Kerala High Court
K.P.Mohammed Musthafa @ ... vs Najeeb Kanthapuram on 15 March, 2024
El.Pet. No.4/2021 1/4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Friday, the 15th day of March 2024 / 25th Phalguna, 1945
IA.NO.4/2024 IN EL.PET. NO. 4 OF 2021
APPLICANT/ELECTION PETITIONER:
K.P.MOHAMMED MUSTHAFA @ K.P.M.MUSTHAFA, AGED 53 YEARS
,S/O.MOHAMMEDALI HAJI, RESIDING AT 15/306, KIZHAKKEPALLIKAL HOUSE,
DOWNHILL P.O., PIN-676 519, MALAPPURAM, MALAPPURAM DISTRICT.
RESPONDENTS/RESPONDENTS:
1. MR.NAJEEB KANTHAPURAM, PANDIKADAVIL HOUSE, KANTHAPURAM, UNNIKULAM
P.O., KOZHIKODE DISTRICT, PIN-673 574.
2. SMT.SUCHITHRA, MATTADA HOUSE, KAVANOOR P.O., MALAPPURAM DISTRICT,
PIN-673 639.
3. ADV.ABDUL AFSAL P.T., CHERIYIL HOUSE, VETTATHUR P.O.,
PERINTHALMANNA, MALAPPURAM DISTRICT, PIN-679 326.
4. SHRI.NAJEEB KUTTEERI, KUTTEERI PULIKKAMATH HOUSE, KANJAMANNA,
VALLIKAPATTA P.O., MALAPPURAM DISTRICT, PIN-679 324.
5. SHRI.MUSTHAFA, S/O.MOHAMMED, KARIKKUMPURATH HOUSE, ALIPARAMBA,
THOOTHA P.O., MALAPPURAM DISTRICT, PIN-679 357.
6. SHRI.MUSTHAFA.P.K., S/O.SAIDALAVI, POOTHANKODAN HOUSE, ALIPARAMBA
P.O., MALAPPURAM DISTRICT, PIN-679 357.
7. SHRI.MUHAMMED MUSTHAFA.K.P., MADAMPARA HOUSE, ARAKKUPARAMBA P.O.,
MALAPPURAM DISTRICT, PIN-678 554.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to relieve the
Applicant/Petitioner with the mandatory requirement to produce certificate
under Section 65 B of the Indian Evidence Act, 1872, for admitting the
electronic records summoned and produced in this case, especially with
respect to the video footages of polling/casting of votes by Absentee
Voters in the category of AVSC, AVPD, and AVCO contained in the CDs, Hard
Disk and Pendrives already produced, in the interest of justice.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of SRI. S.SREEKUMAR , SENIOR ADVOCATE along with SRI. P.MARTIN JOSE,
SRI.P.PRIJITH, SRI.THOMAS P.KURUVILLA,SRI. MANJUNATH MENON,SRI. AJAY BEN
JOSE,SRI.SACHIN JACOB AMBAT, SRI.R.GITHESH,SRI.HARIKRISHNAN S., SMT.ANNA
LINDA V.J. & SMT. A.JANI, Advocates for the Applicant, SRI.T.KRISHNANUNNI
, SENIOR ADVOCATE along with SRI. SMT. MEENA.A.,SRI. VINOD
RAVINDRANATH,SMT.M.R.MINI,SRI. ASHWIN SATHYANATH, SRI. K.C.KIRAN,
SRI.M.DEVESH & SRI. ANISH ANTONY ANATHAZHATH, Advocates for the respondent
1, SRI.M.MUHAMMED SHAFI, Advocate for the respondents 5 & 7, SRI.DEEPU
LAL MOHAN, Standing Counsel for Election Commission of India (Not a
party), SRI. K.N.ABHILASH , Advocate Commissioner, the court passed the
following:
El.Pet. No.4/2021 2/4
ORDER
The Managing Director, CITSA Technologies Pvt. Ltd. has filed an affidavit through advocate P.R.Jayakrishnan expressing his inability to produce the certification required under Section 65B of the Indian Evidence Act. According to him he is unable to trace the videographers, who were engaged by him on the basis of the contract he had entered into with NSIC. He has also stated that he had made all earnest efforts to trace out the details of the videographers and his enquiries revealed that many of them have relocated their professional activity to other places and some of them are abroad. Hence he has expressed his inability to produce the certification contemplated under Section 65B.
2. Sri.S.Sreekumar, the learned Senior Counsel appearing for the election petitioner draws my attention to I.A.No.4/2024 praying that the petitioner be relieved of the mandatory requirement of producing the certification under Section 65B as he had taken all posssible steps to produce the same and it has now become impossible for him to produce the same. It is also submitted that a party cannot be directed to do the impossible. In support of this argument, reference is made to the dictum in Arjun Pandit Rao Khotkar v. Kailash Kushanrao Gorantyal, 2020 (4) KHC 101 (SC).
3. The request for exempting the petitioner from producing the 65B certification is strongly objected to by Sri.T.Krishnan Unni, the learned Senior counsel appearing for the first respondent. The learned senior counsel submits that the election petitioner has produced a list of the videographers who are stated to have videographed the voting process, El.Pet. No.4/2021 3/4 whose details have been produced along with the election petition itself. Therefore, they can take steps to produce the said videographers by taking out summons in the case and produce them as witnesses before this court. Hence it cannot be contended that it is impossible to produce the necessary certification or that they had taken all possible steps to get the certification.
4. Heard both sides.
5. Initially this Court had directed the District Election Officer/District Collector, Malappuram to either produce the original CDs or the necessary 65B certification. The learned standing counsel appearing for the District Election Officer/District Collector filed an affidavit stating that they had entered into an agreement with the Chief Manager, National Small Industries Corporation Ltd. (NSIC) and that it was the latter who had engaged the videographers and therefore it was not possible for the former to produce the necessary certification. Hence summons was issued to the Chief Manager, NSIC Ltd. for directing the videographers to produce the necessary certification. The Chief Manager, NSIC Ltd. appeared before this Court and submitted that they had given the work on a contract basis to CITSA Technologies Pvt. Ltd. and that it was the latter who had engaged the videographers and videographed the voting process. Pursuant to the same, the Managing Director, CITSA Technologies Pvt. Ltd. was summoned to appear before the Court and to produce the necessary certification. However, today an affidavit has been filed by the MD, CITSA stating that in spite of earnest efforts he is unable to trace out the videographers or produce them before the Court or get the necessary certification. In such circumstances, I find that the election petitioner has taken all possible efforts and steps to get the necessary certification and produce them before the Court. In the light of the dictum in Arjun Pandit Rao Khotkar (Supra), the request of the election petitioner in I.A.No.4/2024 is allowed.
Issue summons to PW14 and witness no.28.
El.Pet. No.4/2021 4/4W. batta to be paid directly by the petitioner to the witnesses. Memo of compliance to be filed. Summons to be served directly on the witnesses by the petitioner.
Post on 22/03/2024.
Sd/- C.S. SUDHA, JUDGE
15-03-2024 /True Copy/ Assistant Registrar