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 nomination paper 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 PW 1, PW 2 and PW 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 voter's list.

(3.) THE next contention urged by the learned counsel for the appellant is that even if the Court comes to the conclusion that there was an error in mentioning the figure 136 in the nomination form, that error could not be said to be of a substantial nature to entitle the Returning Officer to reject the nomination form. In this connection our attention was invited to the proviso to Section 33(4).