DESAI, J. - (1.) PURITY of election and secrecy of ballot, two central pillars supporting the edifice of Parliamentary democracy envisioned in the constitution stand in confrontation with each other or are complimentary to each other, present the core problem in this appeal.
(2.) FIRST to the factual metrix. Punjab Legislative Assembly formed a constituency for electing members to the Council of States. On 3/03/1976, a notification was issued calling upon the members of Punjab Legislative Assembly to elect three members to the Council of States. The election programme was : 10/03/1976, was prescribed as the last date for filing nominations; the scrutiny of the nominations was to be made on 11/03/1976; 13/03/1976, was the last date by which it was permissible to withdraw from the election; in the event of contest, poll was to take place on 27/03/1976; counting was to be done on the same day. Respondent 4 Smt. Amarjit Kaur and respondent 5 Satpal Mittal were nominated as candidates of the political party described as Indian National Congress. Appellant Sardar Raghbir Singh Gill claimed to be an independent candidate. Respondent 1 Gurcharan Singh Tohra was a nominee of the Akali Party. As there were three seats and four candidates, poll was conducted on 27/03/1976. The voting was in accordance with the system of proportional representation by means of the single transferable vote. Counting the single transferable vote. Counting took place on the same day after the poll closed at the prescribed hour. Two candidates of the Indian National Congress, Smt. Amarjit Kaur and Sat Pal Mittal secured 29 and 27 first preference votes respectively. Appellant secured 23 first preference votes. Respondent 1, the Akali nominee also secured 23 first preference votes. The quota was 25.51 votes. Accordingly, Smt. Amarjit Kaur and Sat Pal Mittal who had secured first preference votes in excess of the ascertained quota were declared elected. The surplus first preference votes according to the second preference votes to the tune of 4.81 votes were added to the first preference votes polled by the appellant and he was declared elected to the third seat. Respondents 2 and 3, two sitting members of Punjab Legislative Assembly and, therefore, eligible electors, filed an election petition on 10/05/1976, challenging the election of the present appellant, the independent candidate who was declared elected to the third seat, inter alia, contending that the result of the election of the present appellant has been materially affected (i) by non-compliance with the provisions of the Representation of the People Act, 1951, and the Rules made thereunder , (ii) by improper reception of votes in favour of respondent 1; and (iii) by commission of corrupt practice in the interest of appellant by his agent as also commission of corrupt practice by obtaining assistance of persons in the service of the Punjab Government. The allegation was that Giani Zail Singh was the Chief Minister of Punjab at the relevant time and it was he who had put up the appellant as a candidate even though the members of the Assembly belonging to Indian National Congress computing their voting strength in the Assembly had only fielded two candidates Smt. Amarjit Kaur and Sat Pal Mittal. The Chief Minister Giani Zail Singh in order to snatch the third seat no legitimately available, fielded appellant as his candidate and to secure his election, power of office was abused. Seven members of Assembly belonging to Akali Party and alone Jan Sangh M.L.A. were detained under the Maintenance of Internal Security Act, the detenus included P.W. 16 S. Parkash Singh Badal, detained in Tihar Central Jail at Delhi, Prosecution witness 15, S. Jaswinder Singh Brar, and Prosecution witness 14 S. Jagdev Singh Talwandi, detained in Central Jail at Patiala, S. Basant Singh Khalsa, detained in Jail at Nabha, Prosecution witness 13 S. Surjit Singh Barnala, detained in Jail at Jallundur, S. Gurbachan Singh and S. Kundansingh Patang, detained in Jail at Sangrur, all belonging to Akali Party and Dr. Baldev Prakash belonging to Jan Sangh. These detenus applied for postal ballots with a view to exercising their right of franchise and they did in fact exercise their franchise. In course of counting it transpired that four postal ballot papers were tampered with and the tampering indicated that the first preference vote in favour of respondent 1, Gurcharan Singh Tohra, the Akali candidate was altered to show second preference vote as also to indicate a first preference vote in favour of the appellant. This was noticed by Prosecution witness 12 S. Manjit Singh Khera who was the counting agent of respondent 1. It was alleged that Giani Zail Singh abused his power as Chief Minister by bringing pressure upon S. Partap Singh, the Returning Officer, Sardar Tirth Singh Sobti, a Sub-Post Master and the Superintendents of Jails at Sangrur, Patiala and Nabha, for facilitating the tampering and thereby four additional first preference votes were wrongly received in favour of the appellant to which he was not entitled and the valid votes in favour of first respondent were denied to him by improper refusal and that it has directly and materially affected the result of the election. It was, however, stated in the petition that though the tampering of four ballot papers was self-evident, they, the petitioners were not in a position to state the exact method adopted in this behalf. The allegation of corrupt practice was that with the assistance of Chief Minister Giani Zail Singh official machinery was pressurised and utilised to get the appellant elected. To the election petition the returned candidate, namely, the present appellant whose election was called in question, two other returned candidates and the defeated Akali candidates were impleaded as respondents. The returned candidate, the present appellant contested the petition, inter alia, contending that the whole petition is based on conjectures and surmises. The allegation of corrupt practice was firmly denied. He also denied his relationship with Giani Zail Singh and further denied that he was a candidate put up by Giani Zail Singh. Any allegation of tampering was denied and it was contended that Akali Party presented a picture of a house divided and, therefore, the surmise made that members belonging to the Akali Party would enblock vote for the Akali candidate is not justified. It was contended that the petitioners as admitted by them in the petition were not in a position to state the exact method and process adopted by the Returning Officer and his accomplices in tampering with the postal ballots and, therefore, the case put forth in the petition is a figment of imagination, devoid of particulars and the petition is liable to be thrown out on this ground. The learned Judge of the High Court before whom the petition came up for hearing framed as many as seven issues. One issue was whether a case for inspection of ballot papers is made out? The central issue was whether four ballot papers were unauthorisedly tampered with after the voters thereof had cast their first preference on them in favour of Akali candidate, and if so, whether they were there by coverted in favour of the returned candidate by changing the figure I placed against the name of Akali candidate into figure II and further placing the figure I in favour of the returned candidate. On the finding of this issue a further issue had to be answered whether the four votes were improperly received and counted in favour of the returned candidate and improperly refused to Akali candidate in whose favour they were cast, and if this miscount materially affected the result of the election? There was an issue about alleged corrupt practice which was held not proved and was answered in favour of the returned candidate.
(3.) IT may be noticed that neither the election petitioners (respondents 2 and 3 in this appeal) nor the appellant, the returned candidate, nor respondent 1 the unsuccessful Akali candidate stepped into the witness box. Election petitioners examined P.W. 12 Sardar M.S. Khera, counting agent of respondent 1, four voters whose votes were alleged to have been tampered with and an expert P.W. 17 Dewan K.S. Puri. On behalf of the appellant R. W. 1 S. Partap Singh, the Returning Officer, R. W. 2 Karnail Singh Marhari, R. W. 3 Master Jagir Singh to prove defection from Akali Party, and R. W. 4 the expert Mr. R. K. Vijh to prove that though the four ballot papers appear to be tampered, it must be by voters themselves, were examined. The learned Judge held that the four ballot papers, one each allotted to Prosecution witness 13 S. Surjit Singh Barnala, Prosecution witness 14 S. Jagdev Singh Talwandi, Prosecution witness 15 S. Jaswinder Singh Brar and Prosecution witness 16 S. Parkash Singh Badal, were tampered with in that each of the voter had cast his first preference vote in favour of the unsuccessful Akali candidate S. Gurcharan Singh Tohra and no second preference vote was indicated and each one of the vote was altered so as to appear that each one of them had cast his first preference vote in favour of the returned candidate, the appellant, and second preference vote in favour of S. Gurcharan Singh Tohra. On this finding the learned Judge concluded that these four votes were improperly received in favour of returned candidate and improperly refused to the unsuccessful Akali candidate and there has thus been a miscount and a recount was necessary and on the recount the unsuccessful Akali candidate secured 27 first preference votes by the addition of the aforementioned four tampered votes to the 23 first preference votes already polled by him and that deducting four first preference votes from the 23 first preference votes already counted in favour of returned candidate he polled 19 first preference votes. On this recount unsuccessful Akali candidate respondent 1 was shown to have polled first preference votes in excess of the quota and, therefore, there was no necessity to take into account the second preference votes. Accordingly the election petition was allowed and the unsuccessful Akali candidate was declared elected and the election of the returned candidate was set aside. Hence this appeal by the returned candidate.;