Representation of the People Act, 1951 — Sections 116-A, 123 (8)

September 9th, 2013

Representation of the People Act, 1951 — Sections 116-A, 123 (8), 135-A & 100(1)(d)(iii) — Election petition — Absence of direct and material evidence, Examination of court witnesses by High Court, Effect of — Election Petition was filed to challenge the election of the appellant on the ground of corrupt practice of booth capturing — High Court allowed the Election Petition filed by the Respondent No. 1 whereby the election of the appellant was declared void, and first respondent was declared elected to the State Legislative Assembly — Challenged — Held, Election Petition was filed only on the ground of booth capturing — The respondent No. 1 himself accepted that he could not name any person involved in the act of booth capturing — The petitioner tried to claim impersonation and double voting as a facet of booth capturing — Ld. judge has clearly transgressed the limits of his jurisdiction, by going into the exercise of calling for the handwriting and finger print experts, and comparing the voters’ signatures and finger prints with the help of the records in Form 17A, when that was clearly held to be impermissible in the present case itself — This is apart from the fact that this has resulted into a waste of the time of the Court, which is so precious — He entered into an impermissible exercise, and deleted the votes received by the appellant which he considered to be tainted votes — The learned judge, therefore, ignored that even if the ground of improper reception of votes was to be taken, the respondent no.1 had failed to establish that the result of the election of the appellant had been materially affected by such improper reception of votes — The decision of the learned judge was therefore clearly flawed and untenable — Learned judge went into the counterfoils of the voters inspite of the fact that this court had already ruled in the judgment in C.A. 1539 of 2010, that in the facts of the present case, no case was made out for calling of the counterfoils — In the circumstances, appeal allowed and set aside the impugned judgment and order rendered by the learned judge of High Court — Election Petition filed by the respondent no. 1 stand dismissed.

Markio Tado Vs. Takam Sorang and Ors. 2012(3) SCC 236 & Azar Hussain v. Rajiv Gandhi AIR 1986 SC 1253, Referred.

(Para 23 to 26)

Markio Tado v. Takam Sorang[Bench Strength 2], Civil Appeal No. 8260/2012(10/05/2013), 2013(5) SLT 22: 2013(7) JT 383: 2013(7) SCALE 205 [G.S. Singhvi, J.: H.L. Gokhale, J.]

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