HARI SHANKAR PRASAD Vs. SHAHID ALI KHAN

JUDGEMENT

(1.) This is an appeal under Section 16(A) of the Representation of the People Act, 1951 (for short the Act) against the judgment of the Patna High Court dismissing the election petition filed by the appellant and upholding the election of respondent No.1 to the State of Assembly.

(2.) The appellant-Hari Shankar Prasad contested the election held in February, 2000 as a candidate for Sitamarhi Assembly Constituency No. 67 in the State of Bihar. He was a B.J.P. candidate whereas the respondent No.1 - Shahid Ali Khan, who has been declared elected has been a candidate of Rashtriya Janta Dal. A number of other candidates were also in the fray. The polling was held on 22-2-2000, the counting was done on 25.2.2000 and the result was declared on 27.2.2000. Respondent No.1 - Shahid Ali Khan was declared elected defeating his nearest rival, namely, the appellant - Hari Shankar Prasad by a margin of 35 votes.

(3.) The appellant filed an election petition inter alia on two grounds which seem to have been pressed before the High Court one in respect of rejection of 90 votes casted in his favour and the other about loss of a bundle of another 50 ballot papers in his favour. The High Court has not accepted either of the grounds which now been raised in this appeal but the learned counsel for the appellant has confined his submissions in regard to rejection of 90 ballot papers which were casted in his favour. In the fourth round of the counting of the votes of Booth No. 49 at Table No. 7, it was found that 90 ballot papers in favour of the appellant were marked by the stamp of "distinguishing mark" used by the polling officer while issuing the ballot paper and not by the stamp meant for voting. These ballot papers were separated and not counted for the appellant. The polling agent of the appellant raised objection and lodged a protest in writing to the Returning Officer but of no avail. A fax message was flashed to the Election Commission, on behalf of the appellant. A reference also seems to have been made to the Election Commission of India by the Returning Officer of No. 67 Sitamarhi Assembly Constituency. The Election Commission in response thereof issued the directions on 26-2-2000, a copy of which has been placed on the record as Annexure P-7. It reads as follows: