Election (Offences and Punishment) Act, 2063 (2007)


Published: 2007

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Election (Offences and Punishment) Act, 2063 (2007)1
Election (Offences and Punishment) Act, 2063 (2007).
Date of authentication and publication: 2063/12/12 (March 26, 2007)
Act Number 2 of the Year 2063
An Act Made to Amend and Consolidate Prevailing Laws Relating to Election
Offences and Punishment

Preamble: Whereas, it is expedient to amend and consolidate the prevailing laws relating
to election offences and punishment;
Now, therefore, The Legislative-Parliament has enacted this Act.
Chapter-1
Preliminary
1. Short title and commencement: (1) This Act may be called as the "Election
(Offences and Punishment) Act, 2063 (2007)."
(2) This Act shall come into force immediately.
2. Definitions: Unless the subject or the context otherwise requirs, n this Act,-
(a) "Constitution" means the Interim Constitution of Nepal, 2063 (2007).
(b) "Election" means an election to the members of the Constituent Assembly or
such other elections as to be held pursuant to the prevailing laws in force, and
this expression also includes by-elections.
(c) "Period of election" means the period from the date for filing of nomination
papers by candidates to the date of declaration of election results.
(d) "Candidate" means a person whose name is included in the list of candidates.
(e) "Political party" means a political party registered pursuant to the prevailing
laws for the purpose of election.
(f) "Voter" means a person whose name is registered in the Electoral Rolls for
election pursuant to the prevailing laws.
(g) "Voting right" means the right of any person to vote in the concerned election
pursuant to the prevailing laws.
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(h) "Commission" means the Election Commission refer d to in Article 128 of
the Constitution.
(i) "Constituency" means the constituency delimited for election pursuant to the
prevailing laws.
(j) “Polling station" means a polling station established for the purpose of
casting votes in election pursuant to the prevailing aws, and this expression
also includes a sub-station.
(k) "Returning Officer" means the Chief Returning Officer or Returning Officer
appointed by the Commission, and this expression also includes the Assistant
Returning Officer.
(l) "Polling Officer" means the Polling Officer appointed by the Commission,
and this expression also includes the Assistant Polling Officer.
(m) "Electoral Rolls" means the Electoral Rolls, along with the details of voters,
prepared in accordance with the prevailing laws.
(n) "Ballot paper" means the ballot paper in the format as specified by the
Commission to be used by the voter to vote in an election, and this expression
also includes any electronic device that safely retains the expression of vote,
if any, cast through electronic device.
(o) "Ballot box" means such ballot box used to contain ballot papers expressing
votes as managed by the Commission for containing the ballot papers, and
this expression also includes any electronic device that safely retains the
expression of vote, if any, cast through electronic device.
(p) "Court" means the court specified by the Government of Nepal, in
consultation with the Supreme Court, and by a notification in the Nepal
Gazette so as to try and settle cases related with election, and, in the case of
the election to the Constituent Assembly, this exprssion also includes the
Constituent Assembly Court referred to in Article 118 of the Constitution.
......also includes the Constituent Assembly Court to be constituted pursuant
to Article 118 of the Constitution.
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(q) "Investigating Officer" means such officer as designated by the Commission
by a notification in the Nepal Gazette pursuant to sub-section (1) of Section
23 so as to investigate and enquire into the offences punishable under this
Act.
(r) "Monitoring Team" means a Monitoring Team formed by the Commission
under the prevailing laws so as to monitor the election activities.
Chapter - 2
Electoral Offences
3. Prohibition on voting by impersonation: No person shall, by impersonation,
obtain a ballot paper for polling or cast vote, or cause to be caste vote.
4. Prohibition on making influence: No person acting on behalf of any political
party or candidate or his or her agent or other person shall, in the course of
election, influence, in any manner, any candidate or voter or any person with
whom any of them has concern or interest in an election by committing any of the
following acts:
(a) Making obstruction, obstacle or intimidation, r causing such act to be made,
with intent to prevent any person from making candidacy in an election or
canvassing election or exercising the right to vote;
(b) Demonstrating or using weapons or explosive substances of any kind;
(c) Causing any kind of damage;
(d) Showing any kind of fear, threat, terror or menace;
(e) Threatening to boycott socially;
(f) Showing gratification or greed or economic benefit in any manner;
(g) Causing to swear or promise.
5. Prohibition on damaging character: No person acting on behalf of any political
party or candidate or his or her agent or other person shall, with intent prejudice
the results of election, damage, in any manner, the character of any candidate or
his or her family member, by making false accusation of any matter which relates
to the character or conduct of the candidate or his or her family member.
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6. Prohibition on propagation: No person acting on behalf of any political party or
candidate or his or her agent or other person shall, whi e propagating, or causing to
be propagated, the policies and programs of such political party or candidate in the
course of election, propagate, or cause to be propagated, with any of the following
intentions:
(a) Undermining the independency, sovereignty, territorial or national integrity
of Nepal;
(b) Prejudicing the state authority vested in the people or competitive multi party
democracy;
(c) Jeopardizing the harmonious relations subsisting among various religions,
castes, tribes or communities or inciting to commit any violent act or
creating hatred or enmity on the basis of any languge, religion, community
or region;
(d) Inciting others to commit any act that is considered to be an offence pursuant
to the prevailing laws.
7. Prohibition on exchange of cash or kind: No person acting on behalf of any
political party or candidate or his or her agent or other person shall, during the
period of election, give or agree to give any voter cash or kind as a present, reward,
gratification, donation or gift to exercise or refrain from exercising his or her right
to vote or for the exercise of or refraining from exercising his or her right to vote;
and even the voter shall not receive or agree to receiv such cash or kind for
himself or herself or any other person for that purpose.
8. Employee not to influence election: No Returning Officer, Polling Officer or
other officer, employee or officer or security personnel deputed at any polling
station or observer deputed by the Commission shall, in the course of performing
any act of election, perform, or cause to be performed, any act in favour of or
against any candidate in an election, except the act of giving his or her vote for any
candidate pursuant to laws.
9. Prohibition on disturbing peace: No person shall, from three hours prior to the
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commencement of the polling to the completion of the polling on the day for
polling for any election, disturb, or cause to be disturbed, peace by doing any of
the following acts in the house, building or place where the polling station is
located or in any private or public house, building or land situated within two
hundred meters from such house, building or place in such a manner as to cause
obstruction in the act of polling or to the voters or the persons or employees
engaged in the act of polling at the polling station:
(a) Using loudspeakers, megaphones or similar other devices, or
(b) Playing musical instruments, singing and dancing, holding public parties,
demonstrating rallies or organizing assembly or functio of any kind
whatsoever or making or, causing to be made, commotion r manhandling
or shouting.
10. Prohibition on going armed or using arms: No person other than the employee
deputed in for the security shall make movement taking arms, poisonous or
explosive substances or stick, spear, Khukuri, gun, pistol or any other arms of a
similar nature, exhibit or use or explode, or cause to be exhibited or used or
exploded, such substances.
11. Prohibited acts: No person shall commit, or cause to be committed, any of the
following acts:
(a) To insert any matter in, deface, correct, remove any matter from, any details,
notice or any other document relating to election affixed by, or caused to
affixed by, any person or employee engaged in the acts relating to election or
tear or destroy or damage or mutilate such details, notice or other document
in any other manner;
(b) To delete, deface, correct, forge, damage or tea the signature or seal of the
Returning Officer or the Polling Officer affixed to any ballot paper or any
mark or sign affixed to the ballot paper;
(c) To supply a ballot paper obtained by any voter in accordance with the law to
cast vote to any other person in any manner or put into any ballot box
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anything other than the ballot paper which he or she i authorized to put into;
(d) To grab, loot, steal, tear or otherwise damage, destroy or mutilate the ballot
paper or any other document that is to be used or has been used in the act of
election, with or without the use of force of any kind;
(e) To grab, loot, steal, damage or otherwise mutilate any ballot box to be used or
used in the act of election, to break seal of such ballot box or to open it in an
unauthorized manner with or without the use of force of any kind;
(f) To take any ballot box, ballot paper, vote marking seal, stamp pad, ink or any
other material to be used or used for the polling out of a polling station or to
anywhere else during the period of polling, without the permission of the
Polling Officer;
(g) To show or exhibit the ballot paper after ascribing the symbol on it,
(h) To cause obstruction of any kind in any manner to the employees engaged in
the act of election in the performance of their functions.
12. Prohibition on receiving or giving ballot paper illegally : (1) No person shall,
for the purpose of casting votes illegally, acquire, or cause to be acquired, any
ballot paper from any other person, by giving or ageeing to give cash, kind,
service or any kind of gratification to anyone by coercing, intimidating or
threatening or by using or not using any kind of force.
(2) The authorized officer taking custody of ballot papers shall not supply
such ballot papers to any unauthorized person by receiving or not receiving or by
agreeing or not agreeing to receive cash, kind, service or any other kind of benefit.
13. Restriction on election Propagation: (1) For the purpose of canvassing election,
no poster, wall painting, Tul or other banner shall be used, or caused to be used, or
printed or caused to be printed, except for the distribution of simple pamphlets in
such size, shape and color as specified by the Commission.
(2) For the purpose of canvassing election, no mike and loud speaker
shall be used in other places, except for the purpose of a public assembly or
disseminating information of such assembly.
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(3) Any pamphlets prepared pursuant to sub-section (1) for the purpose
of election canvassing shall have to bear the name nd address of the press and
the political party or person getting them printed.
(4) No person shall affix, or cause to be affixed, any posters, pamphlets to,
or write, or cause to be written on, any religious, archaeological or historical or
government owned or controlled buildings, monuments, walls or structures for
election canvassing.
(5) No person shall affix, or cause to be affixed, any posters, to any private
house, shop, wall or other structure without the permission of the owner thereof,
for election canvassing.
(6) No person shall, with the object of soliciting or giving votes for or
against any candidate, convene or organize meetings, processions or raise slogans
and canvass in any other manner within the election area during the period from
forty-eight hours prior to the day for polling to the completion of the act of polling.
14. Prohibition on making entry in unauthorized manner or causing
obstruction to counting of votes or other acts of election: (1) Except for the
candidate or his or her agent or person permitted by the Commission, no other
person shall be allowed to enter the vote counting place.
(2) No person shall grab, loot, damage or destroy in any manner any ballot
boxes or ballot papers or any other documents relating to the election during the
counting of votes in any election with or without the use of force or take them
elsewhere from the place for counting of votes without the permission of the
Returning Officer or cause obstruction of any kind i any manner to any other acts
relating to election.
15. Prohibition on divulgence of secrecy: No Returning Officer, Polling Officer, any
other employee or security personnel deputed by the Commission and involved in
the act of election or any observer or monitor deput d by the Commission or any
candidate or any of his or her agents or any voter r any other person shall, in any
election, divulge to anybody or write or disclose in any manner the matter as to
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whether any voter has voted or not or for which candidate he or she has voted or
who has secured how many votes or other matter pertaining to the counting of
votes as well as any kind of symbol or sign or any other matters in a manner to
identify the voter from the ballot paper.
Provided that, this Section shall not be deemed to bar the publicly
announcing by the Returning Officer or the officer authorized by him or her of the
number of votes received by candidates, in the course of counting of votes or the
making of statements, writing or publishing any thing on the basis of such
information.
16. Use of vehicles: (1) No political party or candidate or his or her agent or any
other person shall, in the course of election canvassing, use, or cause to be used,
vehicles exceeding the number as permitted by the Commission.
(2) No political party or candidate or his or her agent or any other person
shall, in the course of election canvassing, use or cause to be used any vehicles
belonging to the government or organizations owned by the government or the
local body.
(3) Notwithstanding anything contained elsewhere in this Section, any
political party or candidate or his or her agent or observer related to the act of
election, human right activist, journalist or similar other person may use a vehicle
on the election day only if the Commission so permits.
17. Prohibition on attempt, aid or incitement: No person shall attempt to
commit, aid in the commission of, or incite the commission of, any offence
referred to in this Chapter.
18. Power to arrest: (1) The Returning Officer or Polling Officer or Monitoring Team
may order any person whoever causes obstruction or attempts to or aids or abets to
cause obstruction to the polling or counting of votes or any other act of election to
refrain from doing such act and to go out of that pl ce.
(2) The Returning Officer, Polling Officer or Monitoring Team may order
the concerned security personnel to arrest any person who commits any act
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prohibited under Sections 3, 9, 10, 11, 12 or Section 14 and who does not carry out
the order issued by the Returning Officer or Polling Officer or Monitoring Team
pursuant to sub-section (1).
(3) The security personnel shall carry out the order issued by the Returning
Officer, Polling Officer or Monitoring Team pursuant to Sub-section (2).
(4) If the security personnel fails to carry out the order issued pursuant to
sub-section (2), the Returning Officer, Polling Officer or Monitoring Team shall
write to the Commission for departmental action against such security personnel.

Chapter - 3
Penalties
19. To impose fine immediately: (1) The following officer shall punish any person who
commits the following act with a fine ranging from five hundred rupees to ten
thousand rupees, depending on the gravity of offence:
(a) Except for voting by a person who is not a citizen of Nepal, in the case of
commission of any act in contravention of Section 3 or Clauses (b), (c), (f)
and (g) of Section 11, the Polling Officer;
(b) In the case of commission of any act in contravention of Section 9 or Clauses
(d) and (e) of Section 11, the Polling Officer or Monitoring Team;
(c) In the case of commission of any act in contravention of Section 10 or
Clauses (a) and (h) of Section 11 or Section 13 or Section 14 or Section 16,
the Returning Officer, Polling Officer or Monitoring Team.
(2) Upon receipt of the amount of fine imposed pursuant to Sub-section (1),
the fine imposing officer shall immediately give a receipt of payment of such fine
to the concerned person.
(3) A person who is not satisfied with the decision of the fine imposing
officer pursuant to sub-section (1) may make an appe l to the concerned Appellate
Court within thirty five days.
(4) The fine imposing officer may hand over any person who does not pay
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the fine pursuant to Sub-section (1) to the concerned police office to imprison such
person for the amount of fine in accordance with the prevailing laws.
(5) Where any person acting on behalf of a political party or candidate or his
or her agent or any other person uses any vehicle in contravention of Section 16,
the fine imposing officer referred to in Clause (c) of Sub-section (1) shall seize the
vehicle for the period of election, and where such vehicle belongs to any
governmental or government owned body or local body, shall write to the
Commission for departmental action against the officer who has provided such
vehicle.
(6) Where any person acting on behalf of a politica party or candidate or
his or her agent or any other person uses pamphlet or poster, wall painting, Tul or
other banners in contravention of Section 13, the fin imposing officer referred to
in Clause (c) of Sub-section (1) may seize such pamphlet, poster, Tul or banner and
issue an order to maintain the place where such poster, wall painting, Tul or other
banner has been used as it was before.
(7) The fine imposing officer referred to in clause (c) of Sub-section (1)
may fine a candidate who does not carry out the order issued pursuant to Sub-
section (6) with additional sum not exceeding ten thousand rupees and recover
from such candidate the expenditures incurred in making the place where such
pamphlet, poster, wall painting, Tul or other banners have been used as it was
before.
(8) Where any person, after marking vote on a ballot paper, shows or
exhibits the ballot paper to any one, the fine imposing officer referred to in Clause
(a) of Sub-section (1) shall, while imposing fine, put the ballot in a separate sealed
envelope, containing such details, and execute a recognizance deed, and such a
ballot paper shall not be counted in a case where such ballot paper has not yet been
inserted to the ballot box.
(9) Notwithstanding anything contained elsewhere in this Section, once a
person has been fined for any offence by the fine imposing officer pursuant to this
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Section, the other fine imposing officer referred to in this Section shall not fine
such person again for the same offence.
20. To Public: The fine imposing officer referred to in Section 19shall, while
imposing a fine on any person, immediately publicize the matter pertaining to the
offence committed by such person and the fine imposed on such person in any
newspaper or any other communication media for the information of the general
public.
21. Penalties: (1) Where any person commits any act in contravention of Section 4, 5,
6, 7, 8, 12 or Section 15, such person shall be punished with a fine from ten
thousand rupees to fifty thousand rupees or with imprisonment for a term not
exceeding two years or with both, depending on the gravity of offence.
(2) Where any person who is not a citizen of Nepal cast vote, such person
shall be punished with a fine not exceeding fifty thousand rupees or with
imprisonment for a term not exceeding one year or with both.
(3) Any person who makes attempt to commit or aids or entices the
commission of the offence referred to in Section 4, 5, 6, 7, 8, 12 or Section 15
shall be punished with half the punishment to be imposed on the principal
offender.
22. Punishment under other prevailing laws : Where any act which is considered as
an offence under this Chapter is also considered as an offence under any other
prevailing laws, this Act shall not be deemed to bar the imposing of punishment
under the laws for such offence.
Chapter-4
Proceeding and Settlement of Cases
23. Investigation and filing of case: (1) The officer designated by the Commission
by a notification in the Nepal Gazette shall investigate and inquire into the
offenses punishable under Section 21.
(2) In the course of the enquiry into and investigation of a case pursuant to
Sub-section (1), the investigating officer may order the concerned police office to
12
arrest the person who, based on sufficient proofs and evidence, is suspected of
being involved in the offense, in accordance with the laws in force.
(3) Where investigation and inquiry cannot be completed within twenty four
hours in relation to a person arrested pursuant to sub-section (2) and there are
sufficient grounds for keeping on investigation and i quiry by holding such person
in detention, the investigating officer shall produce such person before the Court
and detain such person for investigation only with the permission of the Court.
(4) Where a permission for detention is requested pursuant to Sub-section
(3), the Court shall consider whether or not the inqu ry as well as investigation has
been carried out satisfactorily and the reasons for holding the person in custody;
and where it appears that inquiry as well as investigation is being carried out
satisfactorily and there are sufficient ground for h lding such person in detention,
the Court may give permission for holding the person in detention for a maximum
period of fifteen days at one time or at several times.
(5) It shall be the duty of the concerned police office to carry out the order
issued by the investigating officer pursuant to this Section. If the order so issued
is not carried out, the investigating officer shall write to the Commission for
departmental action against such police personnel.
(6) Where it appears to institute a case against any person pursuant to this
Section, the investigating officer shall file a charge-sheet in the Court within sixty
days of the commission of the offence.
Provided that where the defendant is in detention and it appears that case is
to be instituted, the officer shall file a charge-sheet within a maximum period of
fifteen days.
(7) After the completion of enquiry and investigation process, the
investigating officer shall, well in advance of the expiration of the time-limit set
for the filing of charge-sheet in the Court, submit the case-file, accompanied by his
or her opinion and the evidence and proof, as well, to the concerned government
attorney for decision whether or not the case can be i stituted.
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(8) Upon receipt of the case-file pursuant to Sub-section (7), the
Government Attorney shall decide whether or not to institute the case and return
the received case-file well in advance of the expiration of the time-limit for
filing the case where the case is to be instituted; an upon receipt of the decision of
the Government Attorney to institute the case, the investigating officer shall
prepare a charge sheet and file it in the Court.
(9) The Government Attorney shall defend the case fil d by the
investigating officer under this Act.
24. To be Government case: The Government shall be plaintiff in any cases related
with the offences referred to in Section 21.
25. Trial and settlement of cases: (1) The Constituent Assembly Court shall try and
settle cases related with any offence punishable und r Section 21 in relation to the
election to the Constituent Assembly and with the election to be voided pursuant to
Chapter-5.
(2) The Court designated under this Act, other than the Constituent
Assembly Court, shall try and settle cases related with any offence punishable
under Section 21 in relation to any election, other than the election to the
Constituent Assembly and with the election to be voided pursuant to Chapter-5.
(3) An appeal may be made to the court designated by the Government
of Nepal by a notification in the Nepal Gazette against the decision made by the
court as referred to in Sub-section (2); and the decision made by the court so
designated shall be final.
26. Procedures for settlement of cases : Notwithstanding any thing contained in Sub-
section (1) of Section 3 of the Summary Procedures Act, 2028 (1972), the
procedures set forth in the said Act shall be followed while trying and settling
cases under this Act.
Chapter - 5
Provisions Relating to Invalidation of Election
27. Petition for voiding election: (1) Any concerned candidate may, in any of the
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following circumstances, file a petition in the Court directly or through the District
Election Officer designated by the Commission to have the election declared void
within thirty five days of the date of cause of action:
(a) the election has not been fair due to the commission of acts in
contravention of Sections 3,4, 5, 6, 7, 8, 10 or Clauses (b), (c), (d), (e) or
(h) of Section 11, Section 12 or 14 extensively in the election;
(b) the result of election has been affected owing to the fact that the nomination
paper filed by any person to be a candidate in the election has not been
validated which should have been validated or has not been voided or
cancelled which should have been voided or cancelled;
(c) the elected candidate has made expenses in the election, in excess of the
ceiling specified pursuant to the laws in force or made expenses unusually
or illegally or improperly for unlawful purposes.
(2) Where a petition filed pursuant to Sub-section (1) is proved, the
Court shall void the election of the elected candidate.
(3) Notwithstanding any thing contained in Sub-sections (1) and (2), the
whole election or the election of the elected candidate shall not be voided if the
following matter is proved:
(a) that any activity set forth in Clause (a) of Sub-section (1) or Section
4, 5, 6 or 7 has been done without information or cnsent of the
elected candidate or his or her agent or he or she has made an
attempt to prevent such activity in the election; or
(b) that the result of election has not been actually affected by any
activity set forth in Clause (a) of sub-Section (1).
28. Recounting of votes: (1) The concerned candidate in any election may, in any of
the following circumstances, file a petition in the Court directly or through the
District Election Officer designated by the Commission to have the counting of
votes declared void within fifteen days of the date of cause of action:
(a) another candidate has won the election by illega y securing votes
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despite that he or she or any other candidate has secured majority;
(b) the ballot papers to be invalid have not been invalidated or the ballot
papers to be valid in accordance with laws have not been validated;
(c) the counting of votes has not been done in accordance with laws.
(2) Where a petition filed pursuant to Sub-section (1) is proved, the Court
may void such counting of votes and recount the vots.
(3) Where, in recounting the votes pursuant to Sub-section (2), the petitioner
candidate or any other candidate is proved to have secured majority of votes and
the election result appears to have been affected by that reason, the election result
of the elected candidate shall be void; and the Court shall declare the petitioner
candidate or any other candidate to have been elected in accordance with the laws.
29. Procedures to be followed in the event of equality of votes: (1) The Court
shall, while recounting the votes in the course of trying a petition referred to in
Section 27 or 28, count the votes secured by all candidates of the concerned
election constituency.
(2) The counting of the votes pursuant to Sub-section (1) shall be done in
the presence of the candidate or his or her agent.
Provided that, where information on the counting of v tes has been duly
given, nothing shall bar the counting of votes by the reason of the absence of the
candidate or his or her agent.
(3) Where, in counting the votes pursuant to Sub-section (1), two or more
than two candidates secure an equal number of votes, th Court shall make decide
by lot between the candidates who secure the equal n mber of votes; and the
candidate selected as per that decision shall be deemed to have been elected by
securing one additional vote.
30. Inadmissible as evidence: Any reply made by any witness to any question asked
by the Court in the course of trying a case referred to in this Act shall neither be
admissible as evidence in any case instituted against h m or her nor be permitted to
be furnished as evidence.
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31. Withdrawal of petition: Any petitioner may, with the permission of the Court,
withdraw the petition filed by him or her pursuant to Section 27 or 28.
Provided that, where the Court considers that the petitioner has made an
application to withdraw the petition for any undue b nefit, it shall not grant the
permission for the withdrawal of such petition.
Chapter – 6
Miscellaneous
32. Question not to be asked about voting: Notwithstanding any thing contained in
this Act or the prevailing laws, in any case or legal proceeding instituted under this
Act, any witness or any other person shall not be asked whom he or she has voted
for.
33. Deposit to be furnished: (1) While filing a petition pursuant to Section 27 or
28, a deposit of ten thousand rupees has to be furnished.
(2) Where the petition is held to be false, the deposit referred to in Sub-
section (1) shall be forfeited.
34. Repeal: The Election (Offence and Punishment) Act, 2047 (1990) is, hereby,
repealed.