Jai Singh v. Ramsingh — 1993 DIGILAW 272 (RAJ)

Honble MATHUR, J.—A preliminary objection has been raised by Mr. Mehta during the course of cross-examination of D.W. 1 Ram Singh, the returned candidate from the Churu Parliamentary Constituency in this election petition filed by Shri Jai Singh, defeated candidate that the petitioner may not be permitted to ask the questions in the cross-examination relating to the Additional Pleas and Recrimination Petition filed by the respondent Shri Ram Singh. (2) Mr. Singhvi, learned counsel for the petitioner has submitted that he is entitled to ask these questions as the Additional please and the recrimination petition are part of this election petition and according to Sections 145 and 138 of the Evidence Act, 1872, he has right to cross-examine the witness and impeach his credibility. (3) Mr. Mehta, learned counsel for the respondent submitted that recrimination petition is not a part of the election petition nor the additional pleas. It is submitted that the petitioner has based his election petition on the grounds mentioned in para 13 of the election petition from (A) to (F) and paras 14, 15 and 18 and he has invited my attention to para 23 of the relief clause wherein he has only sought a relief of inspection and recount of the votes as indicated in the foregoing paragraphs. (4) Mr. Singhvi, learned counsel for the petitioner has also invited my attention to para 11 of the election petition to show that in para 11 the petitioner has also asked for recount of the votes as his election has been materially affected by improper reception, refusal, rejection of valid votes or the reception of votes which were void. (5) Mr. Mehta, learned counsel for the respondent submitted that this para is nothing but the reproduction of the contents of Section 100 (1) (d) (iii) of the Representation of the People Act, 1951 (referred to hereinafter as the Act of 1951). (6) In order to appreciate these contentions raised by both the learned counsel it has to be examined as to what is the scope of recrimination petition and the additional pleas. We have to first make a reference to the necessary provisions of the Representation of the People Act, 1951. Section 97 deals with recrimination petition. Section 97 reads as under: — "97. We have to first make a reference to the necessary provisions of the Representation of the People Act, 1951. Section 97 deals with recrimination petition. Section 97 reads as under: — "97. Recrimination when seat claimed— (1) when in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election: Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, give notice to the High Court of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively. (2) Every notice referred to in sub-section (1) shall be accompanied by the statement and particulars required By section 83 in the case of an election petition and shall be signed and verified in like manner." (7) Section 97 of the Act of 1951 says that if an election petition is filed praying that the election of the returned candidate may be declared void and a declaration that any candidate other than the returned candidate has been duly elected is claimed then the returned candidate has a right to file a recrimination petition that in the event of the defeated candidate is declared elected then he will also have a right to lead evidence to show that the election of such candidate so declared is illegal and for that he will have to file a recrimination petition within fourteen days from the date of commencement of the trial after giving notice to the High Court of his intention so to do and he has also to give the security and the further security referred to in Sections 117 and 118 respectively. Such notice shall be accompanied by the statement and particulars required by Section 83 as required in the case of the election petition and shall be signed and verified in the like manner. Such notice shall be accompanied by the statement and particulars required by Section 83 as required in the case of the election petition and shall be signed and verified in the like manner. The sum total of this section is that a returned candidate if he is served with a notice that one of the defeated candidates wants to file an election petition and seeks a declaration in his favour then in that event he is also entitled to impeach the candidature of that candidate in the manner in which an election petition is filed. Therefore, this section caters the contingency that in case the defeated candidate is declared elected then the right of that candidate who is unseated by the court cannot be deprived to challenge the candidature of the candidate so declared by the court for impeaching the same on any of the grounds which he could have challenged. Thus, the examination of the recrimination petition always comes subsequent to the happening of the first event that the court declares the defeated candidate as an validly elected candidate from that constituency. The recrimination petition is a form of election petition against the other candidate but this comes into picture only if the first contingency happens that the election of the duly elected candidate is set aside and the defeated candidate is declared elected by the court. (8) Section 100 lays down the grounds for declaring the election to be void. We need not to go into the scope of this section. So far as the present controversy is concerned, we have to confine ourselves to clause (d) (iii) of Sub-Section (1) of Section 100 of the Act of 1951 because the controversy in the present election petition is that some votes of the defeated candidate have been illegally rejected and some of the invalid votes of the returned candidate have been illegally accepted and vice-versa. Section 100 (1) (d) (iii) reads as under:– "(1) Subject to the provisions of sub-section (2) if the High Court is of opinion — (d) that the result of the election in so far as it concerns a returned candidate, has been materially affected — (iii) by the improper reception, refusal or rejection of any vote or reception of any vote which is void, or." (9) Section 101 of the Act of 1951 lays the grounds for which a candidate other than the returned candidate may be declared to have been elected. Section 101 reads as under:— "101. Grounds for which a candidate other than the returned candidate may be declared to have been elected. If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion — (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall after declaring the election of the returned candidate to be void declares the petitioner or such other candidate as the case may be, to have been duly elected." (10) Section 101 deals with the declaration that if the High Court is satisfied that the petitioner or such other candidate had received a majority of the valid votes or the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes then the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate as the case may be, to have been duly elected. (11) The respondent in his reply has taken some additional pleas also which are contained in the written statement under the heading of Additional Pleas. (11) The respondent in his reply has taken some additional pleas also which are contained in the written statement under the heading of Additional Pleas. In that one of the pleas taken by the respondent returned candidate is that "the Returning Officer has accepted similar ballot papers cast in favour of the petitioner and other candidates and has thereby reduced the votes of the answering respondent by about 1700, and eventually his lead over the petitioner has been reduced by about 1700." In his recrimination petition in para 5 (a), (b), (c), (d), (e) and (f) the respondent has alleged in these paras that some of his votes were wrongly rejected by the counting staff. In sub-para (b) says about 200 votes, sub-para(c) says about 100 votes, sub-para (d) says about 1500 votes and sub-para (e) says about 1300 votes. In para 6 he has said that had the counting been conducted in accordance with law then he would have been elected by a margin of atleast 3000 votes. (12) The issue which pertained to this question is issue No.5, which reads as under: — "5. Is the petitioner entitled to get the votes recounted as per grounds specified in the Election petition." (13) Therefore, the real issue which has to be gone in the trial is whether the petitioner is entitled to re-count on the basis of the grounds mentioned by him in his election petition. (14) Now, in this back-ground we have to examine the question as to whether Mr. Singhvi, learned counsel for the petitioner is entitled to ask the questions in the cross-examination of the respondent D.W.I relating to the facts contained in the additional pleas of the written statement of the respondent as well as the grounds raised by him in his recrimination petition in para 5 (a) to 5(f). (15) It is true that Section 138 of the Evidence Act, 1872 certainly empowers adverse party to cross-examine the witness after the examination-in-chief is over. Section 145 of the Evidence Act permits the other side to cross-examine the witness as to previous statements made by him in writing or reduced into writing. Section 145 of the Evidence Act says that a witness may be cross- examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him or being proved. Section 145 of the Evidence Act says that a witness may be cross- examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him or being proved. It is true that Mr. Singhvi has a right to cross-examine the witness without showing him any previous statement or being proved. But the question before me is that whether the questions which are being asked by Mr. Singhvi relating to the issue No.5 is to be permitted or not. Before answering this question, it would be useful to refer to some of the decisions which have been referred to by Mr. Mehta, learned counsel for the respondent regarding the scope of the additional pleas and the recrimination petition. (16) Mr. Mehta, learned counsel for the respondent has invited my attention to the decision given in the case of Jabar Singh vs. Genda Lal (1). This judgment is of 5 Bench Judges and it has been observed as under:- "Scope of the enquiry in a case falling under S. 100 (1) (d) (iii) is to determine whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in S. 100 (1) (d) (iii), the result of the returned candidates election has been materially affected, and that, incidentally, helps to determine the scope of the enquiry. Therefore, it seems to us that in the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of S. 100 (1) (d) itself. The enquiry is limited not because the returned candidate has not recriminated under S. 97 (1); in fact, S. 97(1) has no application to the case falling under S. 100 (1) (d) (iii); the scope of the enquiry is limited for the simple reason that what the clause requires to be considered, is whether the election of the returned candidate has been materially affected and nothing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the election petition....... There are, however, cases in which the election petition makes a double claim; it claims that the election of the returned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that S. 100 as well as S. 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that S. 97 comes into play. Section 97 (1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validly elected and these would be pleas of attack and it would be open to the returned candidate to take these pleas because when he recriminates, he really becomes a counter-petitioner challenging the validity of the election of the alternative candidate. The result of S. 97 (1) therefore, is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. That being the nature of the proceedings contemplated by S. 97 (1), it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by S. 97 (1) proviso and Sec. 97(2). If the returned candidate does not recriminate as required by S. 97, then he cannot make any attack against the alternative claim made by the petition. If the returned candidate does not recriminate as required by S. 97, then he cannot make any attack against the alternative claim made by the petition. In such a case an enquiry would be held under S. 100 so far as the validity of the returned candidates election is concerned, and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the alternative claim, but in doing so, the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate." (17) That shows that the trial of the recrimination petition only begins when the declaration is given by the High Court in favour of the petitioner or any other candidate being successful, then the returned candidate has a right to impeach the election of the so-declared returned candidate. This judgment was subsequently followed in the case of Ram Autar Singh Bhadauria vs. Ram Gopal Singh and Others (2) and it was observed as under :- "The scope of the inquiry in a case under Section 100 (1) (d) (iii) is to determine whether any votes had been improperly cast in favour of the returned candidate or any votes had been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant for deciding whether the election of the returned candidate had been materially affected or not. At such an enquiry the burden is on the petitioner to prove his allegations. In fact Section 97 (1) of the Act has no application to a case falling under Section 100(1) (d) (iii). The scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. In fact Section 97 (1) of the Act has no application to a case falling under Section 100(1) (d) (iii). The scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. It is true that in a composite election petition wherein the petitioner claims not only that the election of the returned candidate is void but also that the petitioner or some other person be declared to have been duly elected, section 97 would also come into play and allow the returned candidate to recriminate and raise counter pleas in support of his case, "but the pleas of the returned candidate under Section 97 have to be tried after a declaration has been made under Section 100 of the Act. The first part of the enquiry in regard to the validity of the election of the returned candidate has therefore to be tried within the narrow limits prescribed by Section 100 (1) (d) (iii) and the latter part of the enquiry governed by Section 101 (a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas taken by him in his recriminatory petition; but even in such a case the enquiry necessary while dealing with the dispute under S. 101 (a) will not be wider if the returned candidate has failed to recriminate and in a case of this type, the duty of the Election-Tribunal will not be to count and scrutinise all the votes cast at the election.......The Tribunal is in error in ordering general inspection and recount of the total votes polled at the election, merely because in the additional pleas the returned candidate also had by way of recrimination, complained of wrong reception and rejection of votes and wrong counting of votes. These pleas at this stage could not be investigated even in the recriminatory petition filed by the returned candidate. These pleas at this stage could not be investigated even in the recriminatory petition filed by the returned candidate. They were beyond the scope of the enquiry into the petitioners case which fell under Section 100 (1) (d) (iii) of the Act." (18) This was a judgment of 3 Bench Judges and it was clearly laid down that the pleas of the returned candidate under Section 97 have to be tried after declaration has been made under Section 100 of the Act of 1951. Therefore, in the present case what has to be decided is that in what way the election of the returned candidate has been materially affected on account of the grounds mentioned in Section 100 (1) (d) (iii) of the Act of 1951. Therefore, the onus is on the petitioner to show that in what way the election of the petitioner has been materially affected on account of improper rejection of the votes of the petitioner and improper reception of the votes of the returned candidate, which were void. Therefore, in the present case, the scope is limited to this extent only. In the aforesaid case, a mistake was committed by the Tribunal in ordering general inspection and recount of the total votes at the election on the basis of the additional pleas of the returned candidate wherein he had also complained of wrong reception and rejection of votes and wrong counting of votes by way of recrimination petition. Therefore, the Honble Supreme Court set aside the order of the Tribunal. (19) Mr. Mehta, learned counsel for the respondent has also invited my attention to the decision given in the case of Mithilesh Kumar Pandey vs. Baidyanath Yadav and Others (3) wherein in the copy sent to the elected candidate contained certain mistakes relating to omission of some names and giving wrong names etc. Such mistakes were held to be fatal. But this case has no direct relevance to the controversy with which we are concerned here. (20) Mr. Singhvi, learned counsel for the petitioner has invited my attention to the decision rendered in the case of Swami Rameshwaranand vs. Madho Ram and Another (4). This case is of 2 Bench Judges. It was observed as under in the last para: "The irregularity alleged is of such a grave nature that in the interest of justice we feel that it is a matter which calls for scrutiny. This case is of 2 Bench Judges. It was observed as under in the last para: "The irregularity alleged is of such a grave nature that in the interest of justice we feel that it is a matter which calls for scrutiny. We are also not unmindful of the irregularities alleged in the recrimination petition of the respondent." (21) This was an election petition filed by an unsuccessful candidate at a Parliamentary election of the Karnal Parliamentary Constituency which comprised of nine segments of Assembly constituencies of Haryana and in one of the segments some complaint of bungling was made and in that context the Honble Supreme Court after examining that bungling was so much that out of 13, 876 rejected votes 1900 had been cast in petitioners favour were wrongly rejected, alongwith so many other allegations, looking to the mass irregularities of grave nature committed in the election and in the interest of justice the matter called for a scrutiny and in that context it was observed that the allegations were also made in the recrimination petition by the respondent. Therefore, the passing observations relating to the facts mentioned in the recrimination petition were also referred to. But this decision is not on the question that what is the scope of recrimination petition. Therefore, this authority does not answer the question. (22) Similarly, the case of Kabul Singh vs. Kundan Singh & Ors. (5) is also a case of 2 Bench Judges. In that case, it was observed as under: "The fact that the 1st respondent did not challenge the validity of those votes was immaterial in the circumstances of the case. The election petition and the recriminatory petition were parts of one enquiry. As validity of the three votes had come up for consideration and as it was held that those votes were void it necessarily followed that the votes had to be excluded from consideration in determining the result of the election." (23) In this case one Kundan Singh, the first respondent to the appeal challenged the validity of the declaration of the Returning Officer that the appellant has been duly elected from the Hoshiarpur Local Authorities Constituency to the Punjab Legislative Council in the election held in April, 1968. The High Court came to the conclusion that some of the votes polled in that election were invalid votes and if the valid votes alone are taken into consideration, as it should have been, then the 1st respondent is entitled to be declared elected It accordingly set aside the declaration made in favour of the appellant and declared the 1st respondent as having been duly elected. One of the grounds raised was that the vote of Hari Singh should have been held to be a void vote as his name was included" in the electoral roll on April 5, 1968 i.e. just two days before the date of polling. In his turn the appellant filed a recriminatory petition contending inter alia that the vote of Tarsem Singh was void as by the time the polling took place, he had become a Government servant and the votes of two other persons namely Harjinder Singh and Balwant Singh were void as their names were included in the electoral roll after the last date for filing nominations for the election. The other grounds taken in the recriminatory petition were not relevant for the present purpose. The matter came up for trial before Mahajan, J. and he referred the following question for determination to the Full Bench:- "Whether allegation in para 4 (a) pertaining to the vote of Hari Singh is correct and the vote was void and was polled in favour of respondent No.1 in violation of the Rules and has materially affected the result of the election of respondent No.1." (24) The Full Bench by majority came to the conclusion that the vote of Hari Singh was void as his name was included in the electoral roll of the constituency after the last date for making nomination for the election in that constituency. The matter was returned back to Mahajan, J. Consequently he recounted the votes validly cast and came to the conclusion that the 1st respondent had been duly elected and he has given a declaration to that effect. Sub-section (3) of Section 23 of the Representation of the People Act, 1950 prohibited the deletion of any entry or inclusion of any name in the electoral roll of a constituency after the last date for making nominations for an election in that constituency and before the completion of that election. Sub-section (3) of Section 23 of the Representation of the People Act, 1950 prohibited the deletion of any entry or inclusion of any name in the electoral roll of a constituency after the last date for making nominations for an election in that constituency and before the completion of that election. In that context, it was found that an erroneous impression that Harjinder Singh and Balwant Singh had voted against him the appellant had contended in his recriminatory petition that their votes were invalid. But on scrutiny it was found that one of them had given his first preference to him. Therefore, in this context it was contended on behalf of the first respondent that he had not challenged the validity of those votes, the trial court could not have excluded from consideration the votes cast in his favour by one of those persons. This contention was found to be untenable. The votes of Harjinder Singh and Balwant Singh have been rejected on the ground that their names were included in the electoral roll in defiance of the mandate given under Section 23 (3) of the 1950 Act. Therefore, it was observed that what applies to Hari Singh equally applies to Harjinder Singh and Balwant Singh. Therefore, in this context the aforesaid observations were made by the Honble Supreme Court that the challenge by the respondent to the validity of those votes is immaterial in the circumstances of the case because the election petition and the recriminatory petition were parts of one enquiry. With great respect these observations have to be read in the context of the peculiar facts obtaining in that case. But it cannot be read as a general proposition that the election petition and the recriminatory petition are part of the same enquiry because of the bench decision of the Honble Supreme Court in the case of Jabar Singh (supra) and the subsequent decision of the Honble Supreme Court in the case of Ram Autar (supra). Both were larger Bench judgments. In Ram Autar (supra), which is 3 Bench Judges judgment, the Honble Supreme Court has taken the view that the additional pleas and the recriminatory petition come after the trial of the main election petition. Both were larger Bench judgments. In Ram Autar (supra), which is 3 Bench Judges judgment, the Honble Supreme Court has taken the view that the additional pleas and the recriminatory petition come after the trial of the main election petition. Therefore, to infer that they are part of the same enquiry is not a correct proposition of law as enunciated by their Lordships of the Honble Supreme Court in the bench decision given in the case of Jabar Singh and Ram Autar (supra) (25) Therefore, after analysis of the cases on the subject, the resultant position that emerges is that the additional pleas as well as the recriminatory petition come subsequently and the recriminatory petition only comes into play when the petitioner successfully impeaches the election of the returned candidate. Therefore, the petitioner has to sink or assail on the basis of the allegations made by him in the election petition for declaring the election of the returned candidate being void on the basis of the grounds mentioned in Section 100 (1) (d) (iii). Therefore, the petitioner cannot take any benefit of the additional pleas or recriminatory petition as they are alternative pleas of the returned candidate to say that the candidature of the so declared candidate by the Court is also not valid for the reasons mentioned by him. (26) Therefore, as a result of this discussion, I am of the opinion that the learned counsel for the petitioner cannot be permitted to ask the questions in the cross-examination of the returned candidate D.W.I Ram Singh relating to his additional pleas and recriminatory petition. (27) Accordingly, the questions which have been asked by the learned counsel for the petitioner relating to the additional pleas and the recriminatory petition are over-ruled. (28) This disposes of the objection of Mr. Mehta, learned counsel for the respondent.