MARKIO TADOversusTAKAM SORANG

                     [2013) 6 S.C.R. 475


                        MARKIO TADO                                A
                              v.
                       TAKAM SORANG
               (Civil Appeal No. 8260 of 2012)
                        MAY 10, 2013
                                                                   B
         [G.S. SINGHVI AND H.L. GOKHALE, JJ.]

     Constitution of India, 1950 - Article 141 - Act of judicial
impropriety - State Legislative Assembly elections - Appellant
declared elected defeating his nearest rival, the respondent       C
No. 1 - Respondent No. 1 filed election Petition challenging
the election of appellant on ground of corrupt practice of booth
capturing - Respondent no. 1 also moved I.A. alleging double
voting claiming it to be a facet of booth capturing, and praying
for calling of the records of the voters' counterfoils (in Form    D
17A) - Single Judge of the High Court called for such records,
but that order set aside by the Supreme Court on ground that
impersonation and double voting would amount to deception
and it will be a facet of improper reception of votes and not
booth capturing - Notwithstanding the judgment of Supreme          E
Court, subsequently, the Single Judge of the High Cotirt
directed the. registers of voters (Form 17A) to be sent to FSL
for scientific examination and verification of signatures/finger
prints and after examination of court witnesses including
finger print expert, and the defence witnesses, allowed the        F
Election Petition - Further, the Single Judge held that
respondent no. 1 had received more votes, and therefore,
declared him as elected from the constituency concerned -
On appeal, held: The Single Judge of High Court clearly
transgressed the limits of his jurisdiction by going into the      G
counterfoils of the voters inspite of the fact that the Supreme
Court had already ruled in the facts of the present case, that
no case was made out for calling of the counjerfoils - This
amounts to nothing but judicial indiscipline and disregard of
                             475                                   H
    4 76    SUPREME COURT REPORTS                   [2013] 6 S.C.R.


  the mandate of Article 141 of the Constitution - The Election
  Petition was filed only on the ground of booth capturing which
  was not established - The Single Judge entered into an
  impermissible exercise, and deleted the votes received by the
  appellant which he considered to be tainted votes - The Judge
B ignored that even if the ground of improper reception of votes
  u/s.100(1)(~)(iii) was to be taken, the respondent no.1 had
  failed to establish that the result of the election of the appellant
  had been materially affected by such improper reception of
  votes - Further, this resulted into a waste bf the time of the
c Court, which is so precious - Representation of the People's
  Act, 1951 - s.123 (8) rlw s.135A & s.100 (1) (d) (iii) - Judicial
  discipline.

       In the State Legislative Assembly elections, the
  appellant was declared elected defeating his nearest rival,
D the respondent No. 1, by 2713 votes. Respondent No. 1
  filed electioti Petition before a Single Judge of the High
  Court challenging the election of appellant on the ground
  of corrupt practice of booth capturing.

E      The respondent no.1 also moved an interlocutory
  application alleging double voting and praying for calling
  of the recor(ls of the voters' counterfoils (in Form 17A).
  The Single Judge of the High Court called for the record
  of registers of voters' counterfoils in form 17A, but that
F order was set aside by the Supreme Court in Civil Appeal
  No. 1539 of 2012. The Supreme Court held that booth
  capturing is a specific corrupt practice under section 123
  (8) read with section 135A of the Representation of the
  People's Act, 1951 which involves use of force, whereas
G impersonation or double voting is on the basis of
  deception; that· impersonation or double voting would
  lead to improper reception of votes, which is another
  ground for declaring an election to be void under section
  100 (1) (d) (iii) of the Act, and this ground was not pleaded
  in the petition nor was any issue framed thereon for trial;
H
         MARKIO TADO v. TAKAM SORANG                   477


that having failed to place any material with respect to      A
either booth capturing or impersonation, the first
respondent was trying to make fishing and roving inquiry
to improve his case by calling for the record of the voters
register, in support of his grievance of double voting and
that an order for inspection of ballot papers could not be    B
granted to support the vague pleas made in the petition
not supported by material facts or to fish out the evidence
to support such pleas.

     Notwithstanding the judgment of the Supreme Court,       C
subsequently, the Single Judge of the High Court
directed the registers of voters (Form 17A) to be sent to
the Forensic Science Laboratory (FSL) for scientific
examination and verification of signatures/finger prints
appearing in Form 17A and for ascertaining as to whether
the thumb impression and signatures contained and             D
recorded in Form 17A (voters register) were put single
handedly and fraudulently by few persons as a measure
of impersonation of the genuine voters concerned. The
Single Judge thereafter proceeded to examine court
witnesses including finger print expert, and also             E
examined the defence witnesses, and thereafter allowed
the Election Petition, holding the election of appellant to
be void. On the basis of the calculations of votes made
by the Judge, the Single Judge held that respondent no.1
had received more votes, and therefore, declared him as       F
elected from the constituency concerned. This order was
challenged in the present appeal under Section 116A of
the Representation of the People's Act, 1951.

    Allowing the appeal, the Court                            G
    HELD: 1. The Election Petition was filed only on the
ground of booth capturing. The respondent No. 1 himself
accepted that he could not name any person involved in
the act of booth capturing. The evidence on record
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    478     SUPREME COURT REPORTS                 [2013] 6 S.C.R.


A clearly showed that, apart from some allegations, there
  was no material evidence placed in support thereof. The
  petitioner tried to claim impersonation and double voting
  as a facet of booth capturing. This submission was
  already rejected by this Court while deciding C.A No. 1539
B of 2012 by holding that impersonation and double voting
  would arriount to deception and it will be a facet of
  improper reception of votes and not booth capturing.
  Booth capturing involves use of force and that was not
  established. The petition was not filed on the ground of
c improper reception of votes. Even if that ground was to
  be looked into, the respondent No. 1 accepted in his
  evidence that he had no direct evidence regarding casting
  of votes by impersonation. (Para 23] (492-B-E]

       Harl Ram v. Hira Singh AIR 1984 SC 396; Fulena Singh
D v. Vijoy Kr. Sinha 2009 (5) SCC 290: 2009 (1) SCR 748; Ram
  Sevak Yadav v. Hussain Kami/ Kidwai AIR 1964 SC 1249:
  1964 SCR 235 and Markio Tado v. Takam Sorang and Ors.
  2012 (3) SOC 236: 2012 (4) SCR 661 - referred to.

E        2. The Single judge of the High Court clearly
    transgressed the limits of his jurisdiction, by going into
    the exercise of calling for the handwriting and finger print
    experts, and comparing the voters' signatures and finger
    prints with the help of the records in Form 17A, when that
F was clearly held to be impermissible in the present case
    itself. This i$ apart from the fact that this has resulted into
    a waste of the time of the Court, which is so precious.
    The evidence was recorded on a number of dates and so
    many witnesses, including public officers, were called
G when their evidence was not required. The Judge clearly
    ignored that the law declared by this Court is binding on
  · all courts within the territory of India under Article 141 of
    the Constitution, and judicial discipline required him to
    follow the mandate of the Constitution. He entered into
    an impermis$ible exercise, and deleted the votes received
H
         MARKIO TADO v. TAKAM SORANG                      479

by the appellant which he considered to be tainted votes.        A
The judge, therefore, ignored that even if the ground of
improper reception of votes under section 100(1)(d)(iii)
was to be taken, the respondent no.1 had failed to
establish that the result of the election of the appellant
had been materially affected by such improper reception          B
of votes. The decision of the Single Judge was therefore
clearly flawed and untenable. [Paras 24, 25] [492-F-G; 493-
F; 494-B-C]

   Azar Hussain v. Rajiv Gandhi AIR 1986 SC 1253: 1986           C
SCR 782 - referred to.

     3. The Single Judge of the High Court went in~o the
counterfoils of the voters inspite of the fact that this court
had already ruled in the judgment in C.A. 1539 of 2010,
that in the facts of the present case, no case was made          D
out for calling of the counterfoils. It is not that he was
unaware of the judgment rendered by this court.
However, he proceeded to act exactly contrary to the
direction contained in the said judgment which amounts
to nothing but judicial indiscipline and disregard to the        E
mandate of Article 141 of the Constitution. This is
shocking, to say the least, and most unbecoming of a
judge holding a high position such as that of a High
Court Judge. It is unfortunate that such acts of judicial
impropriety are repeated inspite of clear judgments of this      F
court on the significance of Article 141 of the Constitution.
[Para 26 & 27] [494-D-F, H; 495-A]
   · Dwarikesh Sugar Industries Ltd. v. Prem Heavy
Engineering Works (P) Ltd. and Anr. (1997) 6 SCC 450: 1997
(1) Suppl. SCR 184; State of West Bengal & Ors. v.               G
Shivanand Pathak and Ors. (1998) 5 SCC 513: 1998 (1) SCR
811 - referred to.
    4. The Election petition filed by the respondent no.1
is accordingly dismissed. [Para 28] [495-G]                      H
    480      SUPREME COURT REPORTS               [2013] 6 S.C.R.


A                         Case Law Reference:
          AIR 1984 SC 396              referred to     Para 15
          2009 (1) SCR 748             referred to     Para 15
          1964, SCR 235                referred to     Para 18
B
          2012 (4) SCR 661             referred to     Para 10
          1986 SCR 782                 referred to     Para 24
          1997 (1) Suppl. SCR 184      referred to     Para 27
c
          1998 (1) SCR 811             referred to     Para 27

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8260 of 2012.

D      From the Judgment and Order dated 12.11.2012 of the
    Gauhati High Court in Election Petition No. 1 (AP) of 2012.

          Manish Goswami (for Map & Co.) for the Appellant.

          Abhijit Sengupta for the Respondent.
E
          The Judgment of the Court was delivered by

       H.L. GOKHALE J. 1. This statutory appeal under Section
  116A of the Representation of the People's Act, 1951, seeks
  to challenge the judgment and order of the Gauhati High Court
F dated 12.1 t.2012, allowing the Election Petition No. 1(AP) of
  2009, renumbered as Election Petition No. 1 (AP) of 2012, filed
  by the Respondent No. 1 whereby the election of the appellant
  from 20-Tali (ST) constituency of the Arunanchal Pradesh
  Assembly was declared void, and whereby the first respondent
G was declared elected to the State Legislative Assembly from
  the said constituency. After passing of the said judgment and
  order, the appellant applied for the stay of the said order, and
  the learned Judge by his order dated 16.11.2012 stayed the
  impugned juC!lgment and order for a period of 14 days from the
H date of the said order. He made it clear that the appellant will
           MARKIO TADO v. TAKAM SORANG                        481
                 [H.L. GOKHALE, J.]

have the right to participate in the assembly proceedings but        A
will not have the right to vote and will not be entitled to any
remuneration as an elected member of the assembly. This
appeal, therefrom, was admitted on 27.11.2012, and by the
order passed on that date by this Court, the above order dated
16.11.2012 was directed to continue to remain in operation.          B
This interim order has been subsequently continued until further
orders.

     2. Facts leading to this appeal are as follows. The
appellant and the respondent No. 1 herein contested the
election to the Arunachal Pradesh Legislative Assembly from          C
20-Tali (ST) Assembly Constituency held in October 2009. The
respondent no.1 was the sitting MLA from the said constituency
at the time when the election was held, and the Government
formed by the Indian National Congress was in power in the
State. The appellant was a candidate of the People's Party of        D
Arunanchal Pradesh (PPA), and the first respondent was that
of the Indian National Congress. The voting took place on
13.10.2009, and the appellant was declared elected on
22.10.2009, defeating his nearest rival the respondent No. 1,
by 2713 votes. Respondent No. 1 filed Election Petition No. 01/      E
2009 to challenge the election of the appellant on the ground
of corrupt practice of booth capturing.

      3. This 20-Tali (ST) Assembly Constituency consists of two
circles viz. (i) Tali, and (ii) Pipsorang. Each of the circles was   F
having 10 polling stations. It was alleged in the petition by the
first respondent that on two polling stations viz. (i) 7-Roing and
(ii) 2-Ruhi from circle Tali, boxes (containing EVMs) were
illegally removed by the party workers of the appellant, and
votes in favour of the appellant were cast single handedly. The      G
genuine voters were not allowed to exercise their voting rights
as they were threatened for their lives by the miscreants of the
appellant. It was claimed that polling agents of the first
respondent, at these two polling stations, jointly reported about
the happenings in these polling stations on 15.10.2009, to the
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   482      SUPREME COURT REPORTS                  [2013] 6 S.C.R.


A Assistant Returning Officer. It was further alleged that such
  incidents also took place in 6 more polling stations.

        4. It was stated in para 9 of the petition, that it was
  necessary to bring the EVMs and counter foils of Form 17A
  (register of voters) of these 8-polling stations (mentioned in
8
  para-7 of the petition) for forensic test and other examinations
  etc. before the Hon'ble Court for proper adjudication of the case.
  It was clairlTled that the votes received by the appellant in these
  8 polling stations were 3763, and if they were deleted from the
  votes of appellant, the first respondent would "be declared as
C elected. It was prayed that the records of (i) register of voters
  counterfoils (Form 17-A) of these 8 polling stations described
  in paragraph 7 of the petition, (ii) EVMs of these 8 polling
  stations, and (iii) records relating to 20 Tali (ST) Assembly
  Constituen~y be called, and the appellant be directed to show
D cause as to why votes cast by booth capturing in 8 polling
  stations, in favour of the appellant, should not be declared as
  illegal, and the election order dated 22.10.2009 not be declared
  as void, and why the respondent No. 1 should not be declared
  as the elected candidate.
E
        5. The petition was contested by the appellant by filing a
  Written Statement. He submitted that no unfair means were
  employed by him, or by his agents, and stated that the allegation
  of illegal practice adopted in 8 polling stations is completely
F false. He submitted that the election was conducted peacefully
  with free and fair means. The polling stations were guarded by
  police personnel who carried arms and ammunition. There was
  no booth capturing or criminal intimidation at all. EVMs and
  voters' counterfoils were duly verified at the Receiving Centre,
G and there was no need to call for any of these documents, nor
  was there any question to declare the election void.

       6. Thereafter, the learned Judge by his order dated
  8.3.2010 formulated the following issues:- (i) Whether the
  Election Petition is maintainable?; (ii) Whether the polling team
H of 7-Roing polling station alongwith the EVM were kidnapped
           MARKIO TADO v. TAKAM SORANG                           483
                . [H.L. GOKHALE, J.]
on 12.10.2009 by PPA Workers?; (iii) Whether booth capturing             A
was committed at 2-Ruhi and 5-Guchi ·polling stations on
13.10.2009 by PPA workers, including the Petitioner?; (iv)
Whether any offence of booth capturing was committed at any
of the other 5 polling stations; (v) Whether Annexures 1 to 9 to
the Election Petition are forged, fabricated and an afterthought?;       B
(vi) Whether the election of the returned candidate Markie Tado
is liable to be declared void?; and (vii) Whether the Election
Petitioner is entitled to be declared elected?

      7. It is relevant to note that, before the evidence could start,
the first respondent filed Interlocutory Application No. 6 of 2010       C
in the said Election Petition on 29th March, 2010. In para 1
thereof he submitted as follows:-

            " 1. That your applicants beg to state and submit that
     some thousand of voters of those 8 polling stations viz.            D
     (i) Giba, {ii) Tungmar, (iii) 15-Richik, (iv) 7-Roing, (v) 10-
     Yarda, (vi) 5-Guchi, (vii) 8-Dotte, (viii) 2-Ruhi of 20 Tali
     {ST) Assembly Constituency have double entry in
     different 38 polling stations of 13-(ST) Itanagar Assembly
     Constituency. So far your applicant knowledge is                    E
     concerned about 80% of the voters of 20-(ST) Tali
     Assembly Constituency from those 8 polling stations viz.
     (i) 6-Giba, (ii) 4-Tugnmar, (iii) 15-Richik, (iv) 7-Roing, (v)
     10-Yarda, (vi) 5-Guchi, (vii) 8-Dotte, (viii) 2-Ruhi have
     cast their votes at 13-(ST) Itanagar Assembly                       F
     Constituency and not at 20-(ST) Tali Constituency.·

     Thereafter, he gave the list of 38 polling stations of Itanagar
constituency. He claimed that the total number of such voters,
who had their names in those 38 polling stations, was 1304.
He, therefore, prayed that the record of register of voters              G
counterfoils (Form 17-A) of the above 38 polling stations of 13-
(ST) Itanagar Assembly Constituency from the District Returning
Officer, Dist!. Papum Pare be called.

                                                                         H
    484     SUPREME COURT REPORTS                    [2013] 6 S.C.R.


A      8. This application was opposed by the appellant. The
  learned Single Judge noted the submissions on behalf of the
  respondent No. 1. He also noted the submissions on behalf of
  the appellant that there was no allegation of double enrollment,
  and no issue had been framed in this respect in the election
B petition, and therefore the application was liable to be
  dismissed. Having noted the submissions, the learned Single
  Judge rejected the said application by his order dated
  31.03.2010 observing "/am of the considered view that calling
  of records as sought for by the applicant is not justified at this
C stage."
          9. When the evidence was recorded, PW (1) stated that 1
    person voted for another person. PW (2) stated that she was
    not allowed to enter the polling station, and yet she stated that
    there was single handed voting. PW (3) was the polling agent
D   of the respondent No. 1, but he did not state that he lodged any
    complaint about whatever had happened at the polling station.
    PW (4) stated that he was not allowed to enter the polling
    station. He stated that the workers of both the parties were not
    allowed to enter the polling station, but at the same time he said
E   that the polling agents of both the parties were inside the polling
    station. H¢ has filed no complaint. PW(S) made some
    interesting statements. He stated that he was the agent of the
    Indian National Congress, and he was forced to vote for his
    candidate. He also stated that he did not file any complaint with
F   the presiding officer. PW (6) also made similar interesting
    statements in the sense that it was proposed that a few votes
    be casts in favour of Indian National Congress. It is relevant to
    note that at lhe polling station, where he cast his vote, Indian
    National Congress got 42 votes. PW (7) was the polling agent
G   of the first respondent at the Roing polling station. He claims
    to have lodged the complaint, but he does not know who wrote
    that complaint PW (8) stated in his cross-examination that he
    does not know whether any polling officer was kidnapped. PW
    (9) makes an interesting statement that he was forced to cast
H   some votes for the Indian National Congress.
          MARKIO TADO v. TAKAM SORANG                         485
                [H.L. GOKHALE, J.]
      10. Thereafter, the first respondent PW (10) went into the     A
witness box on 4.4.2010. In his examination in chief, he stated
that he had sent a fax message to the Returning Officer of 20-
Tali (ST) Assembly Constituency on 15.10.2009 alleging the
booth capturing of 2-Ruhi and 7-Roing polling stations. He
stated that he had complained about the booth capturing in 6         B
more polling stations, and produced copies of complaints. He
stated that there was single handed voting in favour of the
appellant, and first respondent's voters were threatened and not
allowed to cast their votes. He further stated that a large number
of voters had double entries in the electoral roll of 20 Tali (ST)   c
as well as Itanagar (ST) Assembly Constituency. They had
actually cast their votes at 38 different polling stations of 13-
(ST) Itanagar Assembly Constituency, and in their place votes
were cast in Tali Constituency by the miscreants of the
appellant. The electoral rolls of the two constituencies were to     D
be exhibited. He further pointed out that a vote was cast against
a dead person by name Markie Tama from 2-Ruhi polling
station, and the death certificate of the person concerned was
produced.

      11. The first respondent, in his cross examination on          E
9.6.2010, accepted that he had not made any averments in the
election petition regarding double enrollment of the voters in the
two Assembly Constituencies. He accepted that he was aware
that the final electoral rolls were published by the authorities
concerned before the election was held, prior to which the draft     F
roll was published for information of the voters concerned, and
that he did not lodge any complaint before the authorities
concerned about the double enrollment in the two
constituencies. He explained it by stating that he did not know
that such double enrollment had taken place. He could not say        G
who actually cast the vote for Markie Tama, who had already
expired.

     12. The first respondent accepted that he had appointed
his polling agents for all the polling stations. He knew about the
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    486       SUPREME COURT REPORTS                [2013) 6 S.C.R.


A duties of the polling agents which included raising objection in
  case of Gletection of any impersonation during the polling time,
  before the Presiding Officer concerned by filling up a prescribed
  form alongwith a fee of Rs. 2/-. He stated that his polling agents
  were not allowed to enter into the polling booths, and the
B candidates appointed by the appellant acted as fake polling
  agents far the first respondent. He however, accepted that he
  has not stated in election petition that the candidates appointed
  by the opposite party had acted as fake polling agents for him.
  He further accepted that his complaint to the Returning Officer
c did not mention all the 8 polling stations. It mentioned only about
  2 polling stations. He also accepted that he did not mention the
  names of persons involved in booth capturing. He stated in his
  examination-in-chief itself as follows-

          "I have no direct evidence regarding casting of votes by
D         impersonation by the booth capturing party but it can be
          proved if the finger prints and thumb impression taken and
          the si~natures put in Form 17A of the respective polling
          station are compared by the respective votes."

E       13. The first respondent had alleged that in two polling
  stations viz. Ruhi and Roing, booth capturing had taken place
  which was Qn the basis that in Ruhi the first respondent got only
  3 votes as against appellant getting 697 votes, and in Roing
  he got only one vote as against the appellant getting 1196 votes.
F On this aspect, it was put to him that there were two circles in
  this constituency viz. Tali and Pipsorang. The above two polling
  stations were in Tali Circle. The first respondent accepted that
  the returned candidate secured no vote in 11-Vovia polling
  station. He also accepted that the returned candidate secured
G only 7 votes in 13-Zara polling station, both falling in Pipsorang
  circle. Thereafter, he accepted that

          "It may be correct that securing less vote by a candidate
          may be due to his less attachment to the people of a
          particular area and it may also be the one of the reasons
H         for losing the election."
          MARKIO TADO v. TAKAM SORANG                        487
                [H.L. GOKHALE, J.]

      The first respondent also accepted that Micro Observers       A
were appointed in all the polling stations and they were
provided with digital cameras for their use, as and when
required during the election, for all the purposes.

     14. It was at that stage that the first respondent moved       B
another application viz. Misc. Case No. 05(AP) of 201 O on 29th
June, 2010. In that application he repeated that some of the
voters of the 8 polling stations mentioned earlier, had double
entries in different 38 polling stations of 13 Itanagar (ST)
Assembly Constituency. In para 2 he stated that 30% of voters       c
of Tali Constituency, from those 8 polling stations, had cast
their votes in Itanagar and not in Tali, and in their place the
double voting was effected on behalf of the appellant, and
therefore it was necessary to get the record of the voters'
counterfoils (in Form 17A) from the 38 polling stations under       0
13-(ST) Itanagar Assembly Constituency. The appellant
opposed this application. The counsel for the appellant
submitted that this was a fishing inquiry to improve the case.
This time however, the learned Judge observed:

     'This allegation sounds to be new one, but when it is          E
    closely examined, it also comes under the purview of
    booth capturing because votes by impersonation is one
    of the modus operandi adopted towards accomplishment
    of securing votes by use of illegal method or illegal
    resource."                                                      F

      15. The learned Judge referred to a judgment of this Court
in Harl Ram Vs. Hira Singh reported in AIR 1984 SC 396, that
electoral rolls and counter foils should be called sparingly, and
only when sufficient material is placed before the Court. He also   G
referred to a judgment of this Court in Fulena Singh Vs. Vijoy
Kr. Sinha reported in 2009(5) SCC 290 wherein it was held
that inspection of the record of register of voters in Form 17-A
would be permissible where a clear case is made out. The
learned Judge held that the official record would be the most       H
    488     SUPREME COURT REPORTS                   (2013] 6 S.C.R.


A reliable evidence to decide as to whether there was
  impersonation, and thereafter passed the order calling for the
  record of registers of voters' counterfoils in form 17A from 38
  polling st;;itions of 13-(ST) Itanagar Assembly Constituency,
  which order was challenged by the appellant by filing one SLP
B earlier.

         16. Tllis earlier petition was numbered as Civil Appeal No.
    1539 of 2012 which· came to be decided by this Court on
    2.12.2012. It was pointed out on behalf of the appellant that the
    Election Petition was filed on the basis of corrupt practice of
C   booth capturing, and what was being canvassed on behalf of
    the respondent No. 1 was the allegation of impersonation/
    double voti'ng on the part of the appellant. It was submitted on
    behalf of the appellant that booth capturing is a specific corrupt
    practice under section 123 (8) read with section 135A of 1951
D   Act. Booth capturing involves use of force, whereas
    impersonation or double voting is on the basis of deception.
    This submission was accepted by this Court. This was apart
    from the fact that impersonation or double voting would lead to
    improper reception of votes, which is another ground for
E   declaring arn election to be void under section 100 (1) (d) (iii)
    of the Act, and this ground was not pleaded in the petition nor
    was any issue framed thereon for trial. It was canvassed on
    behalf of the appellant that double voting or impersonation could
    not be considered as facets of booth capturing which was also
F   accepted by this Court.

        17. This Court while deciding Civil Appeal No. 1539 of
  2012 noted !hat there was hardly any evidence to justify any
  plea of impersonation or double voting. Therefore, this Court
G held in the said appeal, that it was thus obvious that having
  failed to place any material with respect to either booth
  capturing or impersonation, the first respondent was trying to
  make fishing and roving inquiry to improve his case by calling
  for the record of the voters register from Itanagar Constituency,
  in support of llis grievance of double voting. In the absence of
H
          MARKIO TADO v. TAKAM SORANG                          489
                [H.L. GOKHALE, J.]
any evidence with respect to the persons who, at the instance          A
of the appellant, allegedly captured the booths or made double
voting or impersonation in Tali Constituency, no such inference
could have been drawn. The learned Single Judge, therefore,
was clearly in error in allowing the second application made
by the first respondent.                                               B

      18. As seen from the above, the learned Judge while
deciding Misc. Case No.5(AP) of 2010 had relied upon the
judgment of this court in Fulena Singh (supra) to justify his
direction to produce the record of register of voters' counterfoils    C
in Form 17-A of 38 polling stations of 13-(ST) Itanagar
constituency. This court, therefore, while deciding Civil Appeal
1539 of 2012 explained the judgment in Fulena Singh, and the
correct legal position with respect to the production of such
records in court. It referred to the Constitution Bench judgment
of this court in Ram Sevak Yadav v. Hussain Kami/ Kidwai,              D
reported in AIR 1964 SC 1249, which has held that an order
for inspection cannot be granted as a matter of course having
regard to the secrecy of the ballot papers. To seek such an order
two conditions are required to be fulfilled:
                                                                       E
     (i)    that the petition for setting aside an election contains
     an adequate statement of the material facts on which the
     petitioner relies in support of his case; and

     (ii) the tribunal is prima facie satisfied that in order to
                                                                       F
     decide the dispute and to do complete justice between the
     parties inspection of the ballot papers is necessary.

      But an order for inspection of ballot papers cannot be
made to support vague pleas made in the petition, not
supported by material facts, or to fish out evidence to support        G
such pleas. In the present case, there was no material
whatsoever to justify the production of the register of counterfoils
of votes in Form 17-A and therefore, this court allowed the said
Civil Appeal and dismissed Misc. Case (EP) No. 05 (AP) of
2010 by judgment and order dated 2.2.2012                              H
    490      SUPREME COURT REPORTS                  [2013) 6 S.C.R.


A      19. Facts which had come on record clearly showed that
  the first respondent received overwhelming votes in some
  polling stations, whereas the appellant received similarly
  overwhelming votes in other polling stations. The first
  respondent had in fact accepted that it depended on the
B popularity of the candidate whether he would receive more
  votes in any particular voting station. Assuming that the ground
  of improper reception of votes could be raised for declaring the
  election to be void under section 100 (1) (d), this Court noted
  in the decision of C.A No. 1539 of 2012 as follows:-
c               "28. Besides, the ground of improper reception
          requires a candidate to show as to how the election in so
          far as it concerns the returned candidate was materially
          affected, in view of the requirement of Section 100 (1) (d)
          of the Act of 1951. First respondent has stated that there
D         were some 1304 double entries of voters. The allegation
          of respondent No. 1 on evidence was only with respect to
          Roing and Ruhi polling station. The votes received by
          the appellant in both these polling stations put together
          come to 1873. The appellant has won with a margin of
E         2713 votes. That being so the second application could
          not have been entertained even on that ground in the
          absence of prima facie case that the result of the election
          had been materially affected."

F       20. Therefore, this Court went into the issue as to whether
  the record of the voters' counterfoils in Form 17 (A) from 38
  polling station of 13 Itanagar (ST) Assembly Constituency could
  be called. It el<amined the relevant provisions of Rule 93 of
  Conduct of Elections rules, 1961 and the judgments governing
G the field, and held in this matter also as in Ram Sevak Yadav
  (supra), that an order for inspection of ballot papers could not
  be granted to support the vague pleas made in the petition not
  supported by material facts or to fish out the evidence to
  support such pleas. This Court therefore, allowed that appeal
H and set aside the judgment and order dated 14.9.2010 and
          MARKIO TADO v. TAKAM SORANG                       491
                [H.L. GOKHALE, J.]
dismissed Misc. Case No. 5 (AP)/2010 dated 29.6.2010. The          A
judgment in Civil Appeal 1539 of 2012 in Markio Tado Vs.
Takam Sorang and Ors. is reported in 2012 (3) SCC 236.

     21. In this background when the matter proceeded further
there was no occasion for the Court to once again call for that    8
record. The learned Judge still passed an order on 19.3.2012
on Misc. Case (EP) 06 (AP) of 2010 holding that:-

           "it is considered expedient to send the registers of
    voters (Form 17A) which were already procured from the
    District Election Authority under sealed cover to the          C
    Director of Regional Forensic Science Laboratory (FSL),
    Police Training Centre, Banderdewa, Arunachal Pradesh
    requesting him to conduct scientific examination and
    verification of signatures/finger prints appearing in Form
    17A and to ascertain as to whether the thumb impression        D
    and signatures contained and recorded in Form 17A
    (voters register) were put single handedly and fraudulently
    by few persons as a measure of impersonation of the
    genuine voters concerned and after such scientific
    examination/verification to submit report to the Registry of   E
    this Court is sealed cover within 3rd of May, 2012. The
    registry was directed to take steps accordingly.

    This order dated 19.3.2012 passed by the learned Judge
was challenged by the appellant by filing Special Leave Petition
                                                                   F
12707 cf 2012, by pointing out that such an order could not be
made in the teeth of the judgment and order rendered by this
Court in Civil Appeal No. 1539 of 2012. However, the appellant,
preferred to withdraw the SLP No. 12707 of 2012
subsequently, with a liberty to agitate the questions raised
therein, if required, when the main Election Petition was          G
decided.

    22. The learned Judge proceeded to examine court
witnesses including finger print expert, CW3. Thereafter, the
court examined the defence witnesses, and after hearing the        H
    492     SUPREME COURT REPORTS                  [2013] 6 S.C.R.


A arguments of the counsel for both the parties allowed the
  Election Petition, and held that the election of the petitioner was·
  void. On the basis of the calculations of votes made by the
  learned judge, he held that the first respondent had received
  more vot~s. and therefore, declared him as elected from the
B constituency concerned. It is this order which is under challenge.

       23. Now, as can be seen from the narration above, the
  Election Petition was filed only on the ground of booth
  capturing . The respondent No. 1 himself accepted that he could
C not name ariy person involved in the act of booth capturing. The
  evidence on record clearly showed that, apart from some
  allegations, there was no material evidence placed in support
  thereof. The petitioner tried to claim impersonation and double
  voting as a facet of booth capturing. This submission was
  already rejected by this Court while deciding C.A No. 1539 of
D 2012 (supra) by holding that impersonation and double voting
  would amount to deception and it will be a facet of improper
  reception of votes and not booth capturing. Booth capturing
  involves use of force and that was not established. The petition
  was not filed on the ground of improper reception of votes. Even
E if that grol!lnd was to be looked into, the respondent No. 1
  accepted In his evidence that he had no direct evidence
  regarding aasting of votes by impersonation.

       24. The lea.med judge has clearly transgressed the limits
F of his jurisdiction, by going into the exercise of calling for the
  handwriting and finger print experts, and comparing the voters'
  signatures and finger prints with the help of the records in Form
  17A, when that was clearly held to be impermissible in the
  present case itself. This is apart from the fact that this has
G resulted into a waste of the time of the Court, which is so
  precious. The evidence was recorded on a number of dates
  and so many witnesses, including public officers, were called
  when their evidence was not required. It would be relevant to
  refer to the observations of this Court in paragraph 12 of Azar
  Hussain v. Rajiv Gandhi reported in AIR 1986 SC 1253 in the
H
          MARKIO TADO v. TAKAM SORANG                         493
                [H.L. GOKHALE, J.)
context of rejecting an election petition summarily, at the          A
threshold, where such a case is not made out. The observations
are to the following effect,

     "12. Learned counsel for the petitioner has next argued
     that in any event the powers to reject an election petition 8
     summarily under the provisions of the Code of Civil
     Procedure should not be exercised at the threshold. In
     substance, the argument is that the court must proceed
     with the trial, record the evidence, and only after the trial
     of the election petition is concluded that the powers under C
     the Code of Civil Procedure for dealing appropriately with
     the defective petition which does not disclose cause of
     action should be exercised. With respect to the lel{lmed
     counsel, it is an argument which it is difficult to
     comprehend. The whole purpose of conferment of
     such powers is to ensure that a litigation which is D
     meaningless and bound to prove abortive should not
     be permitted to occupy the time of the court and
     exercise the mind of the respondent. The sword of
     Damocles need not be kept hanging .over his head
     unnecessarily without point or purpose. . . . . . . . .... .  E

                                           (emphasis supplied)

      25. The judge clearly ignored that the law declared by this
Court is binding on all courts within the territory of India under
                                                                     F
Article 141 of the Constitution of India, and judicial discipline
required him to follow the mandate of the Constitution. He
entered into an impermissible exercise, and deleted the votes
received by the appellant which he considered to be tainted
votes. It is quite shocking to see that the learned judge has
proceeded to delete the votes of the appellant from 8 polling        G
stations, although the grievance was only about Ruhi and Roing
polling stations. By making these deductions, he came to the
conclusion that the respondent No. 1 had received 826 votes
more. As can be seen from paragraph 28 of the judgment,
rendered in Civil Appeal No. 1539 of 2012, that at best the case     H
    494      SUPREME COURT REPORTS                   [2013] 6 S.C.R.


A of the first respondent was that there were double entries of
  voters in 1304 names. The allegation was only with respect to
  two polling stations. In those polling stations, the appellant had
  received 1873 votes. Even if these 1304 votes were to be
  deleted, it would not affect the result materially since the
B appellant had won with a margin of 2713 votes. The learned
  judge, therefore, ignored that even if the ground of improper
  reception of votes under section 100(1 )(d)(iii) was to be taken,
  the respondent no.1 had failed to establish that the result of the
  election of the appellant had been materially affected by such
c improper reception of votes. The decision of the learned judge
  was therefore clearly flawed and untenable.

         26. Thus, the learned judge went into the counterfoils of the
    voters inspite of the fact that this court had already ruled in the
    judgment in C.A. 1539 of 2010, that in the facts of the present
D   case, no case was made out for calling of the counterfoils. It is
    not that he was unaware of the judgment rendered by this court.
     He referre<il to this judgment in Para 9(i) by stating that CA No.
    1539 of 2010 was preferred against his judgment and order
    dated 14.9.2010. Thereafter, he specifically noted "the said
E   Civil Appeal was allowed vide judgment and order dt.
    2.2.2012 dismissing the aforesaid M.C. (EP) No. 5 (AP) of
    2010 under Section 83(1) of the R.P. Act as reported in (2012)
    3 SCC 236." Thereafter, however he proceeded to act exactly
    contrary to the direction emanating from the dismissal of M.C.
F   (EP) No. 5 (AP) of 2010, which amounts to nothing but judicial
    indiscipline and disregard to the mandate of Article 141 of the
    Constitution of India. This is shocking, to say the least, and
    most unbecoming of a judge holding a high position such as
    that of a High Court Judge. We fail to see as to what made the
G   judge act in such a manner, though we refrain from going into
    that aspect.

       27. Before we conclude, we may state that it is unfortunate
  that such acts of judicial impropriety are repeated inspite of
H clear judgments of this court on the significance of Article 141
         MARKIO TADO v. TAKAM SORANG                         495
               [H.L. GOKHALE, J.]
of the Constitution. Thus, in a judgment by a bench of three        A
judges in Dwarikesh Sugar Industries Ltd. v. Prem Heavy
Engineering Works (P) Ltd. and Anr., reported in (1997) 6
sec 450, this court observed,
    "32. When a position, in law, is well settled as a result of
                                                                    8
    judicial pronouncement of this Court, it would amount to
    judicial impropriety to say the least, for the subordinate
    courts including the High Courts to ignore the settled
    decisions and then to pass a judicial order which is clearly
    contrary to the settled legal position. Such judicial           C
    adventurism cannot be permitted and we strongly
    deprecate the tendency of the subordinate courts in not
    applying the settled principles and in passing whimsical
    orders which necessarily has the effect of granting wrongful
    and unwarranted relief to one of the parties. It is time that
    this tendency stops."                                           D

    We may as well refer to Para 28 of the State of West
Bengal & Ors. v. Shivanand Pathak and Ors., reported in
(1998) 5 sec 513, wherein this court observed,
                                                                    E
    "If a judgment is overruled by the higher court, the judicial
    discipline requires that the judge whose judgment is
    overruled must submit to the judgment. He cannot, in the
    same proceedings or in collateral proceedings between
    the same parties, rewrite the overruled judgment..."
                                                                    F
     28. In the circumstances, we have no option but to allow
this appeal and set aside the impugned judgment and order
rendered by the learned judge of Gauhati High Court dated
12.11.2012. The Election Petition filed by the respondent no.
1, bearing Election Petition No. 1(AP) of 2009, renumbered as       G
Election Petition No. 1 (AP) of2012, shall stand dismissed. The
parties will bear their own costs.

B.B.B.                                         Appeal allowed.
                                                                    H