MARKIO TADO versus TAKAM SORANG & ORS.

Citation: [2012] 4 S.C.R. 661 · Decided: 02-02-2012 · Supreme Court of India · Bench: DEEPAK VERMA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2012] 4 S.C.R. 661 
MARKIO TADO 
v. 
TAKAM SORANG & ORS. 
(Civil Appeal No. 1539 of 2012) 
FEBRUARY 02, 2012 
[DEEPAK VERMA AND H.L. GOKHALE, JJ.] 
A 
B 
Representation of the People Act, 1951 - ss. 100(1)(d), 
123(8) and 135A - Conduct of Election Rules, 1961 - r.93 -
Allegation of double voting - Prayer for production and C 
inspection of election papers - Legislative Assembly elections 
- Appellant declared elected defeating his nearest rival the first 
respondent - First respondent filed election petition 
challenging election of appellant on the ground of corrupt 
practice of booth capturing - Single Judge of High Court D 
framed necessary issues - Evidence of first respondent 
recorded - Subsequently, first respondent filed application 
making allegation that double voting was effected on behalf 
of appellant, and therefore it was necessary to get the record 
of the voters' counterfoils from the polling stations -
E 
Application allowed by Single Judge and order passed calling 
for record of registers of voters' counterfoils - On appeal, held: 
The election petition filed by first respondent made the 
grievance of booth capturing - Ground of impersonation or 
double voting was not pleaded in the petition, nor was any F 
issue framed thereon for the trial - Statement of first 
respondent that the appellant had appointed fake polling 
agents for the first respondent was a clear after thought, since 
if it was so, he would have pleaded the same in the election 
petition itself - He did not mention names of the persons 
allegedly involved in booth capturing - Even with respect to G 
impersonation, the only instance pointed out was that of one 
person, but it was not stated in the petition or in evidence as 
to who voted in his place - Having failed to place any material 
661 
H 
662 
SUPREME COURT REPORTS 
[2012] 4 S.C.R. 
A 
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, in support of his grievance of double voting - In 
absence of any evidence with respect to the persons who at 
B 
the instance of the appellant allegedly captured the booths 
or made double voting or impersonation, no such inference 
could have been drawn against the appellant - The Single 
Judge, therefore, was clearly in error in allowing the 
application made by the first respondent - Besides, the ground 
c 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 facts and circumstances of the 
case, the application of first respondent could not have been 
entertained even on the ground of improper reception in the 
0 
absence of prima facie case that the result of the election had 
been materially affected -Inspection of ballot papers and 
counterfoils should be allowed very sparingly, and only when 
it is absolutely essential to determine the issue - Discretion 
conferred on the Court should not be exercised in such a way 
so as to enable the applicant to indulge in a roving inquiry 
E with a view to fish materials for declaring the election to be 
void - Order passed by Single Judge of High Court 
accordingly quashed. 
Representation of the People Act, 1951 - ss.123(8), 135A 
F 
and 100(1)(d) - Elections - Corrupt practices - Booth capturing 
as against impersonation or double voting - Held: The main 
element of booth capturing is use of force or intimidation - As 
against that impersonation or double voting involves cheating 
or deception - Thus, these two grounds deal with two different 
G aspects of corrupt practices. 
H 
Elections - Election petition - Pleadings - Held: In an 
election petition, one has to plead the material facts at the 
outset, and the failure to plead the same is fatal to the election 
petition - Besides, no evidence can be led on a plea which is 
MARKIO TADO v. TAKAM SORANG & ORS. 
663 
not raised in the pleadings and no amount of evidence can A 
cure the defect in the pleadings. 
The appellant and the first respondent contested the 
election to the Arunachal Pradesh Legislative Assembly 
from 20-Tali (ST) Assembly Constituency, wherein the 8 
appellant was declared elected, defeating his nearest rival 
the first respondent, by 2713 votes. The first respondent 
filed Election Petition challenging the election of appellant 
on the ground of corrupt practice of booth capturing

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