- (1.) 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. 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. 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. 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' ). 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. 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. "
(3.) 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. 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. 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. " 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. " ;