1. This is an appeal against the order of Jagat Naryan J., of the High Court of Rajasthan dismissing the appellant's election petition against respondent 1 (the returned candidate ). The petition was for recount of the ballot-papers and for a declaration of the election of respondent 1 to be void if on such recount it were to be found that respondent 1 had not secured a majority of valid votes. The petition was first heard in August 1967 and was dismissed. The appellant thereupon appealed to this Court and this Court by its judgment dated May 3, 1968 set aside the said order of dismissal ordered recount and remanded the case to the High Court. The High Court accordingly conducted the recount scrutinising the ballot-papers for ascertaining whether any of the 1300 and odd disputed ballot-papers had been improperly received in favour of respondent 1 and once again dismissed the petition holding that even after the recount the appellant had failed to establish that the said disputed ballot-papers were improperly counted in favour of respondent 1. The High Court farther heldthat in order to make out a case that the said ballot-papers hadbeen improperly received and such reception had materially affectedthe result of the election the said ballot-papers were tampered withafter the result of the election had been announced and during thesix days that they remained in the charge of respondent 2, the Returning. Officer, and that such tampering could only have been committed at the instance of the appellant and with the connivance of respondent 2. This appeal disputes the aforesaid conclusions of the High Court.
2. The High Court's judgment was challenged before us on two grounds: (1) that the High Court was not justified in going into the question of tampering, firstly, as it was not canvassed at the first hearing, no particulars thereof had been given in the replication of respondent 1 and therefore no finding thereon was given and, secondly, because the question was beyond the scope of the said order of remand which was an order for recount simpliciter, and (2) on merits, it was urged that the finding was hot justified as it was based on no evidence and rested only on conjectures and speculations.
3. Before we proceed to consider these contentions we may first set out certain facts and also what took place during the hearing of the petition both before and after the remand. The appellant at the time of the election and the counting of votes was the Minister of Agriculture in Rajasthan Government. The contest was a straight one between him and respondent 1. The polling took place on February 15, 1967 and the counting was made on February 22, 1967. According to the result announced respondent 1 and the appellant secured 23169 and 22458 votes respectively, the difference being only 711. The counting took place in the Municipal Hall at Merta. There were in all 83 polling stations in Merta constituency. Ballot-papers Pertaining to one polling station were counted at one table. There were seven such tables. They were first sorted out in three steel trays, in one of them were kept valid ballot-papers in favour of the appellant, in the second the valid ballot-papers of respondent 1 and in the third the doubtful ballot-papers for scrutiny. The ballot-papers in each tray were then made into bundles of 50 each and the doubtful ballot-papers were made into a separate bundle. The bundles of each kind then were lied together into one bigger bundle. The three bigger bundles, i. e. one of valid votes for the appellant, the second of valid votes for respondent 1 and the third of doubtful votes, were then placed before respondent 2 for final scrutiny and counting. This counting was done by a supervisor flanked by two assistants who sat opposite to respondent 2. As the counting of one polling station was completed respondent 2 used to announce the figures of valid votes polled by each of the two candidates and also the figure of rejected votes. Before counting was resumed in the morning of February 22, 1967 the appellant's election agent, one Ajmera filed an application for a recount of ballot papers so far counted complaining that the method of counting and checking adopted by the supervisors was defective and .therefore mistakes were apprehended. On this application respondent 2 passed an order that counting had already started and that if Ajmera so. desired he could apply for recount after the counting was over. Accordingly Ajmera submitted another application requesting a recount in all of . 24 polling stations. Respondent 2 rejected this application stating that the application was unreasonable. Respondent 1 also had on that day filed an application for recount of ballot-papers of 8 polling stations therein specified. That too was rejected on the ground that the allegations made therein were wrong and that the counting had been properly done.
4. In the election petition filed by the appellant the allegations were that some of the bundles of doubtful ballot-papers were included in the bundles of valid votes of respondent 1. that in the case of Roisi polling station one bundle of 50 valid ballot-papers in his favour was wrongly counted in favour of respondent 1, that in six other polling stations 36 valid ballot-papers of the appellant were improperly rejected and that in 22 polling stations one or two bundles of 50 doubtful ballot-papers were included in the bundles of valid votes of respondent 1 and counted in his favour. The appellant alleged that owing to these mistakes the result of the election was materially affected and prayed for a general recount or at any rate the recount of ballot-papers of polling stations referred to in the schedules to the petition. These allegations were denied by respondent 1 in his reply. He also denied that the appellant was entitled to a recount either wholly or partially. In additional ground No 4 respondent 1 alleged that he had strong reasons to apprehend that the appellant had abused his position as a minister, had caused the ballot-papers tampered with while they had remained in the custody of respondent 2 for six days after the declaration of the result and then filed the election petition taking advantage of the tampering committed by him. Respondent 2 in his reply denied any mistake or mixing up of any of any doubtful ballot-papers with the valid ballot-papers of respondent 1 and in a further reply filed on August 7, 1967 the denied the allegations of tampering alleged by respondent 1. Respondent 1 also filed a recriminatory petition to which the appellant filed his reply. On these pleadings the Trial Judge framed one issue, viz., 'Is the petitioner entitled to a recoupt?' As already stated the Trial Judge dismissed the petition holding that no improper reception of doubtful ballot-papers was established. On appeal however that order was set aside and the case was remitted to the High Court for a recount.
5. After the remand the parties once again appeared before the same Trial Judge. He sent for the ballot-papers from the District Election Officer, Nagaur. The ballot-boxes were opened on August 23, 1968 in the presence of the parties and recounting was conducted by five officers of the High Court under the supervision of the Registrar and in the presence of the learned Judge. The procedure followed by the learned Judge was that after the ballot-papers of a polling station were recounted the objections of the parties with regard to them were heard. Respondent 1 at that stage contended that several of the ballot-papers had been tampered with after the declaration of the result. The Trial Judge postponed his decision with regard to those ballot-papers and first decided the other objections regarding the validity of the ballot-papers. Thereafter he examined the ballot-papers in respect of which tampering was alleged and heard the parties. He found 28 bundles, each containing 50 ballot papers, counted as valid votes for respondent 1, almost all of which bore double seal marks in the compartments therein for respondent 1 and the appellant. As a result of his examination and after hearing the parties, he came to the conclusion that in about 1300 ballot-papers out of those disputed by the appellant seal marks in the appellant's compartment in those ballot papers were affixed after the declaration of the result. The said ballot-papers were, therefore, not invalid when counted by respondent 2 and therefore he considered them as valid votes for respondent 1'. According to the learned Judge, there was both intrinsic as well as extrinsic evidence to show that those ballot-papers had been tampered with. Under rule 92(2) of the Conduct of Election Rules it is the District Election Officer who has to keep in his custody ballot-papers after counting is over. Before that they would be in the custody of the Returning Officers under Rule 47. Respondent 2, therefore, ought to have sent them to the District Election Officer after the counting was over. They were not, however, sent until February 28, 1967. In the meantime respondent 1 had complained to the Chief Election Officer that he apprehended that the ballot-papers had been tampered with. The Chief Election Officer thereupon asked the District Election Officer to get them from respondent 2 immediately. The District Election Officer, therefore sent one, S.K. Tak, a Deputy District Development Officer, Nagaur to take charge of and bring them to Nagaur.
6. It is thus clear that the ballot-papers remained at Merta from 22nd to 28th February. The explanation of respondent 2 was that on the 23rd February he was busy with the counting of ballot-papers of Degana constituency, that he remained there on the 25th and 26th of February, the first being a local holiday and the second being a Sunday. According to him, the ballot-papers were stored in a room adjoining the said Municipal hall and he had placed that room in charge of one Dau Lal, the Tehsildar of Merta, to whom he had handed over the key of that room when he went to Nagaur on the 24th, but 25th and 26th of February being holidays Dau Lal had taken his permission to remain absent. The learned Judge thought that Dau Lal being the subordinate of respondent 2 even if he was placed in charge of the said room the ballot-papers therein were to be presumed to be in the charge of respondent 2. When the said ballot-papers were sent to the Court for recounting they were in envelopes on which the seals of respondent 2 were intact. The Trial Judge was of the view that as tampering was committed during the six days when theballot-papers remained at Merta whosoever did that mischief hadto break open the said envelopes and place them in other 28envelopes and seal them again with the seals of respondent 2. Theconclusion reached by the learned Judge was that respondent 2 andthe other returning Officers in that constituency had each beenfurnished with 12 spare envelopes, that therefore it was notimpossible for respondent 2 to obtain 16 more spare envelopesover and above the twelve spare envelopes he had if he were tobreak the said seals. He also found that the seal of respondent 2,the rubber seal and the ink-pads with which voters had to maketheir marks on the ballot-papers were also available to maketampering possible. In these circumstances he held that 'theballot-papers could not have been tampered with without theinstigation of the petitioner (the appellant) who was a cabinetminister and without the active connivance of Shri S.D. Arya,Returning Officer, Merta Assembly constituency (Respondent 2).The procuring of envelopes could not have been difficult for thesewho had the daring to tamper with the ballot-papers'.
7. Before the Trial Judge the contention urged on behalf of the appellant was that there could not have been any tampering of the ballot-papers nor could he be responsible for such alleged tampering, as. from the very outset he had complained of improper reception of votes in favour of respondent 1 and had appealed twice for a recount of ballot-papers of polling stations named by him, which ballot-papers of in the said 28 bundles were found on recount to have'double marks. The argument was that such double marks must have been there from the very inception which negatived the allegation of their having been tampered with subsequently. The answer given on behalf of respondent 1 was that the first application Ex. 2 filed in the morning of February 22, 1967 was lodged as a counter-blast against the application Ex. 9 of respondent 1 and that the second application Ex, 3 was intended to pressurise respondent 2 to recount the ballot-papers of the 24 polling stations named therein and to reject on such recount more votes of respondent 1 and thus to ensure the appellant's success. The Trial Judge found that the double marks on the ballot papers in the said 28 bundles were confined to the ballot-papers of those very 24 polling stations named in the appellant's said application for recount. He therefore rejected the contention that the fact of the appellant having named those 24 polling stations negatived the case of tampering. He also rejected the Contention that he was barred by the order of remand from going into the question of tampering and held that for the purpose of deciding whether any ballot-paper was validly received in favour of respondent 1 he had to consider whether a ballot-paper containing double marks was tampered with subsequently or not, for, if that was done, the ballot-paper in question would be a valid one at the time of counting. Having held that there was tampering and consequently the said ballot-papers were properly counted as valid votes For respondent 1 he once again dismissed the election petition. The present appeal challenges the correctness of these conclusions and the dismissal of the said petition.
8. As already stated, the appellant's case in his petition wasthat mistakes had been committed in counting both on the 21stand the 22nd of February, 1967 and as a result about 1500 votes (in evidence reduced to about 1300) were wrongly counted in favour of respondent and that therefore a recount was necessary. These contentions were denied and a further allegation was made by respondent 1 as to tampering of the ballot-papers which was resorted to show that the said ballot-papers were invalid. On July 7, 1967 the Trial Judge, after hearing counsel, passed an order observing that the petition was based solely on the ground of improper acceptance and rejection of ballot-papers, that respondent 1 also had alleged improper acceptance and rejection of ballot-papers and had claimed a recount if that were to be allowed to the appellant and framed 'at this stage' the aforesaid issue. The appellant was examined on August, 2, 1967. It appears that his evidence was confined to allegation of improper acceptance of the said 1300 doubtful ballot-papers said to have been rest reserved for scrutiny of respondent 2. Since no questions were asked to him in examination-in-chief with regard to tampering there was no cross-examination also on that allegation. On August 3, 1967 Mohan Singh P.W. 4, the Block Development Officer, Degana, who had assisted respondent 2 in counting the ballot-papers was examined on behalf of the appellant. It would appear that respondent 2 tried to question him on the alleged tampering, but the Trial Judge disallowed those questions on an objection raised by counsel for respondent 1. Respondent 1 was examined on the 4th and the 5th of August. On the 5th he deposed that respondent 2 was 'the special man' of the appellant, that he was interested in the appellant and to his having moved the authorities to take charge of the ballot-papers from Merta as he apprehended that they were tampered with. At this stage the appellant's counsel objected to questions as to tampering being put to respondent 1 on the ground that when Mohan Singh was being cross-examined on behalf of respondent 2 on that very case counsel for respondent 1 had objected stating that 'he had not token a plea of tampering in his reply to the petition but has taken it only in recriminatory petition', and on that statement respondent 2 was prevented from cross-examining Mohan Singh. The appellant's counsel then stated that he would like to produce additional evidence to show that no tampering with the ballot-papers had taken place and the learned Judge al?o observed that tampering was alleged in the reply to the petition, that the contention of the appellant that tampering was not covered by the issue was not correct as the issue raised by him was comprehensive, that it was open to respondent 1 to show why the appellant was not entitled to a recount and that he could establish that on grounds other than those in the petition. The learned Judge also observed that as the burden on the issue was on the appellant he could not be allowed to produce evidence in rebuttal. Thereupon at the request of the appellant's counsel the case was adjourned to the next day to enable the appellant to lead further evidence to show that there was no tampering.
9. On August 5, '67 three applications were made before the learned Judge, two by the appellant for raising an additional issue as to tampering and for summoning the said Dau Lal, the said Tak and the Collector of Nagaur as his additional witnesses, and the third by respondents for recalling witnesses Mohan Singh, Ajodhya Prasad and Bhika Ram for further cross-examination. On these applications, the learned Judge ordered that the issue framed by him was sufficiently comprehensive to include the alleged tampering. rejected the appellant's application to summon additional witnesses but allowed him to further examine himself and also rejected the application of respondent 2 to recall the said three witnesses on the ground that if he wanted to produce evidence in addition to his own evidence he should have filed a list of witnesses in time.
10. On being further examined as permitted by the said order, the appellant said that so far as he knew there was no tampering, that after the announcement of the result he had left Merta that very night and had not been there till he gave evidence. The cross-examination of respondent 1 which was deferred, was then resumed when respondent 1 conceded that he had no knowledge -by. which he presumably meant personal knowledge--that the ballot-papers had been tampered with.
11.' On August 8, 1967 respondent 2 filed an application putting on record the circumstances in which he was prevented from cross-examining the said Mohan Singh and the fact that inspite of the statement made by counsel for respondent 1 that the plea of tampering was not taken in his replication but in the recrimination, respondent 1 and his witnesses were allowed to depose to that plea. He applied that since his application to recall witnesses had been disallowed he should be permitted to file a rejoinder in answer to the allegation as to tampering. That was permitted. Respondent 2 gave evidence on the 8th and 9th of August and was cross-examined by counsel for the appellant and respondent 1. He gave details about his work as the returning officer, the applications for recount by the appellant and respondent 1. their disposal by him, the reasons why the ballot-papers remained for six days at Merta, his being away from the 24th to 26th of February at Nagaur, his receiving a letter dated February 27, 1967 from the Collector, his directing Dau Lal to take the ballot-papers to Nagaur, the said Tak in the meantime coming to Merta and taking them away, he having permitted Dau lal to be away from Merta on the 25th and 26th of February and lastly his not knowing to whom Dau Lal when he left Merta had handed over the keys of the room where the ballot-papers were kept. This was all the evidence before the learned Judge on the question of tampering. As already stated, the learned Judge examined the disputed ballot-papers, heard arguments of counsel and held from the markings and other features on the ballot-papers that there was tampering of them during the six days that they remained at Merta after the election result was declared.
12. As against this conclusion counsel contended that the issue as to tampering not having been raised at the first hearing and the only issue then having been raised being on the appellant'sclaim for recount, the learned Judge was not entitled to enter uponthe question as to tampering. Counsel further contended that the order of remand of this Court also did not envisage going into that question and that in any event the finding as to tampering was unjustified as there was no evidence on which it could be founded and rested only on conjectures and speculations.
13. We do not agree that the question of tampering did not arise before the Trial Judge or that it was at any stage abandonedor that the said order of remand precluded him from going into it. It is true that on July 7, 1967 when the Trial Judge framed theissue it related to the appellant's claim for recount. That is clear from the way in which he summarised in that order the allegations made in the election petition. He could certainly have considered the reply of respondent 1 which expressly alleged tampering and to avoid any misunderstanding by the parties could have raised aseparate issue on tampering or informed them at that stage thatthe issue raised by him was wide enough to include tampering. What he seems to have thought was that as the appellant had claimed recount on the allegations in the petition the burden was on him to prove those allegations and that was why he summarised them in that order and said that the issue he would frame 'at this stage' would be only whether the appellant was entitled to recount. Obviously, the question of tampering would not arise at that stage because if the prayer for recount was not allowed the question of tampering would not arise at all. But that does not mean, as counsel argued, that the question of tampering was not before the Court or that it was a half-hearted plea not intended to be pressed. When 1he learned Judge refused recount and the case came before this Court in appeal, the question agitated in that appeal st 11 was whether the appellant on the allegations in his petition was entitled to recount. The question of tampering did not come to the forefront even at that stage because the question in the appeal still was whether the appellant could on his allegations claim recount. It seems it was for this reason that the order of this Court directing recount did not specifically mention tampering. Counsel who then appeared before this Court made conflicting statements before us, one side stating that tampering was mentioned before this Court and the Court having stated that that question was open and could be gone into at the time of the recount, and the other side insisting that it was not even broached. Whether tampering was or was not stated, there is nothing in the order of this Court to indicate that that question was given up or was otherwise concluded and the High Court therefore was in no way debarred from going into it. The question of tampering became important as soon as recount was ordered. While carrying out recount a large number of ballot-papers were found to have double marks, one in the compartment for the appellant and the other in that of respondent I. The question whether such ballot-papers were valid and were justifiably counted in favour of respondent 1 necessarily involved the question .whether at the time of counting they were valid and were subsequently restamped to show that they were invalid and were improperly received. It is impossible therefore to say that the questionof tampering was not before the Court or that the Court was precluded from going into it.
14. The controversy as to whether the question of tampering was pressed or not arises because instead of dealing with the case as a whole the Trial Judge concentrated on the question whether the appellant 'was on allegations made by him, entitled to recount and did not therefore raise an issue as to the alleged tampering as he thought perhaps that if the claim for recount was not made out, the question of tampering would not arise. But he could not at that stage be certain whether recount would be allowed or not. The error that he fell into was that he did not then consider that if recount was allowed the question of tampering would loom large and would have to be gone into. The second error that he committed was to cast on the appellant the burden to prove the negative that there was no tampering. The allegation of tampering, was made by respondent 1, his case being that even if recount was allowed, the ballot-papers said to have been improperly received in his favour were originally valid and to render them invalid were tampered with. There can hardly be any doubt -that the burden to prove that allegation was on respondent 1 and should have been thrown upon him.
15. On August 5, 1967 while the appellant's evidence was being recorded the appellant had applied that a separate issue of tampering should be raised and he should be permitted to call certain additional witnesses. Likewise, respondent 2 also had applied for recalling three witnesses for further cross-examination. As to the first application it may be that the learned Judge thought that the issue framed by him was comprehensive enough to take in the question of tampering. But there was a possibility of the appellant and respondent 1 having misunderstood the position, as, on July 7, 1967 the learned Judge had said that at that stage the only issue he would frame would be whether the appellant was on his allegations entitled to recount. Both the appellant and respondent 2 might well have thought that as the issue of tampering would subsequently be gone into it would be then that they would be called upon to adduce evidence to rebut it.
16. But the learned Judge took the view that the entire burden, including that of proving even the negative, was on the appellant and ruled that he would not be entitled to lead rebuttal evidence. Even on that view the learned Judge was in error in refusing leave to the appellant and respondent 2 to examine additional witnesses and to recall certain witnesses for further cross-examination and granting partial leave to the appellant to further examine himself. It appears that the question of tampering was for the first time touched upon by respondent 1 when he was being examined and therefore neither the appellant nor respondent 2 had the opportunity so far of meeting that allegation. They should either have been allowed to lead evidence in rebuttal or in any event to lead additional evidence as applied by them. Since the learned Judge allowed further examination of the appellant, we do not see how he could disallow him tocall additional witnesses nor can we in fairness to respondent 2 sustain the order disallowing his application for recalling witnesses.
Obviously, the allegation of tampering was a very grave allegation both against the appellant and respondent 2. In our view it wasneither fair nor in the interest of justice first, to throw the burden on the appellant and then to deprive him and respondent 2 the opportunity to adduce such evidence as they thought fit to meetthat allegation. That 'being the position, we think that the parties should have even at this stage the opportunity to adduce such evidence as they think fit on the question of tampering. We may make it clear that the burden of proving this allegation ison respondent 1.
17. This course, no doubt, means delay in disposing ofthe appeal. But we think that in fairness to all parties theyshould have a full opportunity of adducing such evidence as theythink fit. The question is whether we should examine, the witne-witnessess ourselves or should direct the High Court to do so. On aa full consideration we think that it would be more convenient tothe parties concerned that we adjourn this appeal and direct theHigh Court to record the evidence of such of the witnesses whomthe parties want to examine on the question of tampering. In theabsence of such evidence we have purposely not gone into themerits of the finding as to tampering given by the trial Judgepostponing it till we receive from the High Court the record ofthe evidence which the parties may adduce there. In order thatthere may be as little delay as possible we direct the partiesfrom today and obtain the earliest possible date to lead evidence.The High Court will after recording the evidence remit it to thisCourt as expeditiously as possible. The appeal will be listedwithin one week after the record is received and a notice to thateffect is given to the parties.