Jharkhand High Court
Jaleshwar Mahato vs Dulu Mahato & Others on 11 April, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Election Petition No.01 of 2020
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Jaleshwar Mahato .... .... .... Petitioner
Versus
Dulu Mahato & Others .... .... .... Respondents
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With
Election Petition No.04 of 2020
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Md. Nizamuddin .... .... .... Petitioner
Versus
Dulu Mahato & Another .... .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Petitioners : Mr. Arvind Kr. Lall, Advocate For the Resp. No.1 : Mr. Bibhas Sinha, Advocate Mr. Ajay Kr. Sah, Advocate For the Resp. No.15 : Mr. Dr. Ashok Kr. Singh, Advocate (For Returning Officer)
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Order No.06 Dated- 11/04/2022 I.A. No.161 of 2021 in Election Petition No.01 of 2020 Heard the parties.
2. Learned counsel for the petitioner submits that this interlocutory application has been filed with a prayer to issue necessary direction to respondent No.15 for calling for the documents cited in paragraph-1 of the instant interlocutory application under serial No. (i) to (x).
3. Learned counsel for the petitioner submits that the respondent No.15 be directed to produce all sets of nomination papers of the respondent No.1 namely Dulu Mahato filed for 43, Baghmara Assembly Constituency Election, held in the month of November/ December, 2019 for Jharkhand State Legislative Assembly as mentioned in the said serial No.(i);.
4. It is then submitted that the original documents of the following:
(a) as mentioned in serial No. (vi) Form 17-C as well as Presiding Officer diaries of Booth Numbers 181, 227, 234, 253, 266, 290, 305, 334, 724, 778 of 43, Baghmara Assembly Constituency Election, held in the month of November/ December, 2019 for Jharkhand State Legislative Assembly;
(b) as mentioned in serial No. (vii) counting sheets of the entire counting of 43, Baghmara Assembly Constituency Election result on 23.12.2019 of 43, Baghmara Assembly Constituency Election, held in the month of November/ December, 2019 for Jharkhand State Legislative Assembly; and
(c) as mentioned in serial No. (viii) attendance register of voters of the booths of Booth Numbers 181, 227, 234, 253, 266, 290, 305, 334, 724, 778 of 43, Baghmara Assembly Constituency Election, held in the month of November/ December, 2019 for Jharkhand State Legislative Assembly needs to be proved by the election petitioner to substantiate his case, hence it is submitted that the said original documents being called for from the respondent no. 15.
5. So far as the prayer for calling of these documents is concerned, the contesting respondents have no serious objection.
6. Considering the facts and circumstances of the case as well as the necessity of those original documents being proved in this case, the respondent No.15 being the Returning Officer, 43, Baghmara Assembly Constituency is directed to produce the documents as mentioned in serial Nos. (i), (vi), (vii) &
(viii) of paragraph-1 of the instant interlocutory application before the Registrar General of this Court within four weeks from the date of this order and in case such documents are produced, the Registrar General of this Court is directed to keep the same in a safe custody. Further keeping in view the lackadaisical conduct of the respondent No.15 being the Returning Officer, 43, Baghmara Assembly Constituency, in not filing the written statement within the stipulated time and hence has been debarred from filing a written statement in this case, the Registrar General of this court is directed to communicate to the respondent No.15 being the Returning Officer, 43, Baghmara Assembly Constituency to produce those documents forthwith before him within the stipulated time positively, failing which, the respondent No.15 being the Returning Officer, 43, Baghmara Assembly Constituency is directed to remain physically present before this court on the next date of listing of this case.
7. So far as the prayer for calling of the entire order-sheet of the Returning Officer for the election of the said 43, Baghmara Assembly Constituency from the date of the notification of the election to till the date of final result i.e. on 23.12.2019 is concerned, learned counsel for the petitioner could not produce any authentic document nor could cite any rule or law under which the respondent No.15 being the Returning Officer, 43, Baghmara Assembly Constituency had to maintain an order-sheet and in the absence of the same, as there is no material in the record to suggest that such a document in fact exists, this Court is not inclined to allow the prayer of the petitioner to call for the entire order-sheet of the Returning Officer for the election of the said 43, Baghmara Assembly Constituency from the date of the notification of the election till the date of final result i.e. on 23.12.2019. Accordingly, the prayer to call the entire order-sheet of the Returning Officer for the election of the said 43, Baghmara Assembly Constituency from the date of the notification of the election till the date of final result i.e. on 23.12.2019 is rejected.
8. So far as the documents mentioned in serial Nos. (iii) and (iv) are concerned, the same are the Judicial case records, the certified copy of which can be obtained if the petitioner so desires, such records has been sought to be called for only for the purpose of showing the pendency of cases against the respondent no.1. No specific part of the record needs to be proved in this case has been mentioned. There is no material to suggest that authenticity of any document of such record is questioned. Hence, this Court do not find any justifiable reason to call for the said entire record of case from the judicial courts. Accordingly, the prayer for calling of the documents as mentioned in serial Nos. (iii) and (iv) of para-1 of the instant interlocutory application is rejected.
9. So far as the documents sought to be called for as mentioned at serial No.
(v) is concerned, the said document is the tour program of Union Home Minister of India namely Shri Amit Shah who allegedly visited the native village of respondent No.1 on 14.12.2019. The learned counsel for the petitioner submits that the petitioner intends to prove the said document to establish that the said dignitary visited the places as per the schedule mentioned in such program. It is pertinent to mention here that it is the specific case of the petitioner that the Union Home Minister of India Shri Amit Shah held a specific meeting in the premises of a temple in violation of the law which fact is denied by the respondent No.1. The fact remains that the tour program of a dignitary is not the proof of his visiting any place, as it is common knowledge that such tour programs can be cancelled and can also be deviated from. If the petitioner so desires he may lead evidence regarding this fact during the evidence to be put- forth by him in connection with this case. Hence, this Court is of the considered view that there is no justifiable reason to call for the documents mentioned in serial No. (v) being the tour program of the Union Home Minister of India namely Shri Amit Shah. Hence, this prayer is also rejected.
10. So far as the prayer to call for the documents mentioned in serial No. (ix) is concerned, the petitioner fails to satisfy this Court by citing any rule, circular, notification or law that a strong room report regarding submission of the EVM Machines after re-polling of 43, Baghmara Assembly Constituency Election held in the month of November/ December, 2019 for Jharkhand State Legislative Assembly Election has in fact been prepared nor any other authentic material could be produced by the petitioner to show that such a document is in existence. In the absence of the same, this Court is not inclined to call for the said report when there is no material before this Court to suggest that such a report exists. Accordingly, this prayer is also rejected.
11. So far as the prayer to call for the documents mentioned in serial No. (x) being the letter of complaint dated 27.12.2019 sent by the Election petitioner addressed to the Election Commission of India, New Delhi with a copy to the Chief Electoral Officer, Jharkhand and the result of the steps taken in the said complaint is concerned, it is pertinent to mention here that the petitioner could not produce any document to show that in fact he has sent any such letter to the Election Commission of India or the Chief Electoral Officer, Jharkhand nor the petitioner could satisfy as to how the same is relevant for this case, hence, this Court is not inclined to call for the documents mentioned in serial No. (x) being the letter of complaint dated 27.12.2019 sent by the Election petitioner addressed to the Election Commission of India, New Delhi with a copy to the Chief Electoral Officer, Jharkhand and the result of the steps taken in the said complaint. Accordingly, the prayer to call the documents mentioned in serial No. (x) is rejected.
12. Let a copy of this order for supply to the Registrar General of this court for compliance of this order as mentioned in paragraph 6.
13. This interlocutory application stands disposed of accordingly.
(Anil Kumar Choudhary, J.) I.A. No.643 of 2021 in Election Petition No.01 of 2020 Learned counsel for the petitioner submits that he does not press the instant interlocutory application at this stage.
Accordingly, the instant interlocutory application stands rejected as not pressed.
(Anil Kumar Choudhary, J.) I.A. No.2099 of 2021 in Election Petition No.04 of 2020 Learned counsel for the petitioner submits that this interlocutory application has been filed with a prayer to issue necessary direction to respondent No.2 for calling for the documents cited out in paragraph-1 of the instant interlocutory application under serial No. (i) to (x).
2. Perusal of the record reveals that the documents sought for as mentioned at serial No.(i) is the Election Program of 43, Baghmara Assembly Constituency election held in the year 2019 and the documents sought for as mentioned at serial No.(iii) is the voter list of Booth No.266 D.A.V. High School, Madhya Bhag, Katras as used by the concerned Presiding Officer and Polling Officers as on the date of polling.
3. Learned counsel for the contesting respondents have no serious objection for production of the documents by the respondent No.2 as mentioned at serial Nos. (i) and (iii) of paragraph-1 of the instant interlocutory application.
4. Considering the facts and circumstances of the case as well as the necessity of those original documents being proved in this case, the respondent No.2 being the Returning Officer, 43, Baghmara Assembly Constituency is directed to produce the documents as mentioned in serial Nos. (i) and (iii) of paragraph-1 of the instant interlocutory application before the Registrar General of this Court within four weeks from the date of this order and in case such documents are produced, the Registrar General of this Court is directed to keep the same in a safe custody. Further keeping in view the lackadaisical conduct of the respondent No.2 being the Returning Officer, 43, Baghmara Assembly Constituency, in not filing the written statement within the stipulated time and hence has been debarred from filing a written statement in this case, the Registrar General of this court is directed to communicate to the respondent No.2 being the Returning Officer, 43, Baghmara Assembly Constituency to produce those documents forthwith before him within the stipulated time positively, failing which, the respondent No.2 being the Returning Officer, 43, Baghmara Assembly Constituency is directed to remain physically present before this court on the next date of listing of this case.
5. So far as the documents mentioned at serial No. (ii) being the all sets of nomination papers of the respondent No.1 namely Dulu Mahato filed for 43, Baghmara Assembly Constituency Election, held in the month of November/ December, 2019 for Jharkhand State Legislative Assembly;
serial No. (iv) being Form 17-C as well as Presiding Officer's diary of Booth Number 266, DAV High School, Madhya Bhag, Katras of 43, Baghmara Assembly Constituency Election, held in the month of November/ December, 2019 for Jharkhand State Legislative Assembly;
serial No.(v) being the Counting sheets of entire counting of 43, Baghmara Assembly Constituency Election result on 23.12.2019 of 43, Baghmara Assembly Constituency Election, held in the month of November/ December, 2019 for Jharkhand State Legislative Assembly Election are concerned, the respondent No.2 of this case who is the respondent No.15 of Election Petition No.01 of 2020 has already been directed to produce the same vide order dated 11.04.2022 passed in I.A. No.161 of 2021. Hence, there is no need to pass separate order in this case as far as those documents are concerned.
6. So far as the prayer to call for the documents mentioned in serial No. (vi) is concerned, the petitioner fails to satisfy this Court by citing any rule, circular, notification or law that a strong room report regarding submission of the EVM Machines after re-polling of 43, Baghmara Assembly Constituency Election held in the month of November/ December, 2019 for Jharkhand State Legislative Assembly Election has in fact been prepared nor any other authentic material could be produced by the petitioner to show that such a document is in existence. In the absence of the same, this Court is not inclined to call for the said report when there is no material before this Court to suggest that such a report exists. Accordingly, this prayer is also rejected.
7. So far as the prayer to call for the documents mentioned in serial No. (vii) regarding EVM Machine printing report of Booth Number 266 is concerned, learned counsel for the petitioner fails to satisfy this Court by citing any rule, circular, notification or law that EVM Machine printing report of Booth Number 266 has in fact been prepared nor any other authentic material could be produced by the petitioner to show that such a document is in existence. In the absence of the same, this Court is not inclined to call for the EVM Machine printing report of Booth Number 266. Accordingly, the prayer to call for the same is rejected.
8. So far as the prayer to call for the documents mentioned in serial No.
(viii) is concerned, learned counsel for the petitioner submits that the same is regarding the EVM Machines used and unused in Booth No.266 and the learned counsel for the petitioner submits that the same has wrongly been mentioned and the petitioner does not press the prayer for calling for the machines as mentioned in serial No. (viii). Accordingly, the prayer for calling of the same stands rejected as not pressed.
9. So far as the prayer to call for the documents mentioned in serial No. (ix) regarding check-list of dispatch of EVM Machines to different booths for the purpose of polling is concerned, the learned counsel for the petitioner fails satisfy this Court by citing any rule, circular, notification or law that check-list of dispatch of EVM Machines to different booths for the purpose of polling has in fact been prepared nor any other authentic material could be produced by the petitioner to show that such a document is in existence. In the absence of the same, this Court is not inclined to call for the check-list of dispatch of EVM Machines to different booths for the purpose of polling. Accordingly, the prayer to call for the same is rejected.
10. So far as the prayer to call for the documents mentioned in serial No. (x) regarding office copy of show-cause issued after the declaration of result of election by District Election Officer, Dhanbad to the Presiding Officer of Booth No.266, DAV High School, Katras Madhya Bhag and the office copy of the show-cause submitted by the said Presiding Officer and the decision taken regarding the said show-cause is concerned, learned counsel for the petitioner fails to produce any document that in fact any such show-cause was ever issued and the description of the same is also vague as no date or number of the concerned letter by which the alleged show-cause was issued, has been mentioned. Hence, in the absence of such saint material to identify the document sought to be called for; this Court is not inclined to call for the alleged office copy of the show-cause. Accordingly, the prayer to call for the same is rejected.
11. This interlocutory application is disposed of accordingly.
(Anil Kumar Choudhary, J.) Election Petition No.01 of 2020 with Election Petition No.04 of 2020 The issues are settled and the same are kept in separate sheets in the case record.
List this case for the evidence after six weeks.
The petitioners in both these cases are directed to submit the list of witnesses after serving the copies of the same upon the learned counsels for the respondents appearing in the record within two weeks from the date of this order failing which, the petitioner will be debarred from examining any witnesses.
(Anil Kumar Choudhary, J.) Animesh/ IN THE HIGH COURT OF JHARKHAND AT RANCHI Election Petition No.01 of 2020
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Jaleshwar Mahato .... .... .... Petitioner
Versus
Dulu Mahato & Others .... .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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Issues
(i) Whether the election petition as framed and filed is maintainable?
(ii) Whether the respondent No.1 was involved in corrupt practices in
connivance with the Returning Officer-cum-District Election Officer?
(iii) Whether the Rule 94 A of the Conduct of Election Rules 1961 read with Section 83 and 99 of the Representation of the People Act, 1951 has not been complied with in the election of the respondent No.1?
(iv) Whether the respondent No.1 was qualified to contest the election in question in view to his conviction and sentence of a total period of 72 months vide judgment passed by S.D.J.M., Dhanbad in connection with Katras P.S. Case No.120 of 2013 corresponding to G.R. No.2023 of 2013 dated 09.10.2019?
(v) Whether the nomination of the respondent No.1 was properly accepted by the Returning Officer-cum-District Election Officer?
(vi) Whether the respondent No.1 has submitted his nomination before the Returning Officer in accordance with law?
(vii) Whether the affidavit in form 26 and Annexure of nomination has not been signed as per law?
(viii) Whether the District Election Officer along with the Returning Officer of 43, Baghmara Assembly Constituency discussed the election strategy on 14.12.2019 with the Home Minister Shri Amit Shah and was given the instruction by Mr. Shah to do everything to elect the respondent No.1?
(ix) Whether the Union Home Minister Shri Amit Shah in violation of the Code of Conduct for election campaigned for the respondent No.1 in a temple premises?
(x) Whether it is expedient to have a re-poll in respect of Booth Nos.181, 253, 266, 290, 305 and 334 where discrimination was found by the figures mentioned by the Presiding Officer of the concerned booths?
(xi) Whether the petitioner got highest votes and ought to have been declared elected instead of the respondent No.1?
(xii) Whether any irregularity was done by the Returning Officer in counting of votes in order to get the respondent No.1 elected?
(xiii) Whether the votes mentioned in Form 17C is not tallying with the figures of several booths vide Presiding Officer diaries as well as voting figures displayed in the EVM machines?
(xiv) Whether in Form 17C in respect of Booth No.181, 227, 234, 253, 290, the polled votes have been respectively shown as Zero, Zero, NIL, Zero, Zero but after counting the same were respectively found as 709, 569, 694, 596, 309?
(xv) Whether in respect of booth No.305 in Form 17C the polled votes has been shown as 788 but after counting through EVM a total of 678 votes were found and whether in booth No.305 there is an anomaly in the number of votes polled as mentioned in Form 17C?
(xvi) Whether the Returning Officer has rightly refused to allow the request of the petitioner for recounting of the votes prior to declaration of the result?
(xvii) Whether when a person is sentenced by a court with a direction that all the sentences shall run concurrently then the longest of several terms of the sentence of imprisonment or the sum total of the all the individual sentences for each of the offences for which the person concerned has been sentenced, has to be taken into consideration; for the purpose of deciding whether the sentence of imprisonment is for less than two years?
(xviii) Whether the longest term of the sentence of the respondent No.1 is 18 months?
(xix) Whether the respondent No.1 be debarred from contesting election for the next six years?
(xx) To what other relief or reliefs the petitioner is entitled to?
(Anil Kumar Choudhary, J.) Animesh/ Dated- 11.04.2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI Election Petition No.04 of 2020
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Md. Nizamuddin .... .... .... Petitioner
Versus
Dulu Mahato & Another .... .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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Issues
(i) Whether the election petition as framed and filed is maintainable?
(ii) Whether the respondent No.1 was involved in corrupt practices in
connivance with the Returning Officer-cum-District Election Officer?
(iii) Whether the Rule 94 A of the Conduct of Election Rules 1961 read with Section 83 and 99 of the Representation of the People Act, 1951 has not been complied with in the election of the respondent No.1?
(iv) Whether the Returning Officer in connivance with the respondent No.1 committed large scale of malpractice during the course of polling as well as counting without verifying the figures of votes in Form 17C as mentioned by the Presiding Officer of Booth Number 266 D.A.V. High School, Katras, Madhya Bhag?
(v) Whether in Booth Number 266 D.A.V. High School, Katras, Madhya Bhag, the figure of votes has been shown by the Presiding Officer to 675 but in the display system of both the EVM it was reflected as 724 though the actual votes polled was 976?
(vi) Whether the District Election Officer, Dhanbad issued a show- cause notice to the Presiding Officer and his team of Booth Number 266 D.A.V. High School, Katras, Madhya Bhag as to why the procedure in polling has not been followed?
(vii) Whether the name of the petitioner has been registered as a voter of 43, Baghmara Constituency vide part No.266 and serial No.430?
(viii) Whether the petitioner had an ulterior motive to humiliate or harass the respondent No.1?
(ix) Whether at the stage of scrutiny either any candidate or any agent has raised any objection regarding the defective nomination papers of the respondent No.1?
(x) Whether as per the guidelines of the Election Commission of India during round-wise counting of EVMs, if there is any case in which the total votes polled in the CU does not match the record of votes in Form 17C, it is an indication that the Close Result Clear (CRC) protocol after mock poll was not correctly done in respect of this polling during the actual poll and in all such cases, the CU shall be kept aside and these polling stations will not be taken up for counting during the regular round-wise counting of control units and the table allocated to such polling stations shall be kept vacant during that particular round and in such cases if the winning margin is more than the total votes polled in all such polling stations, it will not be taken up for counting and the result will be declared without these polling stations?.
(xi) Whether the winning margin of the respondent No.1 being 824 is more than the total number of votes polled at the Booth Number 266 D.A.V. High School, Katras, Madhya Bhag?
(xii) Whether the petitioner was materially affected by the outcome of the election of the respondent No.1?
(xiii) To what other relief or reliefs the petitioner is entitled to?
(Anil Kumar Choudhary, J.) Animesh/ Dated- 11.04.2022