LAXMINARAYAN AND ANOTHER versus RETURNING OFFICER AND OTHERS

Citation: [1974] 1 S.C.R. 822 · Decided: 28-09-1973 · Supreme Court of India · Bench: P. JAGANMOHAN REDDY · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

822 
LAXMINARA YAN AND ANOTIIER 
v. 
RETURNING OFFICER AND OTHERS 
September 28, 1973 
[P. JAGANMOHAN REDDY AND S. N. DWLYEDI, JJ.] 
Representation of the People Act (43 of 
1951). Ss. 
98, 
116A, 
119, 
123(4)Corrupt practice-Scope of review by appellate Court-'lncurred' in S· 
119, meaning of-Conduct of Election Rules, 1961, r. 63-Scope of. 
Evidence Act ( 1 of 1872) Ss, 98 and 159 to 161-Record of speeches in 
shorthand and long hand-Admissibility. 
'Bhrashtachar', meaning of. 
JD and RS were two of the five candidates for election to the Lok Sabha. 
JD was the returned candidate .and RS polled the next highest number. of votes. 
After the counting of the votes, RS applied for a recount under r. 63 of the 
Cond.uct of Election RuL~s, 1961. In the petition he alleged that the difference 
in votes obtained by JD and himself was marginal, that more than 7000 votes 
were declared invalid; that votes have not only been declared as 
invalid but 
also that ''admitted disputed votes" were not properly counted, and that . the 
number of votes declared invalid materially affected the result of the election. 
He also alleged certain irregularities. The Returning Officer directed that all the 
votes cast in favour of JD and RS as well as the rejected votes should be re-
counted. 
There was a slight discrepancy in the number of votes obtained by 
each of the two candidates, and in the number of rejected votes, in the recount, 
but there was no effect on the result of the election. 
In a petition challenging the election of JD the 
followin~ grounds were 
urged, (!) that the election should be set aside under s. IQO(!) (iii) and (iv) 
of the Representation of the People Act, 1951, because, the votes have-not been 
properly counted as valid or invalid and there was a violation of rule 63; and 
(2) that JD was guility of corrupt practice under s. 123 ( 4) of the Act in that 
statements were made and __ documents published, by person, with the consent of 
JD attacking the personal Character of RS; that his election agent distributed a 
weekly containing an attack on the personal character of RS; and that JD him-
self made such statements and published such documents. The petition was dis-
mis.ed by the High Court. 
Dismissing the appeal to this Court (except in respect of costs), 
HELD : (I) The plea in the election petition that valid votes have been 
counted as invalid and invalid votes as valid would not include the plea that 
anY valid votes of RS and other candidates have been counted as valid for JD. 
Therefore, it was not necessary to recount the votes of candidates other than 
JD and RS. 
On the allegations contained in the application .to the Returning 
Officer he could not have ordered a recount of all the votes and his order 
directing recount was not in contravention of rule 68. 
The discrepancies in the: 
number of votes was satisfactorily explained and there was no acceptable evi-
. dence of the alleged irregularities. [826 C; 827 A-BJ 
(2)(i) Section !16A of the Act provides for appeal 
to this Court . from 
an order of the High Court dismissing an election petition and an appeal lies 
on issues of both of law and of facts. Section 116C applies the Code of Civil 
Procedure as nearly as possible in the determination of the appeal. The power 
of the appell,ate courts is very wide. It can reappraise the evidence and reverse 
the trial court's findings of fact, but the practice of the appellate court however, 
has uniformly been to give the greatest assurance to the 
assi:~sme~t of the 
evidence made by the judge who hears the witnesses and watches their de-
meanour and judges of their credibility in the first 
instance. The appellate 
court may interfere with a finding of fact if the trial court is shown to have 
overlooked any material feature in the evidence of a witness or if the balance of 
probabilities as io the credibility of the witness is inclined agai_ns~ the opinion, 
B 
c 
I) 
E 
G 
H 
A 
B 
c 
D 
F 
G 
H 
LAXMINARAYAN v. RETURNING OFFICER (Dwivedi, /.) 
823 
of th.:: trial court. This limitation on the power of the appellate court · in a 
tir&t appeal from decrees will also apply to an election appeal undef s. 116A. 
ln an appeal bupien is on the- appellant to prove how the judgment under 
appeal is wrong. To establish this he must do something mote than merely 
ask for reassessment of the evidence. He must show wherein the assessment 
had gone wrong. This is especially so when the alleged corrupt practice

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