C P JOSHI Vs. KALYAN SINGH CHOUHAN

JUDGEMENT

(1.) After framing of the issues on 5.5.2010 in this election petition, the respondent submitted this application on 11.5.2010, being IA No.6839/2010 and prayed for summoning of the following documents :-

(2.) Heard learned counsel for the parties. The respondent in the application gave details of the documents referred above and stated only that the above documents are pertaining to Nathdwara Legislative Assembly Constituency No.176 regarding the election held on 4.12.2008 and shall be required for the purpose of resolving the controversy involved in the present election petition and, therefore, this application may be allowed and the above referred documents may be summoned.

(3.) Learned counsel for the respondent submitted that even if it is not disclosed that for what purpose, these documents will be needed by the respondent and even if they have not been relied upon in the reply to the election petition and even if they have not been entered in the list of documents, yet in view of the judgment of the Hon'ble Apex Court delivered in the case of Wilfred D'souza vs. Francis Menino Jesus Ferrao reported in 1977 SCR 942, the respondent has right to give evidence for all the tendered votes irrespective of the fact that the respondent has not relied upon the documents anywhere in the reply and has not entered the above documents in the list of documents of the respondent. It is submitted that the tendered votes presupposes that there is a claim of casting vote by other than genuine voter and the tendered vote is given to the person after satisfying about his identity by the competent officer as provided under the provisions of Representation of People Act, 1951 and, therefore, all the tendered votes are required to be counted in the election petition.