TATIA, J. - (1.) The petitioner has submitted an application for summoning of the record, documents etc. which are sought to be summoned from the District Election Officer. The documents are as under:- "1. Nomination Papers presented by Shri Kalyan Singh Chouhan along with affidavit. 2.Declaration of Result of election in Form No. 21C of Conduct of Election Rules, 1961. 3.Return of Election in Form 31E of Conduct of Election Rules, 1961. 4. Electoral Roll relating to Polling station No. 39. 5. Electoral Roll relating to Polling station No. 40. 6. Electoral Roll relating to Polling station No. 27 7. Electoral Roll relating to Polling station No. 61. 8. Electoral Roll relating to Polling station No. 73 9. Electoral Roll relating to Polling station No. 117. 10. Electoral Roll relating to Polling station No. 180 11. Electoral Roll relating to Polling station No. 199 12. Market copy of electoral roll relating to Polling station No. 39 13. Marked copy of electoral roll relating to Polling station No. 40 14. Marked copy of electoral roll relating to Polling station No. 27 15. Marked copy of electoral roll relating to Polling station No. 61 16. Marked copy of electoral roll relating to Polling station No. 73 17. Marked copy of electoral roll relating to Polling station No. 117 18. Marked copy of electoral roll relating to Polling station No. 180 19. Marked copy of electoral roll relating to Polling station No. 199 20. Register of Voters in Form No. 17A relating to Polling Station No. 39 21. Register of Voters in Form No. 17A relating to Polling Station No. 40 22. Register of Voters in Form No. 17A relating to Polling Station No. 27 23. Register of Voters in Form No. 17A relating to Polling Station No. 61 24. Register of Voters in Form No. 17A relating to Polling Station No. 73 25. Register of Voters in Form No. 17A relating to Polling Station No. 117 26. Register of Voters in Form No. 17A relating to Polling Station No. 180 27. Register of Voters in Form No. 17A relating to Polling Station No. 199 28. List of Tendered Votes in Form No. 17B relating to Polling Station No. 27 29. List of Tendered Votes in Form No. 17B relating to Polling Station No. 61 30. List of Tendered Votes in Form No. 17B relating to Polling Station No. 73 31. List of Tendered Votes in Form No. 17B relating to Polling Station No. 117 32. List of Tendered Votes in Form No. 17B relating to Polling Station No. 180 33. List of Tendered Votes in Form No. 17B relating to Polling Station No. 199 34. Video CDs containing the videography of polling Process relating to Polling Station No. 39 35. Video CDs containing the videography of polling Process relating to Polling station No. 40 36. Electronic Voting Machine along with Controlling unit of polling station No. 39. 37. Electronic Voting Machine along with Controlling unit of polling station No. 40 38. Electronic Voting Machine along with Controlling unit of polling station No. 27 39. Electronic Voting Machine along with Controlling unit of polling station No. 61 40. Electronic Voting Machine along with Controlling unit of polling station No. 73 41. Electronic Voting Machine along with Controlling unit of polling station No. 117 42. Electronic Voting Machine along with Controlling unit of polling station No. 180 43. Electronic Voting Machine along with Controlling unit of polling station No. 199 44. Tendered Ballot papers at polling station Nos. 27, 61,73,117,180 and 199. 45. Record relating to inclusion of the name of Smt. Kalpana Kunwar/Kalpana singh wife of respondent Kalyan Singh Chouhan in the electoral roll pertaining to Polling Station No. 86 (Numbered 39 in the election held on 4.12.2008) as also Polling Station No. 83 (Numbered 40 in the election held on 4.12.2008) of Nathdwara Legislative Assembly Constituency."
(2.) The petitioner's contention is that all these documents are material documents and are in possession of the District Election Officer, Rajsamand. The petitioner in the election petition earlier sought order from this Court that all material including documents relating to the election in question may be preserved and may not be destroyed. Then, this Court on 25.2.2009 directed the District Election Officer, Rajsamand to preserve all the election material including the voting machines and their controlling units of Nathdwara Legislative Assembly Constituency No. 176 and it has been ordered that it shall not be opened nor it may be given for inspection to anybody without the leave of the court. It is submitted by the learned counsel for the petitioner that since the petitioner has denied the facts relating to the contentions of the petitioner which can be proved only by producing original documents and since the documents are in power and possession of the District Election Officer, Rajsamand and, therefore, without summoning these documents, the petitioner will not be able to prove his case. It is necessary to summon the documents before the issues are framed and evidence of the parties start. The learned counsel for the petitioner, however, submitted that the Electronic Voting Machines as well as the tendered ballet papers at Polling Station Nos. 27,61,73,117, 180 and 199 can be summoned at appropriate stage if they are not summoned and are brought before the Court at this stage.
(3.) The learned counsel for the respondent submitted that the polling agents of the petitioner and the polling agents of the other contesting candidates at six polling stations referred in the application, did not challenge the identity of the voters who cast their votes at the said polling stations by Electronic Voting Machines and allowed them to cast their votes without raising any objection and, therefore, the petitioner is not entitled to summon the documents mentioned at S.No. 6 to 19, 22 to 33 and 38 to 43. It is also submitted that the petitioner is required to prove the allegations on which he has chosen to base his election petition and he cannot be permitted to have a roving and fishing enquiry into the records pertaining to election, whose inspection and production is prohibited by statutory rules in the interest of maintaining and preserving the secrecy of votes. For twice casting vote by respondent's wife Smt. Kalpana Kunwar, it has been stated that she did not cast her vote at Polling Station No. 39 of Part 484 of Nathdwara Legislative Assembly Constituency No. 176 and she cast her vote only at Polling Station No. 40 in Part 727 of Nathdwara Legislative Assembly Constituency No. 176 and that is why, no objection was raised by any of the polling agents including polling agent of the petitioner at the time of polling. Therefore, on this ground also, the petitioner is not entitled to summon the documents mentioned at S.Nos. 5, 12, 13, 20, 21, 34 to 37 and 45. In reply, the respondent stated that the documents mentioned at S.No. 1 in the application and the affidavit with the said document dated 15.11.2008 and 17.11.2008 are not disputed and in view of the facts stated in the application, these undisputed documents need not to be summoned. The same is the position about documents mentioned at S.Nos. 2 and 3 which are not disputed and, therefore, they may also not be summoned. The respondent then stated various facts about other documents and submitted that the petitioner is neither entitled to have inspection nor can claim production of documents as the inspection and production of the documents is prohibited by rule 93 of the Rules of 1961 and, therefore, he is not entitled to summon the Electronic Voting Machines. It has also been stated by the respondent that unless the petitioner proves that the vote or votes were cast by the persons who were not genuine voters, the allegation of the petitioner that the votes cast by them should not have been counted and they should be excluded from the tally of the valid votes, cannot be entertained.;