
election petitioner through his counsel and the Court called the original
ballot packet, opened it in front of counsel for all the parties and then sent
the original packet in opened condition to the copying section which might
have been through some clerk or peon of the Election Court, but one thing
is certain that the Presiding Officer did not accompany the opened ballots
to the copying section, nor was she supposed to accompany the packet to
the copying section but in any manner it should have been ensured by the
Presiding Officer that no manipulation occurs with the ballot papers when
the original ballot papers in open condition were being sent to the copying
section through Clerk or Peon of the court. The Court could have ensured
photocopy before the Court itself, and then could have re-sealed the packet
then and there. However, it was thought appropriate by the Election Court
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
to put a Peon of Clerk in-charge of the open packet containing original
ballots.
24. Thereafter another application was filed by another Advocate
seeking certified copy on 04.09.2024 and again the ballot papers were sent
to the copying section and received back from the copying section. These
ballot papers in original remained unsealed in the file of the court up to
20.09.2024 and it was only on 20.09.2024 that the court realized that this
packet should now be resealed. On 20.09.2024, the order sheet mentions
that the court asked counsel for all the parties that whether someone else
wants to take certified copy of the ballots and then when all the Advocates
said that they do not want to take certified copy of the original ballots, the
Election Court then ordered that the ballot papers be resealed. Such a
procedure adopted by the election tribunal is unheard of and unknown in
election law. It appears that the Presiding Officer did not have any idea that
she is dealing with original ballot papers, which is not a routine document
like a sale deed in a normal civil case. Even when a sale deed in a normal
civil case is dealt with then its photocopy is always there in the record of
the court as well as in the file of the rival parties. However, these were the
original ballots and had been for the first time opened by the court and the
court was repeatedly allowing to take certified copy of the original ballots
by sending the original ballots to the copying section through peon or clerk
and for a good period of 20 days, the original ballots remained unsealed.
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
When the ballots were opened on 12.08.2024, no observation was made by
the court regarding condition of the ballots but on that date the ballots had
been resealed. When on 31.08.2024 when the ballot papers were again
opened to be sent to certified copying section, then at least before losing
control of the unsealed ballots, Presiding Officer should have made
observation regarding condition of the original ballots which the court
failed to do and by this act of the Election Court, the evidence in the case
has been manipulated and lost, which cannot be retrieved now and this is
on account of nothing, but sheer negligence of the Presiding Officer who
does not seem to have any idea that in what manner the trial of election
cases is to be conducted. The proceeding conducted by the Election Court
while opening the original packet of ballots on 31.08.2024 and sending it
unattended to the copying section is as under.
"पुन ः-
आवेदक क ओर से अिधव ा ी xxxxx उप थत तथा अनावेदक .-1
क ओर से ी xxxxx अिधव ा उप थत ह, उनके सम .पी.-1 लगायत
.पी.-21 को संधा रत करने वाला सीलबंद िलफाफा खोला गया एवं .पी.-
1 लगायत .पी.-21 को करण के साथ मय िलफाफ के संल न कया
गया। अतः विध अनुसार .पी.-1 लगायत .पी.-21 क ितिल प दान
कये जाने हे तु करण ितिल प अनुभाग सीधी क ओर भेजा जाए।
(कु. उिमला यादव)
थम अपर जला यायाधीश सीधी के
यायालय के तृतीय अित र जला
यायाधीश जला-सीधी (म. .)"
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
25. After receiving the packet back, it was not resealed, and again sent to
Copying section on 04.9.2024, and was re-sealed only on 20.9.2024. The
original record of the election has been mishandled by the election tribunal
and the election tribunal has knowingly or unknowingly, ensured
destruction of the evidence. Though the law in relation to opening of
ballots and inspection of ballots by the Election Tribunal is very clear, but
for the sake of clarity, it is being reiterated in this order. It has been held by
the Hon'ble Apex Court in the case of P.K.K. Shamsudeen v. K.A.M.
Mappillai Mohindeen, (1989) 1 SCC 526 as under:-
"11. In Ram Sewak Yadav v. Hussain Kamil Kidwai [AIR 1964
SC 1249 : (1964) 6 SCR 238 : 26 ELR 14] this Court has set out the
circumstances when an order for inspection of ballot papers can be
ordered in the following terms: (SCR pp. 244-45)
"An order for inspection may not be granted as a matter of course:
having regard to the insistence upon the secrecy of the ballot
papers, the court would be justified in granting an order for
inspection provided two conditions are fulfilled:
(i) that the petition for setting aside an election contains
an adequate statement of the material facts on which
the petitioner relies in support of his case; and
(ii) The Tribunal is prima facie satisfied that in order to
decide the dispute and to do complete justice between
the parties inspection of the ballot papers is necessary."
But an order for inspection of ballot papers cannot be granted to
support vague pleas made in the petition not supported by material
facts or to fish out evidence to support such pleas. The case of the
petitioner must be set out with precision supported by averments of
material facts. To establish a case so pleaded an order for
inspection may undoubtedly, if the interests of justice require, be
granted. But a mere allegation that the petitioner suspects or
believes that there has been an improper reception, refusal or
rejection of votes will not be sufficient to support an order for
inspection."
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
26. The aforesaid judgment was followed by the Hon'ble Supreme Court
by a three-Judge Bench in Vadivelu v. Sundaram, reported in (2000) 8,
SCC 355 and it was held as under:-
"8. In Satyanarain Dudhani v. Uday Kumar Singh [1993 Supp
(2) SCC 82] it was held that the secrecy of the ballot papers cannot
be permitted to be tinkered lightly and an order of re-count cannot
be granted as a matter of course. Only when the High Court is
satisfied on the basis of material facts pleaded in the petition and
supported by the contemporaneous evidence, that the re-count can
be ordered. When there was no contemporaneous evidence to show
any irregularity or illegality in the counting, ordinarily, it would
not be proper to order re-count on the basis of bare allegations in
the election petition.
9. In Jitendra Bahadur Singh v. Shri Kirshna Behari [(1969) 2
SCC 433 : AIR 1970 SC 276] the election petitioner, who claimed
to be a counting agent filed election petition alleging that there was
irregularity and illegality in the counting of votes. The learned
Single Judge, who was trying the election petition permitted the
petitioner to inspect the packets of the ballot papers containing the
accepted as well as the rejected votes of the candidates. This Court,
while allowing the appeal, held that the basic requirements to be
satisfied before the Election Tribunal can permit the inspection of
ballot papers are that (1) the petition for setting aside the election
must contain an adequate statement of material facts on which the
petitioner relies in support of his case, and (2) the Tribunal must be
prima facie satisfied that in order to decide the dispute and to do
complete justice between the parties, inspection of ballot papers is
necessary. The material facts required to be stated are those facts,
which can be considered as materials supporting the allegations
made. In other words, they must be such facts as to afford a basis
for the allegations made in the petition.
10. In D.P. Sharma v. Commr. and Returning Officer [1984
Supp SCC 157] allegations were made in the election petition that
there was discrepancy between the total number of ballot papers
issued and ballot papers taken out and counted from the ballot
boxes. This Court held that the discrepancies alleged in the
statements prepared under Rules 45 and 56 of the Conduct of
Election Rules, 1967 do not make out a case for directing a re-
count of votes especially when the discrepancy is marginal and
insignificant. In para 4 of the said judgment, it was held that in
order to obtain re-count of votes, a proper foundation is required to
be laid by the election petitioner indicating the precise material on
the basis of which it could be urged by him with some substance
that there has been either improper reception of invalid votes in
favour of the elected candidate or improper rejection of valid votes
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
in favour of the defeated candidate or wrong counting of votes in
favour of the elected candidate, which had in reality been cast in
favour of the defeated candidate.
12. In Ram Sewak Yadav v. Hussain Kamil Kidwai [AIR 1964
SC 1249: (1964) 6 SCR 238] this Court held that an order for
inspection of ballot papers can be granted under the following
circumstances:
"An order for inspection may not be granted as a matter of course:
having regard to the insistence upon the secrecy of the ballot
papers, the Court would be justified in granting an order for
inspection provided two conditions are fulfilled:
(i) that the petition for setting aside an election contains an
adequate statement of the material facts on which the
petitioner relies in support of his case; and
(ii) The Tribunal is prima facie satisfied that in order to
decide the dispute and to do complete justice between the
parties inspection of the ballot papers is necessary.
But an order for inspection of ballot papers cannot be granted to
support vague pleas made in the petition not supported by material
facts or to fish out evidence to support such pleas. The case of the
petitioner must be set out with precision supported by averments of
material facts. To establish a case so pleaded an order for
inspection may undoubtedly, if the interests of justice require, be
granted. But a mere allegation that the petitioner suspects or
believes that there has been an improper reception, refusal or
rejection of votes will not be sufficient to support an order for
inspection."
27. It has been held by the Hon'ble Supreme Court in the case of
Chaitanya Kumar Adatiya v. Sushila Dixit, reported in (1976) 3 SCC
97, that inspection of ballot papers cannot be allowed as a matter of course
and first a prima facie case should be made out. The Hon'ble Supreme
Court held as under:-
"6. This Court in a series of decisions has held that an order
for inspection of election papers cannot be made as a matter of
course and that it is only when on the basis of evidence adduced
allegations of irregularity are prima facie established and the
Court is prima facie satisfied that the making of such an order is
necessary to do complete justice between the parties that an order
for inspection would be justified. The purpose of inspection is not to
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
enable the election petitioner to fish for evidence. We do not think
that the High Court was wrong in refusing the prayer for inspection
in this case; the substance of the evidence and the other
circumstances referred to above clearly show that the petitioner
had failed to make out a prima facie case for inspection."
28. In the case of Jagjit Singh (Dr.) v. Giani Kartar Singh, reported
in AIR 1966, SC 773, the Hon'ble Supreme Court has held as under:-
"35. We are not prepared to accept this contention. The order
passed by the Tribunal clearly shows that the Tribunal did not
apply its mind to the question as to whether sufficient particulars
had been mentioned by the appellant in his application for
inspection. All that the Tribunal has observed is that a prima facie
case has been made out for examining the ballot papers; it has also
referred to the fact that the appellant has in his own statement
supported the contention and that the evidence led by him prima
facie justifies his prayer for inspection of ballot papers. In dealing
with this question, the Tribunal should have first enquired whether
the application made by the appellant satisfied the requirements of
Section 83(1) of the Act; and, in our opinion, on the allegations
made, there can be only one answer and that is against the
appellant. We have carefully considered the allegations made by
the appellant in his election petition as well as those made by him
in his application for inspection, and we are satisfied that the said
allegations are very vague and general, and the whole object of the
appellant in asking for inspection was to make a fishing enquiry
with a view to find out some material to support his case that
respondent No. 1 had received some invalid votes and that the
appellant had been denied some valid votes. Unless an application
for inspection of ballot papers makes out a proper case for such
inspection, it would not be right for the Tribunal to open the ballot
boxes and allow a party to inspect the ballot papers, and examine
the validity or invalidity of the ballot papers contained In it. If such
a course is adopted, it would inevitably lead to the opening of the
ballot boxes almost in every case, and that would plainly be
inconsistent with the scheme of the statutory rules and with the
object of keeping the ballot papers secret. That is why we are
satisfied that the High Court was right in coming to the conclusion
that the appellant had failed to make out a case for the inspection of
the ballot boxes in this case."
29. The Election Tribunal in the present case did not record any prime
facie satisfaction that why it is allowing inspection of the ballot papers and
why it is opening the envelope of the ballot papers, and even if it had some
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
reasons in its mind to allow inspection of the original ballots, then again it
was obligatory for the Election Tribunal to have ensured the secrecy and
confidentiality of the ballots and at least should not have allowed the
original ballots to be sent to copying section without first making
observation regarding the allegations which the election petition contained
regarding the condition of the ballots. The Election tribunal was under
obligation to record that there are allegations that two ballots have two X
marks while one ballot has three X marks, then what is the condition of the
ballots found in the sealed packet when it has been opened by the Election
Court. Neither the court made any observation nor the counsel at whose
instance the ballots were opened, did ask even a single question regarding
the ballots and it seems clear to this Court that it was only a ploy to get the
ballots exhibited and sent to the copying section before the court could
made any observation on the condition of ballots.
30. The original ballots were opened at the time of cross examination of
election petitioner, but not a single question was asked. However, many
months later, questions as to condition of the ballots were put to the
returned candidate in his cross examination and in that cross examination
in paragraph 21 to 28, certain questions were asked regarding condition of
8 ballot papers from exhibit C/1 to C/8 which were part of green rubber-
band sub-packet containing votes of returned candidate. This deposition
was being conducted in April 2025 much after the ballot papers had been
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
opened and remained opened for 20 days in the file of the court and the file
was twice sent to copying section which was in August-September 2024.
From a perusal of deposition of DW/1 Shankar Prasad Gupta, it is clear
that the status of the ballots is as under:
Exhibit Remarks
C/1 Contains "X" marks against name of both candidates.
C/2 Contains 2 "X" marks but candidate not mentioned.
C/3 Contains 3 "X" marks but candidate not mentioned.
C/4 Contains 2 "X" marks, one each against name of each candidate
C/5 Contains 2 "X" marks against name of returned candidate.
C/6 Contains 2 "X" marks against name of returned candidate.
C/7 Contains 1 "X" mark against name of returned candidate.
C/8 Contains 1 "X" mark against name of returned candidate.
For ready reference, the relevant part of deposition of the returned
candidate is as under :-
"आवेदक का मतप के संबंध म पूछने का विधक अिधकार है और उभयप
ारा पूव म भी मतप क स या पत ितिल प ा कर ली गई है । अतः
उभयप अथात आवेदक एवं अनावेदक Øमां० 1 के अिधव ाओं के सम करण
म संल न सीलबंद िलफाफा खोला गया।
21. सा ी को दश सी-1 का मतदान प दखाकर पूछे पर सा ी ने य
कया क लवकेश िसंह के नाम के सामने एक Økस का िनशान लगा है तथा
शंकर गु ा के नाम के सामने एक Økस का िनशान लगा है । सा ी ने वतः कहा
क जब चुनाव के समय पीठासीन अिधकार ने मतदान प दखाया था उस
समय केवल मेरे नाम के आगे Økस का िनशान लगा हुआ था। सा ी से यह पूछे
जाने पर क दश सी-1 पर दोन ह Økस के िनशान नीले रं ग से लगे हुए है तो
सा ी ने दश सी-1 को दे खकर उ र कहा क मुझे अलग अलग कलर के Økस के
िनशान दख रहे ह। यायालय ारा- दश सी-1 म नीले कलर के दो Økस के
िनशान बने हुए है ।
NEUTRAL CITATION NO. 2025:MPHC-JBP:69217
C.R. Nos.1110/2025, 1134/2025 & 1135/2025
22. सा ी को दश सी-2 का द तावेज दखाकर पूछा गया क कसके नाम
के आगे िच ह लगे है तो सा ी ने दश सी-2 को दे खकर उ र दया क दश
सी-2 म दो Økस लगे हुए है जो अलग-अलग कलर के लगे हुए है । फर सा ी ने
कहा क अलग अलग आकार के लगे हुए है । यायालय ारा- दश सी-2 पर दो
Økस के िनशान नीले रंग से लगे है ।
23. सा ी को दश सी-3 का द तावेज दखाकर पूछा गया क दश सी-3 पर
कतने िनशान बने है तो सा ी ने उ र दया कया दश सी-3 पर तीन िनशान
नीले कलर के बने हुए। सा ी ने वतः कहा क अलग-अलग आकार/ डजाईन के
बने हुए है ।
24. सा ी को दश सी-4 का द तावेज दखाकर पूछा गया क दश सी-4 पर
कतने िच ह बने हुए है तो सा ी ने उ र दया कया क दो Økस के िनशान
लगे हुए जो अलग-अलग आकार के है । यायालय ारा- दश सी-4 म लवकेश
िसंह के नाम के आगे एक Økस का िनशान नीले रं ग से व शंकर गु ा के नाम के
आगे एक Økस का िनशान नीले रं ग से लगा हुआ है |
25. सा ी को दश सी-5 का द तावेज दखाकर पूछा गया क दश सी-5 पर
कतने िच ह लगे हुए है कस याह से लगे है एवं कसके नाम के आगे लगे है
तो सा ी ने दश सी-5 को दे खकर उ र दया क दो िच ह लगे हुए है जो शंकर
गु ा के नाम के आगे लगे है और नीले रं ग के है । आकार अलग-अलग है ।
26. सा ी को दश सी-6 का द तावेज दखाकर पूछा गया क दश सी--6
पर कतने िच ह लगे हुए है तो सा ी ने दश सी-6 दे खकर उ र दया क दो
िच ह लगे हुए जो शंकर गु ा के नाम के आगे लगे हुए है जो नीले रं ग के है एवं
आकार अलग-अलग है ।
27. सा ी को दश सी-7 का द तावेज दखाकर पूछा गया क दश सी-7 पर
कतने िच ह लगे हुए है तो सा ी ने दश सी-7 दे खकर उ र दया क एक ह
िच ह शंकर गु ा के नाम के आगे लगा हुआ है जो नीले रं ग से लगा हुआ है ।
28. सा ी को दश सी-8 का द तावेज दखाकर पूछा गया क दश सी-8 पर
कतने िच ह लगे हुए है तो सा ी ने दश सी-8 दे खकर उ र दया क एक
िच ह शंकर गु ा के नाम के आगे नीले रं ग से लगा हुआ है ।"
31. The certified copies of ballot papers have been obtained by both the
parties. During course of hearing the counsel for the returned candidate had
shown photocopy of the certified copy of the ballots to indicate that in this
photocopy in as many as 5 ballots there are 2 "X" marks against name of
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
one candidate and there are 2 ballots in which marks have been made
against names of both the candidates and in one of the ballots there are
even 4 "X" marks which is valid in favour of the election petitioner and
even in the ballots of election petitioner there is one ballot containing 3
"X" marks.
32. The learned senior counsel for the election petitioner could not
dispute this photocopy but insisted upon this court to open the original
ballot paper envelope to see for itself that what is the condition of the
ballots. The ballot paper envelope has been received alongwith the original
record of the Election Tribunal. However looking to the questions asked to
the returned candidate DW-1 in paragraph 21 to 28 of his deposition, it is
clear that there are a 3 ballot papers in favour of the returned candidate
which contain 2 "X" marks, one contains 3 "X" marks, and even two of the
ballot papers contain marks against name of both the candidates. This
Court was not inclined to open the envelope for another reason, that the
nature of sealing of the envelope is such that, any person can take out the
ballots and then again place back those, because the lateral side joint of
paper of the envelope is not sealed, and the joint is half-open. Therefore,
this seal of the packets, is no seal at all and gives a free-for-all to everyone
to manipulate the ballots. The ballots have lost all their sanctity. They have
been sealed in the worst possible manner, and that is happening before a
judicial Court. The original record must have been to the record room of
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
the District Court, of the High Court, as well in transit from Sidhi to
Jabalpur. If in such a condition, the original ballots have to be sealed, then
it is clear that it is nothing, but an example of manipulation. The condition
of the ballot envelope, as sent to the High Court is as under:-
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
33. These observations contained in para-30 above are only in respect of
the 8 ballots which were in the sub-packet of the returned candidate in
Green rubber band inside the envelope because the questions as against the
7 ballot papers in the sub envelope of defeated candidate were not even
asked. However from the questions asked regarding these 8 ballots it is
clear that the condition of ballots is not as per the pleadings of the election
petition because there was no pleading in the election petition that more
than 2 ballots have 2 X marks. There was no pleading that any ballot
contains marks in favor of both the candidates but when the questions were
asked then it was found that in the packet of returned candidate, which has
been marked as Exhibit C/1 to C/8, 3 ballots have 2 X marks, 1 has 3 X
marks and 2 have marks in favor of both the candidates. There was no
pleading in the election petition that any vote was invalid in as much as it
contained mark against names of both candidates but that is the situation
now and it indicates that there is some manipulation with the ballots and
when the ballot papers were opened by the Election court without making
any observation and sent it to copying section twice over in space of 20
days, then it is a best case where there is strong inference of destruction of
evidence and in the opinion of this court, these ballot papers cannot be
considered in evidence at all because there is high possibility that there is
manipulation with the ballots. The condition of the ballots does not even
match with the pleadings of the election petition itself and it is clear that
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
some manipulations have been conducted inasmuch in two ballots, mark is
now there against the name of both candidates.
34. As the evidence in the present case has been destroyed by aforesaid
negligence, therefore the Election court could not have relied on this
evidence to consider that there are identification marks on ballots. Even if
2 "X" marks are deemed to be identification marks, then the identification
marks could have been in the manner that once there are 8 voters then a
particular voter would put 1 mark, another 2 marks, another 3 marks, and
so on. If 3 voters have put 2 "X" marks, they cannot be identified because
the allegation in the election petition was that 2 voters have put "X" marks
but the votes which have been found after they remained open for 20 days,
has the position that 3 votes are having 2 "X" marks.
35. Therefore, in the considered opinion of this court, the finding of the
Election court on the basis of condition of the ballots cannot be sustained
and since the evidence of the ballots is deemed to have been destroyed by
manipulation, no findings on the basis of condition of ballots could have
been recorded by the election tribunal.
36. So far as the other ground of bribery and threat to voters is
concerned, two voters namely Sushila Singh and Himanshu Tiwari had
submitted affidavits that they had been given Rs. 50,000/- each as a legal
gratification to vote in favor of returned candidate while Govind Saket had
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C.R. Nos.1110/2025, 1134/2025 & 1135/2025
given affidavit to contend that he voted under duress and threat. Affidavits
of voters receiving illegal gratification are Exhibit P/8 collectively while
affidavit of Govind Saket who stated to have voted under duress is Exhibit
P/9. However, these voters were not offered for cross examination before
the election tribunal. It is surprising that the election tribunal has relied on
assertions on affidavits of voters who despite they being alive and despite
being parties to the election petition, who did not choose to enter the
witness box for their cross examination. The law is very clear that even if
there is testimony before the court then the testimony which has not been
offered for cross examination cannot be read. However, in this case these
affidavits are not even affidavits under Order 18 Rule 4 CPC but are
simpliciter affidavits on stamp papers filed along with the election petition
and marked as annexures to the election petition. It is settled in law that
affidavit is not an evidence as per Section 3 of the Evidence Act.
37. In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra,
reported in (2013) 4 SCC 465 it has been held as under:-
"31. It is a settled legal proposition that an affidavit is not
"evidence" within the meaning of Section 3 of the Evidence Act,
1872 (hereinafter referred to as "the Evidence Act"). Affidavits are,
therefore, not included within the purview of the definition of
"evidence" as has been given in Section 3 of the Evidence Act, and
the same can be used as "evidence" only if, for sufficient reasons,
the court passes an order under Order 19 of the Code of Civil
Procedure, 1908 (hereinafter referred to as "CPC"). Thus, the
filing of an affidavit of one's own statement, in one's own favour,
cannot be regarded as sufficient evidence for any court or tribunal,
on the basis of which it can come to a conclusion as regards a
particular fact situation. (Vide Sudha Devi v. M.P.
NEUTRAL CITATION NO. 2025:MPHC-JBP:69217
C.R. Nos.1110/2025, 1134/2025 & 1135/2025
Narayanan [(1988) 3 SCC 366 : AIR 1988 SC 1381] and Range
Forest Officer v. S.T. Hadimani [(2002) 3 SCC 25 : 2002 SCC
(L&S) 367 : AIR 2002 SC 1147] )
32. While examining a case under the provisions of the Industrial
Disputes Act, 1947, this Court, in Bareilly Electricity Supply Co.
Ltd. v. Workmen [(1971) 2 SCC 617 : AIR 1972 SC 330] ,
considered the application of Order 19 Rules 1 and 2 CPC, and
observed as under : (SCC p. 629, para 14)
"14. ... But the application of principles of natural
justice does not imply that what is not evidence, can
be acted upon. On the other hand, what it means is
that no material can be relied upon to establish a
contested fact which are not spoken to by the persons
who are competent to speak about them and are
subjected to cross-examination by the party against
whom they are sought to be used. When a document is
produced in a court or a tribunal, the questions that
naturally arise are : is it a genuine document, what
are its contents and are the statements contained
therein true? ... If a letter or other document is
produced to establish some fact which is relevant to
the inquiry, the writer must be produced or his
affidavit in respect thereof be filed and opportunity
afforded to the opposite party who challenges this
fact. This is both in accord with the principles of
natural justice as also according to the procedure
under Order 19 of the Code and the Evidence Act,
both of which incorporate the general principles."
33. In Needle Industries (India) Ltd. v. Needle Industries Newey
(India) Holding Ltd. [(1981) 3 SCC 333 : AIR 1981 SC 1298] , this
Court considered a case under the Companies Act, and observed
(at SCC p. 373, para 63) that, "it is generally unsatisfactory to
record a finding involving grave consequences [with respect] to a
person, on the basis of affidavits and documents [alone,] without
asking that person to submit to cross-examination." However, the
conduct of the parties may be an important factor with regard to
determining whether they showed their willingness to get the said
issue determined on the basis of affidavits, correspondence and
other documents, on the basis of which proper and necessary
inferences can safely and legitimately be drawn.
34. In Ramesh Kumar v. Kesho Ram [1992 Supp (2) SCC 623 : AIR
1992 SC 700] , this Court considered the scope of application of the
provisions of Order 19 Rules 1 and 2 CPC in a rent control matter,
observing as under : (SCC p. 628, para 9)
"9. ... The court may also treat any affidavit filed in
support of the pleadings itself as one under the said
provision and call upon the opposite side to traverse
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it. The court, if it finds that having regard to the
nature of the allegations, it is necessary to record oral
evidence tested by oral cross-examination, may have
recourse to that procedure."
35. In Standard Chartered Bank v. Andhra Bank Financial Services
Ltd. [(2006) 6 SCC 94] , this Court while dealing with a case under
the provisions of the Companies Act, 1956, while considering
complex issues regarding the markets, exchanges and securities,
and the procedure to be followed by special tribunals, held as
under : (SCC pp. 121-22, para 48)
"48. While it may be true that the Special Court has
been given a certain amount of latitude in the matter
of procedure, it surely cannot fly away from
established legal principles while deciding the cases
before it. As to what inference arises from a
document, is always a matter of evidence unless the
document is self-explanatory. ... In the absence of any
such explanation, it was not open to the Special Court
to come up with its own explanations and decide the
fate of the suit on the basis of its inference based on
such assumed explanations."
36. Therefore, affidavits in the light of the aforesaid discussion are
not considered to be evidence, within the meaning of Section 3 of
the Evidence Act. However, in a case where the deponent is
available for cross-examination, and opportunity is given to the
other side to cross-examine him, the same can be relied upon. Such
view, stands fully affirmed particularly, in view of the amended
provisions of Order 18 Rules 4 and 5 CPC. In certain other
circumstances, in order to avoid technicalities of procedure, the
legislature, or a court/tribunal, can even lay down a procedure to
meet the requirement of compliance with the principles of natural
justice, and thus, the case will be examined in the light of those
statutory rules, etc. as framed by the aforementioned authorities."
38. In the case of Radhe Shyam Dhakar v. Jai Vadhan Singh reported
in 2017 Supreme MP 1127, it has been held under.
"56. Therefore, in view of such evidence as has come on record, it
is apparent that the election petitioner has failed to discharge his
burden to lead such evidence, which can be considered to be
containing all material particulars and have been proved by cogent
evidence, as has been held in the case of D.Venkata Reddy (supra).
There is also material to support that the affidavits were prepared
by the counsel, as none of the witnesses has deposed that they
visited Jabalpur, whereas as per Rajeev Nayan Shama (PW9),
affidavits were prepared and merely signing the affidavits in the
light of the law laid down in the case of Pradumn Singh (supra),
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will lead to an inference that the statement produced on behalf of
the witnesses is not their actual statement. Similarly, in the light of
the law laid down in the case of Ram Sharan Yadav (supra), the
charge of a corrupt practice being in the nature of criminal charge
should be proved beyond reasonable doubt but this burden has not
been discharged by the election petitioner. Therefore, in the light of
the law laid down by the Hon'ble Supreme Court in the case of
Abdul Hussain (supra), there is no sufficient material to vacate the
mandate of the ballets returning respondent No.1 as a successful
candidate. In fact, in the case of Ram Singh (supra), it is view of the
Hon'ble Supreme Court that even if two views are possible, one in
favour of the elected candidate and other against him, then possibly
election should not be declared void. In the present case, since
petitioner has failed to lead any evidence to show that calendars
and pamphlets were distributed after declaration of election
programme and coming into force of model code of conduct to
influence the voters in the name of religion and also there is
preponderance of evidence contradicting the stand of the petitioner
in regard to watching respondent No.1 and his election agent
distributing such calendars and pamphlets or exhorting the voters
to cast their votes in the name of their religion and God and
Goddess and also the fact that in the report of SDOP (Annexure R-
1) it has come on record that SDOP had taken statement of
Pandits/Pujaris of the concerned temples and they all denied
distribution of such material during election period but admitted
such distribution during Navdurga i.e. prior to declaration of
election. Any event prior to election will not come within the
definition of corrupt practice as has been defined under section 123
(3) of the R.P. Act. The onus was on the petitioner to examine the
proprietor/partner of the firm, which allegedly printed the disputed
material, to bring out possible contradictions but the petitioner has
failed to discharge this burden. Even otherwise, in the light of the
law laid down in the case of Samant N. Balakrishna (supra), no
efforts were made to examine the proprietor/partner of the firm
"Advance Line" and asking him to produce the original blue
print/screen so also the date on which such material was printed
only to demonstrate the weakness in the case of the petitioner.
Therefore, merely by filing documents the petitioner has failed to
prove its contents and also substantiate the allegation that any
votes were solicited in the name of Hindu God and Goddes. Thus,
this Court is of the opinion that Issue No. (i) is not proved so also
the Issue No. (ii) and (iii)".
39. It is settled in law that proof of corrupt practice requires strict proof
and no inference as to corrupt practice can be made. The trial of election
petition in allegation of corrupt practice is a quasi-criminal nature having
burden of proof on election petitioner to prove ingredients of charges. In
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Manohar Joshi v. Damodar Tatyaba reported in (1991) 2 SCC 342 it has
been held as under:-
"20. A reading of all the aforesaid provisions together would show
that the proceedings pursuant to the notice issued by the High
Court under Section 99 of the Act are of a quasi-criminal nature. It
has also been held so by this Court in so many words, in some of
the decision: See D.P. Mishra v. Kamal Narain Sharma [(1970) 3
SCC 558 : (1971) 3 SCR 257] and Rashim Khan v. Khurshid
Ahmed [(1974) 2 SCC 660 : (1975) 1 SCR 643] . Where, therefore,
a corrupt practice is alleged, the trial of an election petition on
such charge is of a quasi-criminal nature, and a heavy burden rests
on the person alleging the corrupt practice to prove strictly all the
ingredients of the charge. This is as it should be, since the naming
of a person as having committed a corrupt practice has a serious
consequence of disqualifying him from being chosen as or from
being member of any House of the Parliament or of the Legislative
Assembly or Council of a State for a period up to 6 years."
40. Therefore, it is clear that the election petitioner failed to prove the
allegations of corrupt practice by not putting any of the three voters to
cross examination who had submitted affidavits that they had received
inducement or threat to vote in favour of returned candidate.
41. Therefore, this court is of the considered opinion that the finding as
to corrupt practice is based upon no evidence and the election petitioner
failed to discharge his burden of proving the allegations.
42. So far as the acceptance of vote of proxy Anita Kanjar through proxy
of Videsh Singh is concerned, it is duly permitted as per Rules of 2019.
This relevant as contained in Rules 10 and 11 are as under:-
"10. Ballot Box and Voting method.. (1) When the election is to
be done through ballot papers, then the Presiding Officer shall
arrange for such a ballot box, to be made in such a manner that
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ballots can be casted in it but cannot be removed without opening
the lock.
(2) The Presiding Officer, immediately before the
commencement of voting, shall inform the Councillors present
that the ballot box is empty and shall then lock it and place it for
voting.
(3) Each Councillor present in the meeting shall be given a
ballot paper signed by the Presiding Officer, on which names of
all the candidates participating in the election shall be printed in
Form-A or shall be written in the legible letters.
(4) Each Councillor shall go to the place appointed for the
purpose of voting in the order prescribed by the Presiding Officer
and put a mark of (x) against the candidate to whom he wishes to
vote. No Councillor shall vote for more than one candidate. After
this the ballot will be folded and the vote will be casted in the box.
11. Assistance in voting to illiterate, blind and senile
Councillors. (1) If a Councillor who is illiterate, blind or senile
and is unable to read the name of the candidate or is unable to
mark the ballot as per his/her choice without any assistance, then
the Presiding Officer shall give permission to such a Councillor to
carry any of his/her companion, who is not less than 18 years of
age, with his/her in to the voting room to put the mark as per
his/her choice as per sub-rule (4) of rule 10 against the name of
the candidate:
Provided that no person shall be allowed to work as companion
with more than one Councillor:
Provided further that before allowing any person to work as
companion of any Councillor, he/she shall be required to make
this declaration in Form-B that he/she has not worked with any
Councillor as companion:
Provided also that the voter shall not get the benefit of illiteracy,
if he/she has a certificate of being literate and the physical
disability shall be such that he cannot vote, and if the voter is
handicapped then it is necessary to produce disability certificate,
(2) The Presiding Officer shall keep the record of all the cases
under this rule.
43. As per rule 11, an illiterate voter is entitled to seek assistance of
proxy and it is not disputed in the present case that she had indeed made an
application to appoint Shri Videsh Singh as proxy. There is no allegation
by Anita Kanjar that the proxy has misused the mandate given to him and
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that proxy has voted in favour of some other candidate who had not been
mandated by the said voter. Here a third person is coming up that the proxy
has voted as per his own wish but the person who had given the proxy has
not made such allegation. What transpired between the proxy and the
Principal, is between these two persons and once these two persons inter-se
have not made allegations against each other then any third person cannot
lead the court to infer that what transpired between the principal and the
proxy. Second ground which was raised was that the proxy was not made
to approach the ballot box and the ballot box was approached by the proxy
only and the original elector did not approach the ballot box. However, it is
seen that as against the provisions of Conduct of Election Rules 1961
which are framed under Representation of People Act, 1951, Rule 40
contains the expression "voting compartment" which essentially means that
the proxy as well as the principal elector will both go inside the voting
compartment where the actual ballot unit or ballot box is kept. However,
in the Rules of 2019 two different expressions are used in Rule 10 and Rule
11. Rule 10 uses the expression "place appointed for the purpose of
voting" in mentioning that each Councillor shall go to the place appointed
for the purpose of voting and put mark of "X". Therefore, these rules infer
that the actual voting compartment would be "place appointed for the
purpose of voting".
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44. However, Rule 11 which contains provision for proxy contains the
provision "voting room" in mentioning that the Councillor can carry a
companion to the voting room to put the mark. The rules therefore are itself
ambiguous whereby Rule 10(4) mentions the ballot unit or ballot box to be
placed in "place appointed for purpose of voting" whereas Rule 11 uses the
expression "voting room". Voting room may be a larger area while the
actual ballot box may be kept in a smaller compartment which is expressed
in Conduct of Election Rules 1961 as "voting compartment" but in the
Rules of 2019, it is used differently as "place appointed for the purpose of
voting". Therefore, if by this ambiguity in the rules the election officer
permitted Videsh Singh to enter the voting room i.e. the place where the
polling officials etc. were stationed but inside the actual voting
compartment, only proxy i.e. Videsh Singh went, then looking to the
ambiguity in rules, such a course of action cannot be said to be an illegality
polluting the cast of vote made by Videsh Singh for Anita Kanjar. Further,
from this act of Videsh Singh, Anita Kanjar did not have any grievance and
she has never made any complaint that she was not allowed to go inside the
voting compartment.
45. The election tribunal has given much weightage to the position that
the said voter Anita Kanjar was literate and her husband and son are also
literate. However, it is for the voter to appoint his proxy and it cannot be
inferred that since the voter has not appointed a close relative as proxy then
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the person who has acted as proxy has committed illegality. In paragraph
17 of the deposition of the election petitioner, it is duly admitted that Anita
Kanjar was available in the voting room. Therefore, it is the case where
Anita Kanjar was available in the voting room. She was before the polling
officials and she had not objected to only Videsh Singh going inside the
voting compartment which is mentioned in the rules as "place appointed
for purpose of voting".
46. So far as the literacy of Anita Kanjar is concerned, it has been
explained by the returned candidate in paragraph 17 of his deposition that
Anita Kanjar can only sign but otherwise is illiterate. May be her sons are
literate, but it was for her to appoint her proxy and once she did not have
any problem with the proxy, nor any questions of trust or mistrust vis-a-vis
the proxy, then it could not be inferred by the election tribunal that Videsh
Singh could not have acted as proxy.
47. However, the election tribunal has drawn all the inferences in its
findings. A question was put to Videsh Singh DW/3 in his cross-
examination that whether he has voted on behalf of Anita Kanjar as per his
own wish which was denied by him. The election tribunal surprisingly
even permitted a question to be asked to proxy that in favour of whom he
has voted, though that question should not have been permitted to be asked
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because no voter or proxy can be asked by a third person that in whose
favour he has voted.
48. Therefore, in the opinion of this Court the judgment of the election
tribunal is based upon surmises, conjectures and inferences and are not
based on any real material. The findings and the ultimate judgment of
holding the election of returned candidate to be void cannot be sustained.
49. So far as the question of improper acceptance of nomination paper is
concerned, it was argued by the counsel for the returned candidate that
there would be no disqualification, because the conviction was more than
25 years ago under Section 323 IPC, that too, only with fine of Rs. 100/-.
On the other hand, it was argued by the other side that mere suppression of
antecedents itself is material. However, the Election Tribunal itself has
held that on this ground alone, the election cannot be set aside. This is the
correct view taken because the alleged suppression was in the nomination
paper for the post of Councillor, whereas that election was not under
challenge in the election petition. Election to the post of Councillor has
become final. There was no allegation of any suppression in nomination
and affidavit to the post of President. Therefore, nothing turns in favour of
the election petitioner on this ground.
50. Consequently, all the Revision petitions are allowed. The election
petition filed by the election petitioner stands dismissed. Any process for
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fresh election to the vacancy created by the impugned order shall become
infructuous. The returned candidate, namely Shankar Prasad Gupta shall be
allowed to assume the charge of President, Municipal Council, Majhauli,
District Sidhi forthwith.
51. A copy of this order be sent to the District Judge (Inspection),
concerned having charge of Sidhi.
(VIVEK JAIN)
JUDGE
Psm/Mishra
