{"id":57604,"date":"1976-10-26T00:00:00","date_gmt":"1976-10-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/wilfred-dsouza-vs-francis-menino-jesus-ferrao-on-26-october-1976"},"modified":"2018-11-03T03:12:51","modified_gmt":"2018-11-02T21:42:51","slug":"wilfred-dsouza-vs-francis-menino-jesus-ferrao-on-26-october-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/wilfred-dsouza-vs-francis-menino-jesus-ferrao-on-26-october-1976","title":{"rendered":"Wilfred D’Souza vs Francis Menino Jesus Ferrao on 26 October, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Wilfred D’Souza vs Francis Menino Jesus Ferrao on 26 October, 1976<\/div>\n
Equivalent citations: 1977 AIR 286, \t\t 1977 SCR (1) 942<\/div>\n
Author: H R Khanna<\/div>\n
Bench: Khanna, Hans Raj<\/div>\n
           PETITIONER:\nWILFRED D'SOUZA\n\n\tVs.\n\nRESPONDENT:\nFRANCIS MENINO JESUS FERRAO\n\nDATE OF JUDGMENT26\/10\/1976\n\nBENCH:\nKHANNA, HANS RAJ\nBENCH:\nKHANNA, HANS RAJ\nSINGH, JASWANT\n\nCITATION:\n 1977 AIR  286\t\t  1977 SCR  (1) 942\n 1977 SCC  (1) 396\n\n\nACT:\n\t    Conduct   of   Election   Rules,  1961,   rr.   42\t and\n\t56(6)--Tendered ballot paper, what is and use of\n\n\n\nHEADNOTE:\n\t    Rule 42, Conduct of Election Rules, 1961, shows that the\n\toccasion for marking tendered ballet paper would arise if  a\n\tperson\trepresenting himself to be a paticular\telector\t ap-\n\tplies  for a ballot paper after another person\thas  already\n\tvoted  as such elector.\t The person so applying, would\tthen\n\tbe questioned by the presiding officer regarding his identi-\n\tty, and in case he gives a satisfactory answer, he would  be\n\tsupplied  a  tendered  ballot paper which  would  then\t  be\n\tmarked by such person.\tHe. has to sign his name against the\n\tentry relating to him in a list in Form 15, prescribed under\n\tthe  Rules.  The tendered ballot paper shall be the same  as\n\tother  ballet  papers used at the polling,  except  that  it\n\twould  be serially the last in the bundle of  ballot  papers\n\tissued for use at the polling station.\tThe words  'tendered\n\tballot\tpaper' have to be endorsed on the back of  the\tten-\n\tdered  ballot  paper and its counterfoil  by  the  presiding\n\tofficer\t in his own hand and has to be signed by  him.\t The\n\ttendered  ballot paper is not to. be put in the ballot\tbox,\n\tbut  is\t to be kept in a separate cover.   According  to  r.\n\t56(6)  no cover containing tendered ballot papers  shall  be\n\topened or counted at the time of the counting of the  votes.\n\tBut even though the tendered ballot papers are thus excluded\n\tat  the time of counting they can be taken into\t account  in\n\tproceedings to challenge the validity of the election of the\n\treturned  candidate provided, ( 1 ) the person who cast\t the\n\tinitial vote as a voter on a particular serial number in the\n\telectoral  roll\t was someone other than\t the  genuine  voter\n\tmentioned at that number; (2) it was such genuine voter\t who\n\tmarked\tthe  tendered ballot paper; and (3)  the  difference\n\tbetween the number of votes polled by the candidate declared\n\telected\t and his nearest rival is so small that there  is  a\n\tpossibility  of\t that  difference being wiped  out  and\t the\n\tresult of the election being materially affected.  In such a\n\tcase,  the Court would exclude the vote initially cast\tfrom\n\tthe number of votes of the candidate in whose favour it\t was\n\tcast;  and  take into account the tendered ballot  paper  in\n\tfavour of the candidate in whose favour it is duly marked.\n\t    In\tthe present case, the appellant and respondent\twere\n\ttwo  candidates for election to a Legislative Assembly,\t and\n\tthe respondent was declared elected having secured just\t two\n\tvotes more than the appellant.\tThe appellant challenged the\n\trespondent's  election\tand contended that  there  were\t ten\n\ttendered votes and that they should be counted, after remov-\n\ting the votes initially and improperly cast.\n\t    At\tthe  trial of the election petition,  the  appellant\n\texamined on his\t behalf two witnesses, who had, according to\n\tthe appellant, marked tendered\tballot papers at the time of\n\tthe  polling.  The trial court however, took the  view\tthat\n\tthe evidence of the two witnesses did not relate to tendered\n\tballot\tpapers\tbut related to ordinary ballot\tpapers,\t and\n\tdismissed the election petition.\n\tAllowing the appeal to this Court, and remanding the case to\n\tthe trial Court\n\t    HELD:  (1)\tThe  evidence of the two  witnesses  of\t the\n\tappellant is sufficient to prove that their evidence relates\n\tto tendered ballot  papers.  Even though some of the formal-\n\tities which were required to be observed in connection\twith\n\tthe  tendered  ballot papers were not complied with  by\t the\n\tpresiding  officer, as for example, he did not note  on\t the\n\tback of the counterfoil of the tendered ballot paper that it\n\trelated to tendered ballot paper, the parties cannot\n\t943\n\tbe made to suffer for such an omission.\t The evidence of the\n\ttwo  witnesses cannot also be discarded on the\tground\tthat\n\tthey  have not deposed about their having affixed two  thumb\n\timpression instead of one.  [948 F-G]\n\t    (2)\t In view of the fact that the appellant has  adduced\n\tprima  facie  proof in respect of the  two  tendered  ballot\n\tpapers\tthe trial court should now call upon the  respondent\n\tto adduce his  evidence.  The respondent's evidence need not\n\tbe confined to the two tendered ballot papers but may relate\n\tto some or all of the other eight tendered ballot papers  in\n\trespect\t of  which the appellant has not  adduced  evidence.\n\tThe  trial court should thereafter decide the matter in\t the\n\tlight of the legal position. [949 D]\n\tBorough\t of  St. Andrews (4 Orielly &  Hardcastle  32),\t The\n\tStepney\t Division the Borough of Tower Homlets (4 Orielly  &\n\tHardcastle 34),\t  Kalicharan Singh v. Ramcharitar Raj Yadava\n\t&  Ors. (5 ELR 98) and .4. K.  Subharava Gounder v.G.  Pala-\n\tnisami Gounder & Ors. (11 ELR 251) referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
\tCIVIL APPELLATE JURISDICTION: Civil Appeal No. 154 of 1976.
\n\t    (From  the\tJudgment and Order dated 16-12-1975  of\t the
\n\tJudicial  Commissioner’s  Court,  Goa, Daman  and   Diu\t  in
\n\tElection  petition No. 2\/74).\n<\/p>\n
\tV.M. Tarkunde and Shri Natgin for the Appellant.
\n\tHardayal Hardy, S.K. Mehta and P.N. Puri for the Respondent.
\n\tThe Judgment of the Court was delivered by
\n\t    KHANNA,  J.–This  appeal  by  Dr.\tWilfred\t D’Souza  is
\n\tagainst\t  the judgment of learned Judicial Commissioner\t Goa
\n\twhereby be dismissed. election petition filed by the  appel-
\n\tlant to declare the election of Francis Menino Jesus  Ferrao
\n\trespondent to the Goa Legislative Assembly to be void and to
\n\tdeclare instead the appellant to be duly elected.
\n\t    The\t appellant and the respondent were the\ttwo   candi-
\n\tdates\twho sought election to the Goa Legislative  Assembly
\n\tfrom  Benaulim\tAssembly  constituency\tin  the\t by-election
\n\tcaused\tby the death of Vassuudev Garmalkar.   Polling\ttook
\n\tplace on June 9, 1974 and the counting of votes on June\t 10,
\n\t1974.\tAfter the first count, the Returning  Officer  found
\n\tthat  the total number of valid votes cast in favour of\t the
\n\tappellant  was\t4,656  and of those cast in  favour  of\t the
\n\trespondent was 4,654. 234 ballot papers were rejected.\t The
\n\trespondent  then  applied  for recounting of the  votes\t and
\n\tthe   said  application\t was  granted.\t As   a\t result\t  of
\n\trecounting,  it was found that the  appellant  had   secured
\n\t4,651  valid votes, while the respondent had  secured  4,652
\n\tvalid  votes. Seven ballot papers were rejected.  It may  be
\n\tmentioned that at the time of recounting 234 votes which had
\n\tbeen earlier rejected in the first count were not taken into
\n\taccount.   Soon\t after\tthe recount the\t appellant  made  an
\n\tapplication  for  a second recount.   This  application\t was
\n\tgranted\t and the recount took place on the  following\tday,
\n\ti.e., June 11, 1974.  As a result.of the second recount\t the
\n\tappellant was found to have secured 4,650 valid votes  while
\n\tthe  respondent\t was found to have secured 4,652 votes.\t One
\n\tballot paper was rejected. At the time of second recount the
\n\tballot\tpapers\twhich had been rejected at the time  of\t the
\n\tinitial\t counting and the first recount were not taken\tinto
\n\taccount.  In the result the respondent was declared elected.
\n\tThe appellant thereafter filed the present petition on\tJuly
\n\t15, 1974.\n<\/p>\n
\t    Besides  the ground with which we are concerned in\tthis
\n\tappeal,\t the  appellant challenged the election of  the\t re-
\n\tspondent on  the  following two grounds:\n<\/p>\n
\t\t\t “(1)  that in the first and second  recount
\n\t\t      the  Returning Officer illegally accepted\t .in
\n\t\t      favour of\t the returned candidate, some  votes
\n\t\t      which he ought to have rejected, and  rejected
\n\t\t      some votes in favour of the appellant which he
\n\t\t      ought to have accepted under law;
\n\t\t\t  (2)  that  the failure  of  the  Returning
\n\t\t      Officer to re-scrutinize the rejected votes in
\n\t\t      the first and second recounts is illegal”
\n\t\t\tIn  respect of the above two grounds, objec-\n<\/p><\/blockquote>\n
\t\t      tion  was taken by the respondent\t that  there
\n\t\t      was non-compliance with the statutory require-
\n\t\t      ments  of section 83(1)(a) of the\t Representa-
\n\t\t      tion  of\tthe People Act,\t  1951\t(hereinafter
\n\t\t      referred to as the Act) inasmuch as the appel-
\n\t\t      lant  had not set out the material  facts\t re-
\n\t\t      garding  those allegations.  Learned  Judicial
\n\t\t      Commissioner as per order dated March 22, 1975
\n\t\t      held  that  the appellant had failed  to\tgive
\n\t\t      material\tparticulars in respect of the\tsaid
\n\t\t      two grounds.  The petition in that respect was
\n\t\t      held to have not disclosed a cause of  action.
\n\t\t      It  was also held that the appellant  was\t not
\n\t\t      entitled\tto  an order of the  court  for\t re-
\n\t\t      counting the polled votes.  The appellant,  it
\n\t\t      may  be stated, filed a petition seeking\tspe-
\n\t\t      cial  leave  of  this Court against the  above
\n\t\t      order but that petition was dismissed on\tJuly
\n\t\t      31, 1975.\n<\/p><\/blockquote>\n
<\/blockquote>\n
\t\t\t  The  only ground which survives  and\twith
\n\t\t      which we are concerned in this appeal is given
\n\t\t      in  para 9 of the petition.  The\tsame   reads
\n\t\t      as under:<\/p>\n
\t\t\t    “The petitioner further submits that the
\n\t\t      scrutiny\t and counting of the tendered  votes
\n\t\t      is absolutely necessary in this case,  consid-
\n\t\t      ering  the fact that the respondent  has\tbeen
\n\t\t      declared the returned candidate after securing
\n\t\t      in  his  favour  only 2 votes  more  than\t the
\n\t\t      petitioner  and the fact that   the   tendered
\n\t\t      votes  are  10, and that the  non-counting  of
\n\t\t      such votes may materially affect the result of
\n\t\t      the  election,  in so far as it  concerns\t the
\n\t\t      respondent, by the improper reception of votes
\n\t\t      originally polled by persons other than  those
\n\t\t      who   tendered their votes.   The\t petitioner,
\n\t\t      therefore,  submits that the  votes  initially
\n\t\t      and improperly received should be removed\t and
\n\t\t      the  tendered  votes should  be  accepted\t and
\n\t\t      counted instead.”\n<\/p><\/blockquote>\n
\tThe  appellant accordingly asserted that the result  of\t the
\n\telection  of the respondent had been materially affected  by
\n\tthe  improper\treception, refusal and rejection  of  votes.
\n\tPrayer\tmade by the appellant was that the ‘election of\t the
\n\trespondent  be declared void and the  appellant be  declared
\n\tto be duly elected.\n<\/p>\n
\t    The\t petition  was resisted by the\trespondent,  and  in
\n\treply  to  para 9 of the petition the  respondent  submitted
\n\tthat no recount was justified
\n\t945<\/span>
\n\tor required in law merely because of the returned  candidate
\n\thaving secured only two votes more than the defeated  candi-
\n\tdate.\tThe respondent denied that the tendered\t votes\twere
\n\tcast by genuine voters.\n<\/p>\n
\tIssue No. 7 which is the only issue relating to the  allega-
\n\ttion in para9 reads as under:\n<\/p>\n
\t\t\t\t“Whether the petitioner proves\tthat
\n\t\t      the vote\tor  votes were initially  improperly
\n\t\t      received, and should be  removed and in  their
\n\t\t      place  tendered vote or votes should be  taken
\n\t\t      into\taccount.”\n<\/p><\/blockquote>\n
\tThe Judicial Commissioner in his order dated March 22, 1975,
\n\twhile holding that no material particulars had been given in
\n\tthe  petition  in respect of the other two  grounds  of\t the
\n\telection  petition,   found  that regarding  the  allegation
\n\tabout  tendered\t votes material facts had been given  and  a
\n\tcause of action had been disclosed.\n<\/p>\n
\t\tAn application was filed on April 4, 1975 after\t the
\n\tabove  order on behalf of the appellant praying for a direc-
\n\ttion to the District Election Officer to send all the papers
\n\tmentioned in rule 92 of the Conduct of Election Rules,\t1961
\n\tto  the court.\tIn reply to that application the  respondent
\n\tstated\tthat the court should, before sending for  the\tsaid
\n\tpapers,\t call upon the appellant “to make out a prima  facie
\n\tcase by undertaking to examine all the persons who have cast
\n\tthe  tendered votes and producing some of them\tand  proving
\n\tthat they had cast the tendered votes and that they are\t the
\n\ttrue   votes.”\tLearned\t Judicial commissioner after  refer-
\n\tring  to the case of  Rameshwara  Nand\tv. Madho Ram(1)\t and
\n\tsome other cases, passed order dated September 11, 1975, the
\n\tmaterial part of which reads as under:\n<\/p>\n
\t\t\t\t“In  the present case  the  tendered
\n\t\t      votes are only ten and I see no reason why the
\n\t\t      petitioner  should  be allowed  to  break\t the
\n\t\t      principle of secrecy, particularly because the
\n\t\t      necessity of
\n\t\t\tknowing for whom the voters have cast  their
\n\t\t      vote does\t not\tarise now.  The\t petitioner will
\n\t\t      have to establish\t his case before he succeeds
\n\t\t      in this petition.\t He will have, therefore, to
\n\t\t      produce  all his evidence before the  counting
\n\t\t      is done.\n<\/p><\/blockquote>\n
\t\t\t     I\ttherefore order that the  petitioner
\n\t\t      shall  produce before the Court all  the\tevi-
\n\t\t      dence  on which he relies.  I also order\tthat
\n\t\t      the  District  Election Officer  be  asked  to
\n\t\t      produce  the election papers mentioned in rule
\n\t\t      92(2)  of the Conduct of Election Rules,\t1961
\n\t\t      before this Court.”\n<\/p><\/blockquote>\n
\t    The\t appellant thereafter examined two  witnesses,\tJoa-\n<\/p><\/blockquote>\n
\tquine Rodrigoes (PW 1) and Vina Farnandes (PW 2).  These two
\n\twitnesses,  according to the appellant, had marked  tendered
\n\tballot\tpapers at the time of polling.\t  Trunks  containing
\n\telection papers were also sent to the court by the  Election
\n\tRegistration Officer.  As the keys of those trunks were\t not
\n\tavailable, those trunks were broken open in the presence  of
\n\tthe parties. A Panchnama of the packets contained in those
\n\t(1) A.I.R. 1968 Punjab 173.\n<\/p>\n
\ttrunks\twas  then  prepared.  Some  of\tthe  packets  having
\n\tconnection with the tendered ballot papers were opened after
\n\tthe conclusion of the evidence of the two witnesses examined
\n\tby the appellant.\n<\/p>\n
\t    The case was thereafter argued and the election petition
\n\twas dismissed.\n<\/p>\n
\t\tIn  the\t judgment under appeal,\t  learned   Judicial
\n\tCommissioner  examined\tthe evidence of\t the  two  witnesses
\n\tproduced  by the  appellant.  According to the testimony  of
\n\tthese  two witnesses, when they went to the  polling  booth,
\n\tthey  were told\t that  someone\telse had already cast  their
\n\tvotes.\t  When\t these\twitnesses  stated  that\t  they\t had
\n\tnot  .voted,  they were each given a paper  for\t marking  in
\n\tfavour\tof the candidate of their choice.  They then  marked
\n\tthat paper and handed over that paper to the persons present
\n\tthere.\tLearned Judicial Commissioner took the view that the
\n\tevidence  of  these  witnesses did not\trelate\tto  tendered
\n\tballot papers but to the ordinary ballot papers. The  appel-
\n\tlant as such was held to have failed to prove his  case.  In
\n\tthe result, the election petition was dismissed.
\n\t    In\tappeal\tbefore\tus, Mr. Tarkunde on  behalf  of\t the
\n\tappellant has argued that the evidence of the two  witnesses
\n\texamined on behalf  of the appellant relates to the tendered
\n\tballot\tpapers\tmarked by them and that the finding  of\t the
\n\tJudicial  Commissioner to the contrary is not  correct.\t  As
\n\tagainst\t that,\tMr. Hardy on behalf of\tthe  respondent\t has
\n\tcanvassed  for\tthe  correctness of the view  taken  by\t the
\n\tJudicial Commissioner.\n<\/p>\n
\t    Before dealing with this aspect of the matter, we  think
\n\tit  opposite  to deal with the legal  position\trelating  to
\n\ttendered votes.\n<\/p>\n
\t    Rule  42 of the Conduct of Election Rules, 1961  relates
\n\tto  tendered votes and reads as under:\n<\/p>\n
\t\t      “42.  Tendered votes.–(1) If a person  repre-
\n\t\t      senting  himself\tto be a\t particular  elector
\n\t\t      applies  for  a  ballot  paper  after  another
\n\t\t      person  has already voted as such elector,  he
\n\t\t      shall, on satisfactorily answering such  ques-
\n\t\t      tions relating to his identity as the  presid-
\n\t\t      ing  officer may ask, be entitled, subject  to
\n\t\t      the following provisions of this rule, to mark
\n\t\t      a\t ballot\t paper (hereinafter in\tthese  rules
\n\t\t      referred\tto as a ‘tendered ballot paper’)  in
\n\t\t      the same manner as any other elector.
\n\t\t\t    (2)\t Every\tsuch  person  shall,  before
\n\t\t      being  supplied with a tendered ballot  paper,
\n\t\t      sign  his name against the entry\trelating  to
\n\t\t      him in a list in Form 15.\n<\/p><\/blockquote>\n
\t\t\t    (3) A tendered ballot paper shall be the
\n\t\t      same  as\tthe other ballot papers used at\t the
\n\t\t      polling except that–\n<\/p><\/blockquote>\n
\t\t\t (a)  such  tendered ballot paper  shall  be
\n\t\t      serially\tthe  last in the  bundle  of  ballot
\n\t\t      papers  issued for use  at  the  polling\tsta-
\n\t\t      tion; and
\n\t\t      947<\/span>\n<\/p><\/blockquote>\n
\t\t\t (b)  such  tendered ballot  paper  and\t its
\n\t\t      counterfoil   shall  be endorsed on  the\tback
\n\t\t      with   the  words ‘tendered ballot  paper’  by
\n\t\t      the  presiding  officer in his  own  hand\t and
\n\t\t      signed by him.\n<\/p><\/blockquote>\n
\t\t\t    (4)\t The elector, after marking  a\tten-
\n\t\t      dered  ballot paper in the voting\t compartment
\n\t\t      and folding it, shall, instead  of putting  it
\n\t\t      into the ballot box, give it to the  presiding
\n\t\t      officer,\twho shall place it in a\t cover\tspe-
\n\t\t      cially kept for the purpose.”\n<\/p><\/blockquote>\n
\tPerusal\t of the above rule makes it clear that the  occasion
\n\tfor  marking tendered ballot paper would arise if  a  person
\n\trepresenting himself to be a particular elector applies\t for
\n\ta  ballot  paper after another person has already  voted  as
\n\tsuch elector.  The person so  applying\twould then be  ques-
\n\ttioned regarding his identity by the presiding officer\tand,
\n\tin case he gives satisfactory answer, he would be supplied a
\n\ttendered  ballot  paper which would then be  marked  by\t the
\n\taforesaid  person. Such person is also required to sign\t his
\n\tname  against the entry relating to him a list in  form\t 16.
\n\tThe  tendered  ballot papers shall  be\tthe  same  as  other
\n\tballot papers used at the polling, except that it  would  be
\n\tserially the last in the bundle of ballot papers issued\t for
\n\tused  at  the polling station.\tThe words  “tendered  ballot
\n\tpaper”\thave  to  be endorsed on the back  of  the  tendered
\n\tballot paper and its counterfoil by the presiding officer in
\n\this  own  hand\tand has to be signed by\t him.  The  tendered
\n\tballot\tpaper, it is further provided, is not to be  put  in
\n\tthe’  ballot  box  but is to be kept in\t a  separate  cover.
\n\tAccording  to clause (6) of rule 56 of the Conduct of  Elec-
\n\ttion Rules, no cover containing tendered ballot papers shall
\n\tbe  opened at the time of the counting of the votes  and  no
\n\tsuch tendered ballot papers shall be counted. The  Represen-
\n\ttation\tof the People Act, 1951 as well as the\tabove  rules
\n\tare,  however, silent on the point as to what use  would  be
\n\tmade of the tendered ballot papers and how they would affect
\n\tthe result of the election.\n<\/p>\n
\t    Learned  counsel  for the parties are,  however,  agreed
\n\tthat such tendered ballot papers, even though excluded\tfrom
\n\tconsideration  at  the time of counting of votes  after\t the
\n\tpoll, can be taken into account in proceedings to  challenge
\n\tthe  validity  of  the election of  the\t returned  candidate
\n\tprovided  certain conditions are fulfilled.  We\t agree\twith
\n\tthe  learned  counsel for the parties in this  respect,\t and
\n\tfind  that this position of law is supported by two  English
\n\tdecisions,  Borough of St. Andrews(1) and The Stepney  Divi-
\n\tsion  of  the  Borough of Tower Homlets(2)  as\talso  by.two
\n\tIndian decisions, Kalicharan Singh v. Ramcharitar Rai Yadava
\n\t& Ors(3) and A.K. Subbarava Gounder v.G. Palanisami  Gounder
\n\t&  Ors.(4) Before, however, a tendered ballot paper  can  be
\n\ttaken into account during the proceedings of election  peti-
\n\ttion,  evidence\t would have to be led on the  following\t two
\n\tpoints:\n<\/p>\n
\t\t\t  (1)  The person who cast the initial\tvote
\n\t\t      as  a voter on a particular serial  number  in
\n\t\t      the electoral roll was someone other than\t the
\n\t\t      genuine voter mentioned at that number.
\n\t\t       (1)4  Omelly  & Hardcastle  32,\t (2)  Omelly &
\n\t\t      Hardcastle 34.\n<\/p><\/blockquote>\n
\t\t       (3) 5 E.L.R, 98. (4) 11 E.LR. 251.
\n\t\t\t  (2)  It was such genuine voter who  marked
\n\t\t      the tendered ballot paper.\n<\/p><\/blockquote>\n
\t\t      So  far as the first point is  concerned,\t the
\n\t\t      evidence of the genuine voter that he had\t not
\n\t\t      cast  such initial vote would normally and  in
\n\t\t      the absence of any circumstance casting  doubt
\n\t\t      regarding its veracity be sufficient. Once the
\n\t\t      above  two  points are proved,  the  following
\n\t\t      consequences would follow:\n<\/p><\/blockquote>\n
\t\t\t  (a)  The  court  would  exclude  the\tvote
\n\t\t      initially\t cast by the person other  than\t the
\n\t\t      genuine voter from the number of votes of\t the
\n\t\t      candidate in whose favour it was cast; and\n<\/p><\/blockquote>\n
\t\t\t  (b)  The  court would\t further  take\tinto
\n\t\t      account the tendered ballot paper in favour
\n\t\t      of  the candidate in whose favour it  is\tduly
\n\t\t      marked.<\/p>\n
\t    It\tmay also be mentioned that the proper  occasion\t for
\n\tscrutinising  tendered\tballot papers would  normally  arise
\n\tonly when the difference between the number of votes  polled
\n\tby  the candidate declared elected and his nearest rival  is
\n\tso  small  that there is a  possibility of  that  difference
\n\tbeing  wiped out and the result\t of  election\tbeing\tthus
\n\tmaterially  affected  if the court takes  into\taccount\t the
\n\ttendered  ballot papers and excludes from consideration\t the
\n\tcorresponding  votes which were cast by persons\t other\tthan
\n\tthe genuine voters.\n<\/p>\n
\t    The\t present election petition would have to be  decided
\n\tin the light of the legal position set out above.
\n\t    We\thave been taken through the evidence on\t record\t and
\n\tare  of\t the  view that the evidence of\t the  two  witnesses
\n\texamined by the appellant is sufficient to prove that  their
\n\tevidence   relates   to tendered  ballot  papers.   Each  of
\n\tthese  witnesses  has deposed that when she arrived  at\t the
\n\tpolling\t booth, she was told that someone else had cast\t her
\n\tvote. When these witnesses persisted that they had not\tcast
\n\ttheir  votes, each of them was supplied with a\tpaper  which
\n\tshe marked.  Both the witnesses were emphatic that they\t had
\n\tnot. put their votes in the  ballot box and that they handed
\n\tthem over to the  persons  present  at the polling booth.  A
\n\tvery significant circumstance which shows that the  evidence
\n\tof these witnesses relates to tendered ballot papers and not
\n\tto  the\t ordinary  ballot paper is the fact  that  there  is
\n\tactual\t reference  to them in Form No. 15 which relates  to
\n\tlist  of  tendered  votes.  The packet containing  Form\t No.
\n\t15, it needs to be mentioned, was opened after the close  of
\n\tthe  evidence of these two witnesses.  The name of  Joaquina
\n\tRodrigues  is mentioned in Form No. 15.\t The fact  that\t the
\n\tname  mentioned in the electoral roll is Rodrigues  Joaquina
\n\tDomingos  and  not Joaquina Rodrigues is not  very  material
\n\tbecause\t the name of the father of the witness is  Domingos.
\n\tSo far\tas  Vina  Fernandes (PW 2) is concerned, Form No. 15
\n\tdoes  not mention her name but only gives the serial  number
\n\tof   the  tendered  ballot  paper.  The counterfoil  of\t the
\n\ttendered  ballot paper however, makes it clear that  it\t re-
\n\tlates  to serial No. 244 of electoral roll, part   No.\t 12.
\n\tThe   said serial number of the electoral roll\tpertains  to
\n\tVina  Fernandes.  It
\n\t949<\/span>
\n\tappears that some of the formalities which were required  to
\n\tbe  observed in connection with tendered ballot papers\twere
\n\tnot complied with by the presiding officer, e.g., he did not
\n\tnote  on the back of the counterfoil of the tendered  ballot
\n\tpaper that it related to tendered ballot paper. The parties,
\n\thowever,  cannot  be made to. suffer because  of  any\tsuch
\n\tomission on the part of the presiding officer.\tThe evidence
\n\tof the two witnesses examined on behalf of the appellant can
\n\talso  not  be  discarded on the ground that  they  have\t not
\n\tdeposed\t about\ttheir having affixed two  thumb\t impressions
\n\tinstead\t of one thumb impression.  As mentioned\t above,\t the
\n\treference  to  those two voters in Form No. 15\trelating  to
\n\ttendered ballot papers goes a long way to show that it\twere
\n\tthese  two witnesses who marked the tendered ballot  papers.
\n\tTheir evidence also shows that they did not cast the initial
\n\tvotes which were cast  in their names.\n<\/p>\n
\t\tLearned\t Judicial Commissioner in this case did\t not
\n\trecord\t any evidence on behalf of the respondents and\tpro-
\n\tceeded to decide the cast after the evidence of the witness-
\n\tes  of\tthe appellant had been recorded and  after  the\t box
\n\tcontaining  the relevant necessary papers had\tbeen  opened
\n\tand  those papers were examined.  In view of the  fact\tthat
\n\tthe  appellant has adduced prima facie proof in\t respect  of
\n\ttwo of the ten dered ballot papers, the Judicial Commission-
\n\ter,  in our opinion, should now call upon the respondent  to
\n\tadduce\this evidence.  The evidence of the respondent  would
\n\tbe confined not merely to the  two tendere ballot papers  in
\n\trespect of which the appellant has adduced evidence but\t can
\n\talso  relate  to some or all of the  other  eight   tendered
\n\tballot\tpapers\tin respect of which the\t appellant  has\t not
\n\tadduced\t any evidence After the said evidence  is  examined,
\n\tlearned\t Judicial  Commissioner would decide the  matter  in
\n\tthe light of the legal position\t relating to tendered ballot
\n\tpapers as set out above.\n<\/p>\n
\t\tWe  accordingly\t accept the appeal,  set  aside\t the
\n\tjudgment   of the learned Judicial Commissioner\t and  remand
\n\tthe  case  to  him for fresh decision  after  recording\t the
\n\tevidence  of  the respondent in accordance with law  as\t ex-
\n\tplained above.\tThe parties in the circumstances  shall bear
\n\ttheir own costs of the appeal.\n<\/p>\n
\t    We\tare conscious of the fact that the election  matters
\n\tshould\tbe  dis posed of as soon as possible  and  that\t the
\n\tremand of the case would have the effect of further prolong-
\n\ting the matter, yet looking to the face of the case, we find
\n\tno  escape from the conclusion of remand.  Learned  Judicial
\n\tCommissioner, we are sure, would try to expedite the dispos-
\n\tal of the case.\n<\/p>\n
\tV.P.S.\t\t\t\t\t\t      Appeal\n\tallows\n\t950<\/span>\n\n\n\n<\/pre>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Wilfred D’Souza vs Francis Menino Jesus Ferrao on 26 October, 1976 Equivalent citations: 1977 AIR 286, 1977 SCR (1) 942 Author: H R Khanna Bench: Khanna, Hans Raj PETITIONER: WILFRED D’SOUZA Vs. RESPONDENT: FRANCIS MENINO JESUS FERRAO DATE OF JUDGMENT26\/10\/1976 BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ SINGH, JASWANT CITATION: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-57604","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nWilfred D'Souza vs Francis Menino Jesus Ferrao on 26 October, 1976 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/wilfred-dsouza-vs-francis-menino-jesus-ferrao-on-26-october-1976\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Wilfred D'Souza vs Francis Menino Jesus Ferrao on 26 October, 1976 - 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