Karnataka High Court
Abdul Majeed vs Tanveer Sait on 2 March, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02 N D DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
ELECTION PETITION N O.2 OF 2018
BETWEEN:
Abdul Majeed ,
S/o Hasainar,
Aged about 50 years,
No.1279, Abdul Mazeed Manzil,
Near Gup ta Store,
Rajiv Nag ar, 1 s t Stag e,
Mysuru-570019.
...Petitioner
(By Sri Mohammed Tahir, Advocate)
AND:
1. Tanveer Sait
S/o Azeez Sait,
Age about 51 years,
No.532, 9 t h Cross, M.G.Road ,
Ud ayag iri, Mysuru-570019.
2. Abdul Azeez/Abdulla,
S/o Hasanabb a,
Age about 53 years,
No.333, 7 t h Main Road ,
Hanumanthanag ara,
Banni Mantap a, 'C' Layout,
Mysuru-570015.
3. S.Sateesh @ Sandesh Swamy,
S/o Late Subbe Gowda,
Age about 55 years,
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No.27, M.G.Road , New Layout,
Indira Nag ar, Mysuru-570010.
4. Anil Kumar S.,
S/o S.N.Shivanna,
Age about 39 years,
No.L-90, 4 t h Stag e,
Kuvemp unag ar,
Mysuru-570023.
5. B.M.Natraju,
S/o Madde Gowda,
Age about 50 years,
R/at No.54, Kaveri Main Road ,
Gururaju Extension,
Mysuru-570011.
6. Mohammed Tahir Ali,
S/o Usman Ali,
Age about 51 years,
R/at No.363, Mahad evap ura Road ,
Bharath Nag ar, Mysuru-570019.
7. Mang alag auri,
W/o M Sheker,
Age about 41 years,
R/at No.1169 EWS 2 n d Stag e,
Rajiv Nagar, Devanuru Layout,
Mysuru-570019.
8. Venkatesha Murthy K.S.,
S/o K.V.Shridhar,
Age about 33 years,
R/at No.1771, 6 t h Main Road ,
'D' Block, 2 n d Stage,
Rajaji Nag ar, Beng aluru-560010.
9. M.Khalid,
S/o M D Hameed,
Age about 57 years,
R/at No.15, 5 t h Cross,
Nehru Nagar, Satag alli Extension,
M.P.Road, Mysuru.
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10. Jayant D'Souza,
S/o Com Bashist D'Souza,
Age about 41 years,
R/at No.104, Leela Bhavan,
Kaveri Nag ar, Bannimantap ,
Mysuru-570015.
11. Valmiki Ningaraju,
S/o Ling aya,
Aged about 51 years,
R/at No.4770,
Opposite Ashwath Katte,
Katyamaranahalli,
Mysuru-570019.
12. M.Mad hu,
S/o Mahedevappa,
Age about 29 years,
R/at No.3325/37, 2 n d Eedig a,
4 t h Cross, Anegundi Road ,
Mysuru-570015.
13. Lokesh Kumar G.,
S/o Guru Sidd ahai C.,
Age about 36 years,
R/at No.35, 7 t h Cross,
Near Library (Granthalaya),
Sub hash Nag ara,
Mysuru-570015.
14. G.B.Shivanna,
S/o Boraihya,
Age about 35 years,
R/at No.4314, 6 t h Cross,
Gandhi Nag ara,
Narasimharaja Mohalla,
Mysuru-570007.
...Respondents
(By Sri M.S.Shyamsundar, Advocate for R1)
Vid e order d ated 7.9.2018 summons
to R2 to R14 is disp ensed with)
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This Election Petition is filed und er Section 80A
and 81 of the Representation of the Peop le Act, 1951,
praying (i) to order for the counting of entire Voter
Verifiable Paper Audit Trail VVPAT Slip of 218
Narshimharaja Karnataka Legislative Assembly
Constituency in State General Election 2018 and etc.
This Election Petition having been heard &
reserved on 01.02.2022, coming on for
pronouncement this d ay, the Court pronounced the
following:
JUDGMENT
The petitioner contested from Narasimharaja Constituency in Mysuru city, to the elections held to the Karnataka Legislative Assembly on 12.05.2018. He was a candidate sponsored by Social Democratic Party of India.
2. The counting of the votes was held on 15.05.2018. The respondents 1 to 14 were the other candidates in the election fray. First respondent was declared elected; he won by a margin of 18127 votes. If the third respondent was the first runner up, the petitioner secured the :: 5 ::
third place and that the total number of votes secured by him was 33284.
3. His pleading is that, for the first time, the Election Commission introduced Voter Verifiable Paper Audit Trail (VVPAT) during the elections held in the year 2018 to the Karnataka Legislative Assembly. After the counting, the returning officer provided him the details of booth wise polling and he came to know at that time that he had received '0' votes in booth/part number 139A, even though he had confidential voters in that area. The Election Commission had given directions to count VVPAT at the time of counting if any objection was raised by any of the contesting candidates before pronouncement of results. Though the Election Commission issued instructions to preserve VVPAT slips, no particular rule was framed by the Election Commission as to the use of VVPAT slips and even the Supreme Court or any of the High Courts had not laid down :: 6 ::
any law in that regard. Noticing large scale anomalies in the counting process, the petitioner approached the District Election Officer and gave a representation to him on 15.05.2018 for counting the VVPAT slips.
4. The petitioner stated that when he collected some more information, he came to know that the first respondent had committed malpractice for securing highest number of votes.
In this regard he stated further that the first respondent's daughter possessed three voter ID cards bearing Nos.YID6034151, YID5908447 & YID6027601 and particulars of these three cards were printed at Sl.No.627, 628 and 769 relating to booth No.97. The first respondent was a sitting MLA and also a Minister when the elections were held. In one of the voter ID cards issued to first respondent's daughter, instead of mentioning the father's name, the card holder's mother's name i.e., Sameena Bai was printed, though in all the :: 7 ::
three cards the same residential address was printed. Therefore the petitioner doubted that without the connivance of the first respondent, it was not possible for issuing three voter ID cards to his daughter and this was just an instance indicating that he might have indulged in creation of many bogus voter ID cards for securing votes in the election.
5. The petitioner therefore stated that in the background of the above facts and circumstances, his interest was materially affected. Counting of VVPAT slips is the only remedy to verify the exact number of votes secured by each candidate and to find out about the bogus voting. Since his request for counting of VVPAT was turned down, he has sought the following reliefs in this election petition.
i) To order for counting of entire Voter Verifiable Paper Audit Trail slips of Narasimharaja Constituency;
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ii) To declare the election of first respondent to Karnataka Legislative Assembly from Narasimharaja Constituency as void; and
iii) Costs of the proceedings including any other reliefs.
6. Only the first respondent contested this petition and in his written statement, denying all the allegations made against him, he specifically contended that, the VVPAT slips would not weigh against the ballots, that the venture of the petitioner in asking for the counting of VVPAT slips would destroy the very sanctity of the ballots, that the Election Commission made it clear that the defects of the VVPAT machines would not disgrace or discount the correctness or worthiness of the electronic ballot machine, that the electronic ballot machine would work on algorithms and immediate storage of details by direct interface and its certainty and flawlessness was time-tested. He further stated that VVPAT was introduced to infuse :: 9 ::
confidence in the minds of the electorate about the purity of electronic ballot and to remove any suspicion concerning the same, but VVPAT was not to be taken as a certifying agent of electronic ballot machine.
7. The first respondent has denied that three voter ID cards were issued to his daughter and contended further that even if it was assumed that his daughter had three cards with her, it was not the case of the petitioner that his daughter voted three times using three cards. He stated that it was not the case of the petitioner that the voters' list itself was defective and therefore all the grounds that the petitioner took to assail the counting were baseless and hence election petition is to be dismissed.
8. The following three issues were raised based on the pleadings.
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1. Whether the petitioner proves that the 1st respondent indulged in malpractice during polling by encouraging bogus voting in his favour?
2. Has the petitioner made out grounds for counting of VVPAT slips?
3. Is the petitioner entitled to reliefs he has sought?
9. Four witnesses as PW1, PW2, PW3 and PW4 adduced evidence from the petitioner's side and relied upon Exs.P.1 to 12. From the first respondent's side two witnesses adduced evidence as RW1 and RW2.
10. I heard the arguments of Sri Mohammed Tahir, learned counsel for the petitioner. Sri M.S.Shyamsundar, learned counsel for the first respondent submitted his written arguments.
11. My findings to the issues are as below for the following:
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Issue No.1 : In the negative
Issue No.2 : In the negative
Issue No.3 : In the negative
REASONS
12. ISSUE No.1:- All the documents that are marked on behalf of petitioner may not be referred to here because most of them are not necessary for deciding this election petition. Those documents which are relevant are referred to here.
13. The main allegation made by the petitioner is that the first respondent encouraged bogus voting. He has stated so in the examination-in-chief. The reason for suspecting bogus voting is three voters' identity cards being issued to first respondent's daughter namely Parveen Sait. The petitioner who adduced evidence as PW1 produced three documents marked as Exs.P8 to P10 which are the computer print outs of voters' details pertaining to Ms. :: 12 ::
Parveen Sait. Indeed these three documents stand in the name of Ms. Parveen Sait and they bear different I.D card numbers. In Ex.P8, the I.D. card number is shown as YID6034151; Ex.P9 bears ID Card number - YID5908447; and Ex.P10, the number shown is YID6027601. Three I.D cards being issued to Ms. Parveen Sait is not disputed. The petitioner, as he has stated, has taken three cards in the name of Parveen Sait as an instance to suspect bogus voting by other voters also having possessed or having been issued more than one voter I.D card.
14. Sri Mohammed Tahir, learned counsel for the petitioner, argued that issuance of three voters I.D. cards to the daughter of first respondent is just an instance indicating large scale bogus voting. It was not necessary for the petitioner to have proved further as to how many other voters of that constituency voted more than one time using bogus I.D. cards. But, Sri :: 13 ::
M.S.Shyamsundar in his written argument has contended that the petitioner has just suspected bogus voting only because of three voter I.D. cards being issued to RW2 - i.e., Parveen Sait, and it is not his stand that RW2 voted thrice. The evidence of all the witnesses examined on behalf of the petitioner discloses casting vote by RW2 more than one time. In fact, RW2 herself has made it very clear in her evidence that after she became aware of three entries in the voters' list, she and her father took steps to get the two other entries cancelled. It is impossible for any person to vote multiple times. The petitioner had his agent in booth No. 97 where RW1 and RW2 cast their votes. Nobody took objection that RW2 came to booth No. 97 multiple times to cast vote. Therefore the ground that the petitioner has taken is baseless.
15. Now if evidence is examined, PW1 states that RW2 possessed three voter I.D cards and :: 14 ::
taking it as an instance, he has suspected several other voters to have possessed more than one voter I.D card and consequently the bogus voting. It is very important to note that he does not say that RW2 voted three times using three different I.D cards standing in her name. In the cross- examination, he has stated that his representative by name Tabrez Sait told him that the daughter of returned candidate i.e., RW1 cast her vote three times. But Tabrez Sait is not examined as a witness. He has also admitted that he did not make any complaint to the Election Officer seeing the name of the daughter of returned candidate being printed at three places in the voters list pertaining to booth or Part No. 97.
16. PW2 is one Amjad Khan, who worked as an agent of PW1 in the election. His affidavit is just a verbatim repetition of the affidavit of PW1 and he has admitted so in the cross-examination.
In the cross-examination, he has stated that he :: 15 ::
came to know from booth agents that they had verbally raised objection before the Presiding Officer about bogus voting. But he does not say specifically that RW2 voted thrice at the same booth. His answers are rather self destructive. Having said that his booth agents did not take objection seeing RW2 coming to the booth to vote three times, he has also stated that she voted at different booths. This answer cannot be believed for, if Ex.P8 and Ex.P10 pertain to booth No.97, Ex.P9 pertains to booth No.96. That means, if according to information given to PW2 by the booth agents was correct, RW2 should have voted two times in booth No.97, then why the booth agent appointed by RW2 did not take objection, is one important aspect to which there is no answer and that the answer of PW2 in the cross- examination that RW2 voted at different booths, meaning thereby at three different booths, is just unbelievable.
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17. PW3 - Tabrez Sait is a voter in Narasimharaja Constituency; he has stated in para 3 of his examination-in-chief affidavit that on the polling day i.e., 12.5.2018, he saw the daughter of the returned candidate more than two times at the polling booth. From this assertion in the affidavit, the meaning that can be gathered is that he might have seen RW2 at least three times. But the next sentence is very important, he has stated that he saw her for the first time when he personally went for voting and for the second time when he went to polling station with his wife. That means, he saw her only two times, and not more than two times. Then his further statement in the affidavit is that as he came to know later on that daughter of the returned candidate had possessed three voter I.D cards and this was not possible without the involvement of her father who was a sitting MLA and minister at that time. One answer in his cross-examination is enough to assess the :: 17 ::
falsehood in his affidavit. His clear answer is that he and his wife went together to the polling booth to cast their votes. If his answer is considered, it can be very well inferred that what was stated in his affidavit that he saw RW.2 more than two times is nothing but false.
18. The petitioner summoned the Presiding Officer of booth 97 to give evidence. He was examined as PW4. At the instance of the petitioner, the Register of Voters was also summoned from the Office of District Election Officer. Ex.P.12 is the Register of Voters. The main purpose of examining PW.4 was to mark an entry as p er Ex.P.12(b) at Sl.No.70 in Ex.P.12. Seeing Ex.P.12 (b), PW.4 answer that ID card number written at Sl.No.70 did not tally with ID card number mentioned in Ex.P.8. If these entries are examined, what appears is, at Sl.No.70, the serial number of the elector in electoral roll is written as 628 and the identification document produced by :: 18 ::
the voter contained the number YID5908447. Therefore Ex.P.8 and Ex.P.12(b) are to be compared. In Ex.P.8, the ID card number is mentioned as YID6034151, and of course this number does not tally with the number ID8447 mentioned in Ex.P.12(b). But the number ID8447 tallies with the last four digits of the ID card number mentioned in Ex.P.9 which pertains to booth No.96. Yes, the petitioner has pointed out a discrepancy, but whether it is very material to find preponderance in the evidence of the petitioner, is the question. To answer this question, the cross- examination of PW4 is to be considered.
19. It is elicited from PW4 in his cross-
examination that a voter will be permitted to vote only if details found in ID card tally with the details in the voters' list, that in case any agent of any candidate present in the booth takes objection to the identity of a voter, such voter will not be permitted to vote, that the agent of the petitioner :: 19 ::
present in the pooling booth did not object to the identity of the voter who had signed at Sl.No.70 of Ex.P.12, that the petitioner did not take objection regarding bogus voting in both No. 97, and that the petitioner also did not complain to the election officer about bogus voting in booth No.97. He has also admitted a suggestion that Ex.P.12 does not indicate that the person who has signed at Sl.No.70 voted more than one time at booth No.97. These answers clearly rule out possibility of RW2 having cast her vote more than one time. Moreover, if according to the petitioner, RW2 used all the three ID cards for casting vote three times, he should have pointed out from Ex.P.12 that signature of RW2 is found at more than one place, or he could have elicited from PW.4 that RW.2 has signed at more than one place. No such evidence is forthcoming.
20. If the evidence tendered by RW1 and RW2 is seen, it can be said that RW1 has not been :: 20 ::
discredited in the cross-examination at all. In fact he has admitted that there were complaints regarding bogus entries in the voters' list and that he was one of the complainants. RW2 in her affidavit has denied to have voted multiple times. In the cross-examination, though, to one specific question, she answered that she did not have voter identity card, over all analysis of her answers in the cross-examination does not indicate that the petitioner's counsel was able to elicit from her an answer favourable to the petitioner's case. She has stated that she carried a voter's slip and her Aadhar Card when she went to polling booth. Though she has answered that she went to polling booth two times, this answer does not indicate that she voted two times; it only shows that she went near the gate of the polling booth when she went there for second time.
21. Therefore evaluation of entire evidence on issue No.1 shows that the petitioner has not :: 21 ::
been able to prove bogus voting. Even his attempt to make use of Ex.P.8 to P.10 in order to establish possibility of bogus voting has failed. Therefore issue no.1 is answered in negative.
22. ISSUE No.2:- On this issue, Sri. Mohammed Tahir argued that there was no direction from the Election Commission as to how to make use of VVPAT if any objection was raised during counting of ballots. He submitted the petitioner had large number of confident voters in the areas attached to booth No. 139A, but he got '0' votes. Therefore VVPAT are to be counted.
23. Sri. M.S. Shyamsundar has refuted this argument. He submitted that the plea of the petitioner is based on suspicion about recording of ballots in electronic voting machine, his plea in this regard is to be rejected out rightly. The petitioner has not examined any credible witness to substantiate his claim that several of his party :: 22 ::
workers voted in his favour. He has also contended that VVPAT machine which is nothing but a glorified form of electronic printer, will not disgrace or discount the correctness or worthiness of the electronic ballot.
24. If the evidence of PW1 is assessed, what is found is that he just entertained doubt regarding efficacy of electronic voting machine because he did not secure even a single vote in the other booths. His clear admission is that during voting hours, none of his confident voters complained to him about non generation of VVPAT slips or their mismatch. PW2 has also given evidence that the booth agents took objection verbally with regard to VVPAT machine. If this answer of PW2 is to be believed, at least one booth agent should have been examined. The entire evidence of PW1 and PW2 cannot be believed.
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25. Though PW1 has produced Ex.P.7, a letter written by him to the Deputy Commissioner seeking counting of VVPAT, in the revised instructions issued by the Election Commission of India, as per Ex.P.4, instruction No. 3.1 deals with the circumstances when VVPAT slips can be permitted to be counted. Instruction No.3.1 reads as below:
"3.1. Application for VVPAT Paper Slips Counting:
After announcement of result
sheet entries, any candidate, their
election agent or their counting
agents may apply in writing to the RO to count the printed VVPAT paper slips in any or all polling stations. If such application is made, the RO shall pass a speaking order on whether the VVPAT paper slips should be counted. If the RO decides to allow the counting of the VVPAT paper slips to any or all polling stations, such decision of the RO :: 24 ::
must be recorded in writing along with the reasons thereof. The RO shall give due consideration to the following:
• Whether the total number of votes polled in that polling station is greater or lesser than the margin of votes between winning candidate and candidate making the application • Whether EVM had a problem and was replaced that polling station during poll • Whether there was any complaint about VVPAT not printing or complaints by any voter under Rule 49MA in that polling station during the poll."
26. The allegation made by the petitioner does not fall within any of the above circumstances. Moreover recounting cannot be granted for a mere asking. It is held by the Supreme Court in R.NARAYANAN VS. SEMMALAI AND OTHERS [1980(2) SCC 537] that:
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"The relief of recounting cannot be accepted merely on the possibility of there being an error. The allegations in the election petition must not only be clearly made out but should also be proved by cogent evidence.
It is well settled that a court would be justified in ordering a recount of the ballot papers only where (1) the election petition
contains an adequate statement of all the material facts on which the allegations of irregularity or of illegality in counting are founded, (2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting and (3) the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties."
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27. As has been observed above, the petitioner has expressed mere suspicion as he secured '0' vote in booth No.139A. Suspicion does not take the place of evidence. For all these reasons issue No.2 is answered in negative.
28. ISSUE No.3:- The discussion on issues
(i) and (ii) takes me to conclude that the petitioner is not entitled to the reliefs claimed by him and therefore the following:-
ORDER Election petition is dismissed with costs.
Sd/-
JUDGE KMV/CKL :: 27 ::
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:
PW-1 : Abdul Majeed PW-2 : Amjad Khan PW-3 : Tabrez Sait PW-4 : P.Mahadevaiah
LIST OF EXHIBITS MARKED ON BEHALF OF THE PETITIONER:
EX.P.1 : Voters' List EX.P.2 : Press Note issued by Election Commission of India EX.P.3 : Extract of Declaration of result EX.P.4 : Revised instructions on use of Electronic Voting Machine EX.P.5 : Final list of contesting candidates EX.P.6 : Certified extract of final result sheet EX.P.7 : Representation given by petitioner EX.P.7(a) : Translation copy of Ex.P.7 EX.P.8 to 10: Voter ID Details of Smt. Parveen Sait EX.P.11 : Affidavit filed by Tanvir Sait EX.P.12 : Register pertaining to Booth No.97 EX.P.12(a): First page of Ex.P.12 EX.P.12(b): Portion of entry in Ex.P.12 LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENT NO.1:
RW-1 : Tanveer Sait
RW-2 : Parveen Sait
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LIST OF EXHIBITS MARKED ON BEHALF OF RESPONDENT NO.1:
- N I L -
Sd/-
JUDGE Kmv/ckl