Patna High Court
Shahabuddin And Etc. vs State Of Bihar And Ors. on 27 October, 2005
Equivalent citations: AIR2006PAT77, AIR 2006 PATNA 77, 2006 (4) ALL LJ NOC 706, 2006 (2) AIR JHAR R 687, (2006) 1 PAT LJR 91
Author: Aftab Alam
Bench: Aftab Alam
ORDER Aftab Alam, J.
1. These two writ petitions arise from two suits (filed under Section 140 of the Bihar Panchayat Raj Act, 1993) in which the elections of Mukhiyas of two Gram Panchayats, namely, Rampur Parihas and Basantpur come under challenge. Though the two cases relate to two separate Gram Panchayats (apparently adjacent to each other), they are closely inter-connected in a certain way.
2. Shahabuddin, the petitioner In CWJC No. 14322 of 2002 was declared elected as Mukhiya of Basantpur Gram Panchayat on 15-5-2001. His election was challenged by the nearest defeated candidate Awdhesh Kumar Gupta (respondent No. 5) by filing a case under Section 140 of the Act registered as Misc. No. 40 of 2002 before the Munsif Sadar-cum-Election Tribunal, Purnea. Similarly Asif, the petitioner in CWJC No. 6491 of 2003 was declared elected as Mukhiya of Rampur Parihas Gram Panchayat on 15-5-2001. His election too was challenged by another candidate in the election Deo Narain Rai (respondent No. 5). The case filed by respondent No. 5 was registered as Misc. No. 7 of 2003 before the Munsif Sadar-cum-Election Tribunal, Purnea.
3. One of the grounds on which the two elections were challenged was common in both the cases. It was stated that a set of sixty four people had cast their votes in both the Gram Panchayats. According to the plaintiffs in the two cases, the people whose names figured from serial Nos. 360 to 424 in the electoral list of booth No. 188 of ward No. 3 of Basantpur Gram Panchayat were the same as those whose names were mentioned at serial Nos. 154 to 220 of the voters' list of booth No. 185, ward No. 17 of Rampur Parihar Gram Panchayat. It was alleged that these sixty four people whose names were included in the voters' list of both the Gram Panchayats had cast their votes at both places and the two writ petitioners, the elected candidates had managed to secure the winning margin on the basis of the twice-cast votes of the aforesaid sixty four people. Here it may be noted that the winning margin at Basantpur Gram Panchayat was eighteen and at Rampur Parihar Gram Panchayat it was twenty six.
4. Earlier in the proceedings in the suit filed by Awdesh Kumar Gupta (Misc. No. 40 of 2002), on the basis of the plaintiffs allegations the Munsif had summoned from the Returning Officer-cum-Circle Officer, Rupauli the marked voters' list of ward No. 17, booth No. 185, from serial Nos. 154 to 220 of Rampur Parihar Gram Panchayat and voters' list of ward No. 3, booth No. 188, from serial Nos. 360 to 424 of Basantpur Gram Panchayat along with the counter-foils and ballot-papers used by those voters at the two booths. The order passed by the Munsif Sadar was sought to be challenged by the defendant in that suit (the winning candidate) in CWJC No. 6533 of 2002. That writ petition had been placed before me and I had declined to entertain it on the ground that It was filed against an inter-locutory order. The writ petition was dismissed with the following observations :
In case, however, the petitioner is aggrieved by the final judgment and order passed by the Munsif, it will be open to him to assail the order coming under challenge in this writ petition while seeking his relief against the final judgment. It will be then open to the petitioner to raise all the points on which the present order is sought to be challenged before this Court.
5. In pursuance of the order of the Court below the materials called for by it were produced by the Returning Officer and then the plaintiffs in both cases filed petitions for appointment of a Pleader Commissioner to examine the materials in order to see that the sixty four people in question has cast their votes in both the Gram Panchayats. The petition filed by the plaintiff in Misc. No. 40 of 2002 was allowed by the Court below by order, dated 30-11-2002 in which the Munsif observed and directed as follows : "I feel that it is essential to ascertain those voters who have voted in both the Panchayats. In the facts and circumstances of the instant case, complete justice cannot be done without scrutiny and inspection of the ballot papers of such voters. The petition in question will certainly help in this direction. The inspection of those ballot papers and other documents can safely and conveniently be done by a Pleader Commissioner in the presence of the learned Counsel for both the parties as well as in presence of Seristedar of the Court. Therefore, the petition dated 20-4-2002, filed by the petitioner (plaintiff) for appointment of Advocate Commissioner is hereby allowed in the interest of justice."
6. In the other case (Misc. No. 7 of 2002) the Court below passed a similar order on 9-5-2002. These two writ petitions have been filed by the winning candidates, challenging the aforesaid two orders.
7. Mr. Raghib Ahsan, counsel appearing for the petitioner in CWJC No. 14322 of 2002 and Mr. Y. C. Verma, Senior Advocate appearing for the petitioner in CWJC No. 6491 of 2003 assailed the impugned orders in the respective cases on a common ground. But before proceeding to note the submissions advanced on behalf of the petitioners it may be noted that Mr. P. K. Verma, counsel appearing for the plaintiff respondent No. 5 in CWJC No. 6491 of 2003 stated (and the fact was not controverted by the other side) that during the pendency of these two writ petitions the materials before the Court below had been scrutinised and by comparing the signatures on the counter-foils of ballot papers the Pleader Commissioner had found that fifty four out of the sixty four people had, in fact voted at both places. Thus; the number of twice cast votes as found by the Pleader Commissioner appointed by the Court, was much higher than the winning margins in the two Gram Panchayats.
8. Both Mr. Raghib Ahsan and Mr. Y. C. Verma assailed the impugned orders in their respective cases mainly on the well known principle of secrecy and confidentiality of the ballot. Learned Counsel submitted that no direction for inspection and scrutiny of ballot-papers could be made on the basis of some vague and unfounded pleadings made in the election petitions. Elaborating the submission Mr. Ahsan contended that any direction for inspection, scrutiny or recount etc. could not be made on the basis of mere allegations. A direction for inspection, scrutiny or recount etc. could be given only on a finding upholding the allegations on the basis of solid evidence produced before the Court. It was stated that in the two cases the impugned orders were passed simply on the basis of the allegations made in the petitions filed under Section 140 of the Act that were later sought to be supported by further petitions and affidavits filed by the two plaintiffs.
9. In support of his submissions Mr. Ahsan relied upon a Supreme Court decision in Chanda Singh v. Shiv Ram (arising from Representation of the People Act, 1951). Both Mr. Verma and Mr. Ahsan also relied upon an earlier decision rendered by me in Mahendra Rai v. State of Bihar 2002 (4) PLJR 552 in which relying upon a Supreme Court decision in Vadivelu v. Sundaram and Ors. it was held that in a judicial proceeding a direction for recount of votes cannot be given as a matter of course and simply for the asking by the defeated candidate. It was further observed that confidentiality of votes was of great value and importance and a direction for recount of votes could only be given on satisfaction of the stringent tests laid down by the Supreme Court. Learned Counsel for the petitioners in the two cases further submitted that the decision in Mahendra Rai (supra) was affirmed right up to the Supreme Court in Chandrika Pd. Yadav v. State of Bihar and Ors. . Mr. Ahsan also invited my attention to another decision of this Court in Sugriw Ram v. State of Bihar in which the principle of secrecy of the franchise was reiterated.
10. On the other hand Mr. P. K. Verma, counsel appearing for respondent No. 5 (plaintiff before the Court below) contended that the real issue in the two cases was not secrecy and confidentiality of the ballot but the purity of the election process. Learned Counsel contended that in case of conflict between the two principles, the former must yield to uphold the more valuable object of the purity of election. In support of his submission Mr. Verma relied upon a decision of the Supreme Court (by a three member bench) in A. Neelalohithadasan Nadar v. George Mascrene and Ors. 1994 Supp (2) SCC 619 : 1994 AIR SCW 2198. In Nadar's case the winning margin was twenty one votes and in the election petition filed by the nearest defeated candidate it was alleged that a number of persons taking advantage of the fact that their names were entered at more than one place in the voters' list had cast their votes twice, thus, materially affecting the election result. On the conflict, thus, arising between the two principles the three-Judge-bench referred to an earlier decision of the Supreme Court in S. Raghbir Singh v. Gurucharan Singh Tohra and made the following observations in paras 10 and 11 of the decision:
10. The existence of the principle of "secrecy of ballot" cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutortly assures a voter that he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips. See in this connection Raghbir Singh Gill v. Gurucharan Singh Tohra . But this right of the voter is not absolute. It must yield to the principle of "purity of election" in large public interest. The exercise of extrication of void votes under Section 62(4) of the Act would not in any manner impinge on the secrecy of ballot especially when void votes are those which have to be treated as no votes at all. "Secrecy of ballot" principle presuppose a validly cast vote, the sanctity and sacrosanctity of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the "secrecy of ballot" as an allied vital principle. It was observed by this Court in Raghbir Singh case as follows :
(SCR p. 1320 : SCC p. 68, (at p. 1372 of AIR) para 23).
Secrecy of ballot though undoubtedly a vital principle of ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation or in confrontation to the foundation of free and fair election, viz., purity of election. They can co-exist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waved by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play.
11. In view of the above it is the settled position that out of the two competing principles, the purity of election principle must have its way. Section 94 of the Act cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process.
11. In Nadar's case (1994 AIR SCW 2198) in the recriminatory petition filed by the elected candidate before the High Court it was, inter alia, contended that a number of twice cast votes were polled in favour of the election petitioner as well. In those circumstances on a verbal prayer made before the High Court, the Court verbally allowed inspection of the marked copies of electoral rolls and counter-foils of ballot-papers in order to facilitate the examination of witnesses who were to appear before the Court shortly. Inspection was permitted to both parties in presence of the Registrar of the Court. In the Supreme Court an objection was raised with regard to the stage at which and the manner in which inspection of the ballot-papers etc. was allowed by the High Court. The Supreme Court took note of the objections in para 12 of the judgment, the relevant portion from which is reproduced below:
...But what was questioned by Mr. Prashant Bhushan, as reiterated in his written submissions of 14-9-1993, was that the High Court was not correct in allowing examination of marked copies of electoral rolls and counter-foils without any evidence or material in support of the plea for inspection and that the High Court allowed the inspection casually without inviting a written application or even by a written order. It was submitted that except for pleading in the election petition regarding void voting, there was no cause pleaded to permit the election papers to be thrown open for inspection and this exercise was termed by learned Counsel as 'fishing or roving'. Rule 93 of the Conduct of Election Rules, 1961, provides for documents which shall not be opened and their contents inspected by, or produced before, any person or authority except under the orders of the competent Court. On the basis thereof it was maintained that by a string of judgments of this Court it has been ruled that inspection could only be allowed when two conditions are satisfied :
1. The material facts on the basis of which inspection of documents is sought, must be clearly and specifically pleaded; and
2. The Court must be satisfied on evidence, even if in the form of affidavit, that it is necessary to allow inspection in the interest of justice.
Support for these principles was sought from Ram Sewak Yadav v. Hussain Kamil Kidwai , Hariram v. Hira Singh , R. Narayanan v. S. Semmalal , Jagjit Singh v. Gyani Kartar Singh , Jitendra Bahadur Singh v. Krishna Behari and other decisions of the like.
12. Dealing with the submission the Supreme Court in para 13 of the judgment observed as follows :
But by and large these are re-count. In contrast the instant case is of double voting which has specifically been pleaded in the election filed on 29-7-1991 supported by affidavit and the names of the voters have been supplied in the list annexed thereto.... Since the names of the voters who were alleged to have double voted, had specifically been pleaded in the election petition (as amended from time to time) and the recrimination petition, it was necessary to correlate their names with the electoral rolls and the counter-foils of the ballot papers so that in case of double voting or impersonated voting, the impure element in the election process could be identified and retrieved from the election package. The primary purpose thus was to purify the electoral process and not to hunt or hound the voter's choice, when exercised validly and freely. It is for that purpose that the Court, in the interest of justice, to facilitate a quick trial permitted the parties to inspect before hand the records but after the framing of the requisite issues arising from the pleadings of the parties and not earlier. This approach could not be termed as permitting a 'roving or fishing' enquiry, as it is sometimes described in cases of a claim for re-count. We are thus of the view that the High Court committed no error in permitting such inspection in the facts and circumstances. We must, however, hasten to clarify that we should not be understood to approve of the High Court giving oral directions in such serious matters without insisting on a formal application setting out how a prima facie foundation was laid for the grant of such relief.
13. The material facts and circumstances in which the Supreme Court decision in Nadar's case (1994 AIR SCW 2198) was rendered appear to be very close to the facts and circumstances of the two cases in hand. The only material difference seems to be that in Nadar's case in the recriminatory petition filed before the High Court the winning candidate had made a counter allegation against the election-petitioner himself the beneficiary of double voting and he (the winning candidate) did not raise any objection when the Court gave the verbal direction for inspection of the ballot-papers etc. In the present case it is not clear from the materials on record whether or not the writ petitioners had made a counter allegation against the election-petitioners-respondents about they too getting some twice-cast votes. But they certainly raised an objection to the order for inspection and scrutiny passed by the Court below. However, as laid down in Nadar's case under such a situation it is the principle of purity of election that must be given the overriding effect over the other principle of secrecy of ballot.
14. Mr. Raghib Ahsan relied upon another decision of the Supreme Court in O. Bharathan v. K. Sudhakaran . In that case the winning margin was 219 votes and the election of the winning candidate was challenged on the ground that he had got twice-caste votes fare more in number than the winning margin. On the basis of the evidence led before it the High Court had upheld the case of the election petitioner and had set aside the election of the winning candidatre. In appeal before the Supreme Court the judgment and order of the High Court was set aside. But on a careful reading it would appear that in O. Bharathan the issue was entirely different. How the matter had proceeded before the High Court is taken note of in para 4 of the decision which is as follows :
...This job was entrusted to the Joint Registrar of the High Court who after verification found out of 308 void/invalid votes, namely (269 + 39) 306 of such votes have been polled in favour of the appellant/elected candidate. In view of the said report given by the Joint Registrar, the learned Judge found that those 306 votes counted in favour of the elected candidate must be deducted and after so doing, the appellant/elected candidate was found to have secured only 54659 which is less than 87 votes secured by the election petitioner (1st respondent herein). As a consequence of this finding while setting aside the election of the appellant as void, the learned Judge further declared the 1st respondent as duly elected to the said constituency.
15. It is significant to note that in O. Bharathan the Supreme Court did not disapprove of the High Court's decision to inspect and scrutinise the ballot papers. What, however, failed to get the approval of the Supreme Court was the findings recorded by the High Court in the light of the inspection and scrutiny of the ballot-papers and other connected materials. In its decision the Supreme Court reproduced extracts from the depositions of witnesses and the inferences drawn and findings recorded by the High Court on that basis and came to find and hold that on the evidence before it the High Court's findings were wholly [unjustified. It went on to hold that the High Court's finding that a number of voters had cast their votes twice was based on comparison of hundreds of disputed signatures by the Judge himself and the finding was, therefore, wholly unsustainable. The relevant passages are in paras 15, 17 and 18 of the decision which are reproduced below:
15. It appears that the learned Judge has decided the question of void and invalid votes on insufficient materials and evidence in the case. Majority of the witnesses denied that they have voted more than once and they have also denied their signatures in the counter foils. Under such circumstances, the learned Judge could Have summoned documents containing admitted signatures for comparison by an expert and also by comparing them himself. Instead the learned Judge understood (sic undertook) the hazardous task of comparing hundreds of disputed signatures which are not having individual characteristics to set aside the election of the candidate, the appellant herein.
17. Notwithstanding the above fact namely, the learned Judge while doubting the testimony of the witnesses, instead of confronting them in a legal way to get the truth jumped to his own conclusion. The learned Judge in the course of appreciating the scope of Section 78 of the Evidence Act and having given a finding that under Section 73 of the Evidence Act a disputed signature could be compared only with the admitted signatures, proceeded to compare the signatures found in the counter foils to find out whether both the signatures were to be by the same person.
18. On the peculiar facts of this case, the learned Judge erred in taking upon himself the task of comparing the disputed signatures on the counter foils without the aid of an expert or the evidence of persons conversant with the disputed signatures. Therefore, the approach made by the learned Judge is not in conformity with the spirit of Section 73 of the Evidence Act....
16. In the cases in hand the Court has directed for inspection and scrutiny of the ballot papers, their counter-foils and other connected materials. The stage of drawing inference, and recording findings on the basis of the inspection and scrutiny is yet to come and hence, the decision in O. Bharathan has no application to the two cases in hand in their present stage.
17. On the issues raised in the two writ petitions the decision of the Supreme Court in Nadar's case (1994 AIR SCW 2198) appears to me to tee unquestionably the binding precedent. Following that decision I see no infirmity in the orders passed by the Court below appointing a Pleader Commissioner for inspection of the ballot papers, their counter-foils etc. in presence of counsel for both the parties.
18. Once the inspection is made and the report of the Pleader Commissioner is submitted before the Court, it will be open to the parties, including the writ petitioners to file their objections to the report and to make their submissions with regard to the proper and legal way to analyse and appraise the voters' list, the ballot-papers, the signed counts-foils of those ballot-papers and the other election materials and the correct findings that may be arrived at on that basis in the right' of the Supreme Court decision in O. Bharathan and following the guidelines as laid down in that decision and the other decisions of the Supreme Court referred to in it.
19. In the result, I find no infirmity in the two orders coming under challenge in these two writ petitions. These writ petitions are accordingly dismissed, subject to the observations made in the previous para of this judgment. No. order as to costs.