T A AHAMMED KABEER Vs. A A AZEEZ

JUDGEMENT

(1.) Issues 19 & 20 : These are considered together for the sake of convenience. According to the declaration of results the first respondent has won with a majority of 21 votes; the votes secured by the 1st respondent being 55638 and those secured by the petitioner being 55617. The decoding of the disputed 28 votes was effected on 5.2.2002. (See the minutes kept separately). The details of vote position that emerged from decoding is available in Ext. C11 series marked on the same day. The procedure followed in the matter of decoding was spoken to by CW2 expert also today. His evidence conforms to the requirements of S.65B of the Indian Evidence Act and during hearing no reason at all was pointed out by either side as to why the result of decoding of 28 votes evidenced by Ext. C11 series should not be admitted in evidence and considered. The cumulative effect of Ext. C11 series is that out of the impugned 28 votes which had been taken into account by the Returning Officer 21 votes secured by the first respondent have to be ignored as void. That sets off the majority declared in favour of the first respondent.

(2.) The decoding also shows that out of the remaining 7 votes impugned by the petitioner, the vote relating to Ext. X34(b) (see Ext. C11(h)) has gone in favour of candidate No. 3 (second respondent herein) and that the votes exercised by voters vide Exts. X32(g), X30(a), X46(b), X46(a), X25(a) and X38(a) entries in the Register of voters which are indicated in Exts. C11(a), C11, C11(b), C11(g) and C11(k) decoding reports had actually gone in favour of the petitioner himself. They are also void votes on the petitioners own showing. But then Ext. X18 tendered vote has gone in favour of the petitioner. If the aforesaid six votes are taken as void and credit is given for Ext. X18 vote, the consequence would be that the petitioner would loose the election by a margin of five votes. Faced with this situation the petitioner has now taken up a contention that the six votes aforementioned are not void in so far as they are not impugned as void in the recrimination petition filed by the first respondent. Counsel submits that inspite of the fact that 6 votes have gone in favour of the petitioner, they should not be taken into account while settling the tally as they were not impugned by the first respondent in his recrimination petition. In this regard case law was also relied on.

(3.) I find no merit in the said contention of the petitioner. This Court had made clear in Para.60, 71 and 83 of the judgment pronounced on 9.1.2002 that after decoding necessary adjustments would be made regarding all the 28 votes. That includes the said 6 votes as well. Ext. X18 tendered vote has also to be given credit. There is no reason to take a different stand at this stage. More over the prohibition contained in S.97 of the Representation of Peoples Act, 1951 relied on by the petitioner is only against reception of evidence from the returned candidate in the absence of any recrimination petition. First of all, in the instant case there exists a valid recrimination petition filed by the first respondent. That apart, I find nothing in S.97 which stands in the way of ignoring the votes which are found to be void even on the showing of the petitioner himself, ie., without the aid of any recrimination petition. On evidence I had already found in the relevant paragraphs of the judgment, mentioned supra that the petitioner has established the fact that the votes covered by Exts. X32(g), X30(a), X46(b), X46(a), X25(a) and X38(a) are void. It necessarily follows that the petitioner cannot take shelter under S.97 to contend that those votes are really valid. The petitioner cannot be allowed to blow hot and cold. He cannot wriggle out of the situation created by himself by pleading and proving that the aforesaid six votes are in fact void. A void vote means it was a vote that was never in existence at all. The petitioner cannot seek to resuscitate or resurrect the said 6 votes.