Patna High Court
Samsul Haque vs The State Of Bihar And Ors. on 17 January, 2002
Equivalent citations: 2002(2)BLJR1302
Author: R.S. Garg
Bench: R.S. Garg
ORDER R.S. Garg, J.
1. The petitioner who was declared as returned candidate, was candemned in the election petition as a law breaker and a person who committed misconduct during the course of counting of votes. The election petition filed by the present Respondent No. 4 was basically based upon the material pleading that there were some bunglings in counting of the votes, some votes which were cast in favour of the election petitioner were mixed in the lots of the returned candidate and despite his application for recount the Returning Officer, for the reasons best known to him, did not order for recount. The present petitioner/returned candidate contested the election petition on all possible grounds and inter alia pleaded that there were no illegalities in counting votes and as the application for recount of the vote did not provide any substance or material to persuade the Returning Officer for recount, the application was rightly not considered.
2. As the parties joined sales, certain issues were cast, the parties were granted proper opportunity to lead evidence. After hearing both the parties the Election Tribunal came to the conclusion that large scale mismanagement took place at the time of counting of the votes, number of the votes cast in favour of the election petitioner were mixed in the lots of the votes of the returned candidate and as the Returning Officer was not justified in not passing the order on application for recount the counting process stood contaminated and as the agents or friends of the present petitioner created a situation of pandemonium at the time of counting, the misconduct committed by the returning candidate was writ large, therefore, the election deserved to be set aside. The Tribunal accordingly allowed the Election petition and set aside the election. Being aggrieved by the said order passed by the Election Tribunal the returned candidate has come to this Court.
3. Earned Counsel for the petitioner has submitted that if the Election Tribunal was of the opinion that there were mass of large scale bungling at the time of counting of votes then the secrecy/sanctity of the franchise could be interfered with by the Election Tribunal by directing recounting of votes. According to him the Ejection Tribunal without looking into the votes could not record a finding that because of improper or bad counting of votes the election was adversely affected.
4. Earned Counsel for the election petitioner on the other hand submits that as the finding recorded by the Election Tribunal, in relation to the misconduct, is against the returned candidate and as the findings recorded by the Tribunal are not perverse this Court should not interfere under Article 226/227 of the Constitution of India. He further submits that the Tribunal has recorded a finding that the election became bad and was liable to be set aside in accordance with Sub-clause (iv) of Clause (d) of Sub-section (1) of Section 144 of the Bihar Panchayat Raj Act, 1993, therefore, also this Court should not interfere in the matter. At this stage, I consider it necessary to refer to the provisions of Sections 144 and 146 of the Bihar Panchayat Raj Act, 1993.
Section 144. Grounds for declaring election to be void - (i) Subject to the provisions of Sub-section (2) if the prescribed authority is of opinion:
(a) that on the date of his election, a returned candidate was not qualified or was disqualified to be chosen as a member under this Act; or
(b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or
(c) that any nomination paper has been improperly rejected, or
(d) that the result of the election, in so far as it concerns a returned candidates, has been materially affected-
(1) by the improper acceptance of any nomination; or
(ii) by any corrupt practice committed in the interest of the returned candidate by an agent; or
(iii) by the improper reception, refusal or rejection of any vote of reception of any vote which is void; or
(iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder, the prescribed authority shall declare the election of the returned candidate to be void.
(2) if in the opinion of the Prescribed Authority any agent of a returned candidate has been guilty of any corrupt practice, but the prescribed authority is satisfied-
(a) that no such corrupt practice was committed at the election by the candidate and every such corrupt practice was committed contrary to the orders and without the consent of the candidate;
(b) that the candidate took all reasonable measures for preventing the commission of corrupt practices at the election; and
(c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agent;
Then the Prescribed Authority may decide that the election of the returned candidate is not void.
Section 146. Corrupt practices. - The following shall be deemed to be corrupt practices for the purposes of this Act:
(i) bribary as defined in Clause (1) of Section 123 of the Representation of the People Act, 1951 (Central Act 48 of 1951), for the time being in force;
(ii) undue influences as defined in Clause (2) of the said section for the time being in force;
(iii) that appeal by a candidate or his agent or by any other person with the consent of a candidate or his agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of or appeal to national symbols such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate;
(iv) the promotion of or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion race, caste, community or language by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the election of that candidate to or for prejudicially affecting the election of any candidate;
(v) the publication by a candidate or his agent or by any other person with the consent of the candidate or his agent of any statement of fact which is false and which the either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal of any candidate, being statement reasonably calculated to prejudice the process of that candidate's election;
(vi) the hiring or procuring whether on payment or otherwise, any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his agent, or the use of such vehicle or vessel for the free conveyance of any voter other than the candidate himself, the member of his family or his agent) to or from any polling station provided in accordance with the rules made under this Act;
Provided that the use of public transport vehicle or vessel or railway carriage by any voter at his own cost for the purpose of going to or coming from any such polling station or places fixed for the poll shall not be deemed to be correct practice under this clause.
Explanation: - In this clause, the word "vehicle" means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise whether used for the drawing of other vehicles or otherwise;
(vii) the holding of any meeting at which intoxicating liquors are served; (viii) the issuing of any circular, playcard or poster having reference to the election which does not bear the name and address of the printer and publisher thereof;
(ix) any other practice which the Government may by rule specify to be a corrupt practice.
Section 144 provides that subject to the provisions of Sub-section (2) if the Prescribed Authority is of the opinion that illegality has been committed then the election of the returned candidate may be set aside. The Clause (d) provides that the authority may set aside the election, if he comes to a conclusion or records an opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination. The present is not a case of improper acceptance of any nomination paper. Sub-clause (ii) says that if the election's results are affected or materially affected by any corrupt practice committed in the interest of the returned candidate by an agent. The corrupt practice has been defined under Section 146 of the Bihar Panchayat Raj Act, 1993. Undisputedly non-counting of the votes or improper counting of the votes would not be a corrupt practice attributable either to the returned candidate or to this agent or any of his supporter. The corrupt practice as prescribed under Section 146 of the Act is something more than a misconduct. Present is net a case of corrupt practice. The Tribunal has not recorded any finding that the returned candidate committed or was engaged in the corrupt practice. In fact the finding is that the supporters of the returned candidate did not allow the officers to count the votes by creating a situation of pandemonium, therefore, the wrong acts on the part of the supporters of the returned candidate would become misconduct on the part of the returned candidate.
5. When the law in relation to the election says that on the ground of corrupt practice the election can be set aside then contrary to the law or the letter of the statute nobody can say that because of some misconduct the result would be interfered with and election be set aside.
6. Sub-clause (iii) of Clause (d) of Sub-section (1) of Section 144 of the Act says that if the result is materially affected by the improper reception, refusal or rejection of any vote or reception of any vote which is void the election can be set aside. In a case where the election petitioner proves to the satisfaction of the authority that because of the improper reception, refusal or rejection of any vote or reception of any vote which is void, the result was materially affected then the Election Tribunal can set aside the election. In any given case this fact cannot be proved by leading oral evidence. The oral evidence can only provide a foundation that votes were wrongly rejected or accepted or, were not properly counted. If the Tribunal records a positive finding in favour of the election petitioner that if really so happened then it has to proceed further and order recount of votes in its own presence. The question would be whether the process of counting was contaminated or became bad because of the illegality. If the Tribunal records a finding that the election petitioner has satisfied its judicial conscious that the votes were improperly refused or rejected or void votes were counted then instead of setting aside the election it would be obliged to order for recount of votes irrespective of the prayer made by the election petitioner. The fact that a particular vote was void or not, it was wrongly accepted or rejected, refused or admitted cannot be decided simply on the oral evidence. For coming to a positive conclusion the Election Tribunal has to see the votes and record a finding that a particular vote was rightly cast, it was rightly accepted or not. If the Tribunal after recount of the votes in its presence and supervision comes to the conclusion that because of the improper reception, refusal or rejection of any vote or reception of any vote which was void, the results were materially affected, then only the Election Tribunal can set aside the election. It would be too much to argue that after recording the finding that the votes were not rightly counted, (without recount of votes), the Tribunal would be justified in setting aside the election.
7. Sub-clause (iv) of Clause (d) of Section 144(1) of the Act provides that the election can be set aside in so far as it concerns a returned candidate, if it has been materially affected by any non-compliance with the provisions of the Act or of any rules or orders made therein. In fact, Clause (iv) is a subsidiary or residuary clause. If the Election Tribunal comes to a conclusion that because of non-compliance of the provisions of the Act or rules or orders made under the Act, the election was materially affected then on such a finding it can set aside the election. Clause (iv) of Clause (d) of Sub-section (1) of Section 144 is couched in different language. Sub-clause (iii) relates to the improper reception, refusal or rejection of any vote or reception of any vote which is void while Clause (iv) relates to non-observance of the provisions of relevant Act or rules or orders made thereunder. In the present case undisputedly the case of the present election petitioner would fall under Sub-clause (iii) and not Sub-clause (iv). The Election Tribunal under misconception of law has recorded the finding that the case of the election petitioner would fail under Sub-clause (iv), while coming to this finding it has ignored the mandate of law in relation to Sub-clause (iii) which in fact covers the dispute in relation to the reception of void or refusal of valid votes.
8. The findings recorded by the Election Tribunal in paragraph 17 are that because of certain alarms, hue and cry raised by Samsul Haque and his supporters the votes could not be counted properly. On basis of this finding the Tribunal has recorded that returned candidate committed misconduct. The Election Tribunal has not taken into consideration that the said misconduct would only provide a ground for recount of the votes and would not culminate itself into a corrupt practice as provided under Section 146 of the Act. If the Tribunal was of the opinion that the votes were not properly counted, the application was not received in its true perspective and the authority was unjustified in not passing orders on the said application then the Election Tribunal could direct that non-compliance with the provisions of recounting of the votes would lead to an order in favour of the election petitioner for recount of the votes. In the present case without appreciating the provisions of law the concerned Election Tribunal has simply recorded the finding that because the returned candidate did not allow the Returning Officer to recount the votes, the result was materially affected and the election has to be set aside. In the opinion of this Court such approach cannot be appreciated. The Tribunal to come to a positive conclusion should have directed for production of the ballots required itself to look into the ballots and only thereafter record as to how many valid votes were received by the particular candidates.
9. The order passed by the Election Tribunal cannot be approved its desirous to and is accordingly modified.
10. Without entering into the merits of the evidence and without setting aside the finding recorded by the Election Tribunal in relation to the misconduct because of the same would not be necessary at this stage I would allow the petition with the direction that in view of the findings recorded by the Election Tribunal it shall direct production of the ballots and direct recount of the same in its own presence. After the recount is over the Election Tribunal, in accordance with the law, shall declare the result of the election petition.
11. The petition is allowed to the extent as indicated above with cost quantified to Rs. 1000/- in favour of the petitioner to be paid by the Respondent No. 4.