RAFIQ KHAN Vs. LAXMI NARAYAN SHARMA

JUDGEMENT

(1.) The appellant is the original election petitioner whose Election petition No. 14 of 1994 came to be dismissed by A. K. Mathur, J. of the High court of Madhya Pradesh at Jabalpur, He has, therefore, preferred this appeal against the dismissal of his election petition. The brief facts giving rise to the appeal may be stated as under:

(2.) There is no doubt that the appellant had submitted his nomination form on 30/10/1993. In the nomination form the proposer's number was initially written as 136 but was corrected by converting the figure 6 into 8 to 138. Was this correction made before the submission of the nominationpaper or some time thereafter i. e. after it came to be rejected by the returning Officer As pointed out earlier, besides himself the appellant relies on the evidence of Appellant 2 and the proposer Feroz Khan. There can be no doubt that all the three witnesses examined on behalf of the appellants are highly interested witnesses for the reason that Appellant 2 jodha Ram had joined hands with Appellant 1 in filing of the election petition. Their evidence must, therefore, be scrutinised with great care. The successful candidate examined himself as RW 1 and RW 2 Shri Ram maheshram, the Assistant Returning Officer (the Returning Officer then not being available). The learned trial Judge was not prepared to place implicit reliance on the testimony of the three witnesses Public Witness 1, Public Witness 2 and Public Witness 3. He did not uphold the contention of the appellants that the nomination form was corrected before it was submitted and that there was no interpolation. The learned trial Judge has gone to the length of holding that the appellant was guilty of tampering with an important official document. The Assistant returning Officer has deposed that after the forms were submitted, the candidate and the proposer were called to remain present at the time of scrutiny and even though their names were announced on the microphone, neither of them turned up and, therefore, after examining the forms by himself, he rejected the nomination paper since the name of the proposer did not appear at Serial No. 136 in the voters' list.

(3.) The learned counsel for the appellants took us through the electoral roll as well as the documentary evidence and contended that the learned judge had overlooked certain important and significant aspects of the evidence placed on record. Firstly, he contended that before he submitted the nomination form he had taken out a photocopy and the same was appended to the petition. He says that this photocopy belies the contention that the figure 136 was changed to 138 after the rejection of the nomination paper. There is no other evidence except that of the appellants and the proposer in this behalf. In the first place it is difficult to understand why the Returning officer should reject the nomination paper if the name of the proposer and the serial number are correctly recorded. Appellant 1 as well as his proposer say that they were not called before the rejection of the nomination paper. Now, in the ordinary course, official action must be presumed to have been done in accordance with the rules and the procedure. Secondly, even on the statement of Appellant I, he and his proposer went to the place of scrutiny at about 3. 00 p. m. Thirdly, it is an admitted fact that he did not raise any objection when his nomination was rejected on 1/11/1993. In ordinary course if he and his proposer were present at the time of scrutiny and their names were not announced on the microphone we would expect them to react by enquiring of the Returning Officer why his name was not announced at all. The evidence of RW 2 shows that the names of the candidates who had submitted the nomination forms were announced one after another and when his name was announced, neither he nor his proposer turned up before the Returning Officer. If he and his proposer were in fact present they would have responded to the call and if despite their presencehis nomination form was rejected, there would be any number of independent witnesses available to corroborate his version, since even according to him the room was full. Therefore, the conduct of the appellant and his proposer does not seem to be natural; more so because both the appellant and his proposer are lawyers. They certainly would have reacted sharply if their names were not called out when the names of all others were called out. This unnatural conduct leads one to believe that the appellant's contention that his name was deliberately not announced as the Returning officer had made up his mind to reject his nomination form, does not appear to be correct. Merely because he produced in court a photocopy of the corrected nomination form cannot advance his case. He must satisfy the court that the photocopy was taken out before the rejection of the nomination form. No doubt he has said so in his evidence but it is difficult to believe his version for the simple reason that if the form had been submitted after correction and the photocopy was taken out in advance, his conduct would have been totally different at the time when his name was not announced at the scrutiny of the nomination forms on 1/1 1/1993. Therefore, on the totality of evidence it is difficult to hold that the learned Judge committed any error in the appreciation of evidence placed before him. We do not think it necessary to express any opinion as to whether the appellant was guilty of tampering with the document at any point of time after its submission because that is a matter for investigation. However, we think that on the totality of evidence before the court, the view taken by the High court is a plausible view and we would not be justified in interfering with it.