Allahabad High Court
Satendra Kumar Singh vs State Of U.P. & Others on 28 January, 2010
Equivalent citations: 2010 (3) ALL LJ 17, 2010 A I H C 2084, AIR 2010 (NOC) (SUPP) 626 (ALL.), (2010) 110 REVDEC 287, (2010) 2 ESC 978, (2010) 2 ADJ 462 (ALL), (2010) 80 ALL LR 45, (2010) 79 ALL LR 60, (2010) 3 ALL WC 2793
Author: Sabhajeet Yadav
Bench: Sabhajeet Yadav
Court No.5
Civil Misc. Writ Petition No. 365 of 2008
Satendra Kumar Singh....Vs....State of U.P. & others.
-----------
Hon'ble Sabhajeet Yadav,J.
By this petition, the petitioner has challenge the judgement and order dated 22.12.2007 passed by Addl. District Judge, Deoria in Election Petition No. 8 of 2006, Satyendra Kumar Singh Vs. Anand Dwivedi and others, whereby the election petition filed by petitioner has been dismissed.
2. The brief facts leading to the case are that the petitioner alongwith 7 other candidates had contested the election of members of ward no.20 of Nagar Palika Parishad, Deoria held on 31.10.2006. Out of total 3187 votes of said ward 1984 voters had casted their votes. In the counting of votes held on 6.1.2006 and Sri Anand Dwivedi was declared elected having secured total 566 votes and the petitioner stood second, alleged to have got 551 votes. Feeling aggrieved against the counting of votes the petitioner has filed Election Petition No.8 of 2006 before Election Tribunal i.e. District Judge, Deoria challenging the result of said election on the ground of fraud played while counting of votes and prayed for recounting of votes of said election in respect of ward in question.
3. The petitioner had specifically stated in the election petition that while counting of votes, the votes of every candidate were declared from time to time and according to that declaration the petitioner was leading by a margin of 95 votes from the returned candidate but while final declaration of result the respondent Sri Anand Dwivedi was declared elected by a margin of 15 votes in fraudulent manner by wrongly and illegally counting of 50 votes of petitioner in favour of Anand Dwivedi. Not only this but while declaring Sri Anand Dwivedi as elected in the said election his 20 invalid votes were wrongly accepted as valid votes and 10 more valid votes of the petitioner were rejected as invalid. It was also stated that the petitioner had more valid votes than elected candidate and was entitled to be declared as elected in place of returned candidate. It was also stated in the said election petition that the objection with regard of illegal counting of votes was immediately raised by 2 the petitioner to the Returning Officer in writing but Returning Officer had neither accepted the objection of petitioner nor paid any heed to the objection of fraud raised by the petitioner while counting of votes. The respondent Anand Dwivedi had filed his written statement/objection in the aforesaid election petition and denied the allegations made in it.
4. The aforesaid allegations are also made in the instant writ petition. It is also stated in the writ petition that in order to prove his case before Election Tribunal, the statement of petitioner was recorded on 8.8.2007 and the statement of his counting agent Sri Sanjay Kumar Singh was also recorded before the Election Tribunal, whereby they have supported the assertions made in the election petition. The petitioner has filed the copy of objection raised by him while counting of votes as Paper No.47-G and a copy of fax as Paper No.48-G, before the election Tribunal. Besides this, other contesting candidates had also filed their affidavits and also supported the case of petitioner before election tribunal that the fraud was played by Returning Officer while counting of votes and declaration of result of said election. But the Election Tribunal has dismissed the election petition filed by petitioner vide judgement and order dated 22.12.2007, contained in Annexure-8 of the writ petition, hence this petition.
5. Counter and rejoinder affidavits have been exchanged between the parties and case is ripe for final disposal, therefore, same is heard with the consent of the learned counsel for the parties.
6. Heard Sri S.K. Tyagi, learned counsel for the petitioner and Sri Akhilesh Kumar appearing for contesting-respondent.
7. The learned counsel for the petitioner has submitted that in para 10 to 19 of the Election Petition the petitioner had specifically stated that a bundle of 50 votes of petitioner were fraudulently counted in favour of returned candidate by including it in the bundle of returned candidate and 10 valid votes of petitioner were wrongly declared invalid and 20 invalid votes of returned candidate were wrongly accepted as valid votes in his favour while counting of votes. It was also alleged that in fact, only 27 votes of petitioner were declared invalid but in the final result he found that his 37 votes were 3 declared invalid. Learned counsel for petitioner has further submitted that virtually the petitioner was winning candidate having secured total number of 611 votes but he was wrongly shown to have secured only 551 votes, whereas the respondent Anand Dwivedi/returned candidate was wrongly shown as having secured 566 valid votes and declared elected by manipulation and fraud played while counting of votes by returning Officer, as such he submitted that the recounting of votes by the Election Tribunal was only remedy to undone the aforesaid fraud played while counting of votes and to maintain purity in the process of election. In support of those allegations, the petitioner and his counting agent entered in the witness box and had supported the allegations made in the election petition. Besides this, other contesting candidates had also filed their affidavits before Election Tribunal and supported the version of petitioner but election tribunal has taken wholly erroneous and perverse view in the matter and dismissed the election petition filed by the petitioner.
8. Contrary to it, learned counsel appearing for returned candidate has supported the view taken by Election Tribunal and submitted that in given facts and circumstances of the case, the writ petition is liable to be dismissed.
9. Having regard to rival submissions of the learned counsel for the parties, in given facts and circumstances of the case, the question arises for consideration is that as to whether the election tribunal was justified in refusing to order recounting of votes of said election?
10. In order to find out accurate and appropriate answer to this question it is necessary to examine the case laws wherein such question has been dealt with. In N. Narayanan vs. S. Semmalai, (1980) 2 SCC 537= AIR 1980 SC 206, it was observed that the relief of recounting cannot be granted merely on possibility of there being an error in counting of votes. The allegations must not only be clearly made but also be proved by cogent evidence. After discussing the entire case law on the issue, the legal position earlier summarised by Hon'ble Apex Court in the case of Bhabhi Vs. Sheo Gobind AIR 1975 S.C. 2117 has been quoted in para 26 of the decision as under:-
" The court would be justified in ordering re-count of the ballot 4 papers only where:
(1) The election petition contains an adequate statement of all the material facts on which the allegations of irregularity or 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."
11. In Mahendra Pal Vs. Ram Dass Malanger and others (2002) 3 SCC 457, the Hon'ble Apex Court while considering the circumstances warranting for recounting of votes in election petition under the provisions of Representation of People Act 1951 observed that it is for the applicant to establish his case of irregularities and illegalities committed in the counting of votes. In absence of any evidence the application for recounting of votes cannot be allowed.
12. In Tanaji Ramchandra Nimhan Vs. Swati Vinayak Nimhan 2006 All. C.J. 707 the Hon'ble Apex Court while dealing with the conditions in which recounting of votes can be directed, held that recounting should not be ordered as a matter of course, rather a very strong case for recounting has to be made out by the election petitioner. The pertinent observations made by Hon'ble Apex Court in para 9 of the said decision are quoted as under:-
"This Court after referring to a number of prior decisions, has held in Mahendra Pal v. Ram Dass Malanger and others, JT 2002 (2) SC 396; (2002) 3 SCC 457, that an order for recounting cannot be made as a matter of course. Unless the election petition had laid the foundation and there was clinching evidence to support the case set up by the election petitioner, a recount normally could not be ordered. In Chandrika Prasad Yadav vs. State of Bihar and others, JT 2004 (4) SC 264; (2204) 6 SCC 331, relying on an earlier decision in M. Chinnasamy v. K.C. Palanisamy and others, (JT 2003 (9) SC 161; (2004) 6 SCC 341), bench of three Judges (to which one of us S.B. Sinha, J was a party) held that an election petition seeking recount must contain a concise statement of material facts and clear evidence in support of the facts pleaded. It was held that a small margin of victory by itself was not a ground for ordering recount. A roving and fishing inquiry was not permissible while directing recount of votes.
The requirement of maintaining secrecy of ballot papers had also to 5 be kept in mind before directing a recount."
13. A Full Bench of this Court in Ram Adhar Singh vs. District Judge, Ghazipur and others reported in 1985 All. C.J., 196 has considered the question of recounting of votes under the provisions of U.P. Panchayat Raj Act, where in paras 10 and 11 of the said decision the Full Bench of this Court has quoted the observation made by Hon'ble Apex Court in case of Ram Sewak Yadav v. Hussain Kamli Kidwai and others AIR 1964 SC 1249 as under:-
"10. In the case of Ram Sewak Yadav v. Hussain Kamli Kidwai and others (AIR 1964 SC 1249), the Supreme Court while dealing with a similar question arising under the Representation of the people Act, held that before an authority or court dealing with an election petition is not to look in to or direct inspection of ballot papers unless following two conditions co-exist:-
(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case (the petition meets the requirement of section 83 (I) of the Representation of the People Act regarding contents of the election Petition), and
(ii) The Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.
11. In this connection, the learned Judges of the Supreme Court went on to observe thus:-
" But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with provisions supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interest of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection."
14. In para 12 of the said decision the Full Bench of this Court has taken note of other decisions of Hon'ble Apex Court and quoted the observations made by Hon'ble Apex Court in Suresh Prasad Yadav v. Jai Prakash Mishra AIR 1975 SC 376. The pertinent observations made in para 12 of the said decision in its entirety are quoted as under:-
6"In the case of Bhabhi v. Sheo Govind and others (AIR 1975 SC 2117), the Supreme Court approved the principles for inspection of ballot papers laid down in Ram Sewak's case and after noticing its decisions in the cases of Dr. Jagit Singh v. Gaini Kartar Singh (AIR 1966 SC 773), Shashi Bhushan v. Prof. Balraj Madhok (AIR1972 SC 1251), BEliram Bhalaik V. Jai Behari Lal Kachi (AIR SC 283), Baldeo Singh V. Teja Singh (AIR 1975 SC 693) and Suresh Prasad Yadav v. Jai Prakash Mishra (AIR 1975 SC 376), the Court observed thus:-
'' Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers;
(1) That is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;
(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;
(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;
(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials."
15. But in S. Raghbir Singh Gill Vs. S. Gurcharan Singh Tohra & others, AIR 1980 SC 1362, while dealing with the question of recount of votes in para 22 and 23 of the decision the Hon'ble Apex Court observed as under:-
" 22. Secrecy of ballot was mooted to ensure free and fair elections. If the very secrecy of ballot instead of ensuring free and fair elections strikes at the root of the principle of free and fair elections this basic postulate of democracy would be utilised for undoing free and fair elections which provide life-blood to parliamentary democracy. If secrecy of ballot instead of ensuring free and fair elections is used, as is done in this case, to defeat the very public purpose for which it is enacted, to suppress a wrong 7 coming to light and to protect a fraud on the election process or even to defend a crime, viz., forgery of ballot papers, this principle of secrecy of ballot will have to yield to the larger principle of free and fair elections.
23. Secrecy of ballot though undoubtedly a vital principle for 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 and in confrontation to the foundation of free and fair elections, 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 waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play."
16. Thus on a close scrutiny of legal position stated herein before it is clear that requirement of maintaining secrecy of the ballot papers is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations and recounting of votes should not be ordered by election tribunal on mere asking by election petitioner for the purpose of fishing out material to invalidate the election in question, unless the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting of votes are founded and 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 further the court trying the petition is prima facie satisfied that making of order for recount is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties but at the same time as held by Hon'ble Apex Court in Raghbir Singh Gill's case (supra) if secrecy of ballot instead of ensuring free and fair election is used to suppress a wrong coming to light and to protect a fraud on the election process or even to defend a crime viz. forgery of ballot papers, this principle of secrecy of ballot will have to yield to the larger principle of free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair election viz. purity of election. They can co-exist 8 but where one is used to destroy the other, the first one must yield to the principle of the purity of election in larger public interest.
17. Apart from it, this Court cannot lose sight of rampant corruption prevalent in public life and public administration. Increasing trend of commercialization and criminalization of politics no longer remained secret, rather has become common phenomenon of present politics. Now a days money and muscle are playing dominant role in election right from lower level of Village-Panchayat upto higher level of Parliamentary election. It would be needless to say that majority of democratic institutions are now captured by monied men and persons coming from criminal background through our present democratic process. Commercialization and criminalization of politics have posed imminent danger and new challenge to our Parliamentary democracy. Such developing trend in politics has not merely polluted the political atmosphere and scenario of the country but due to which survival of democracy has been put in peril and now it is at stake. In such situation the courts or tribunal trying the election dispute has to be much more careful and cautious about maintaining of purity of election process through free and fair election. And where specific complaints are made through the election petition with material particulars in respect of irregularity or illegality in counting of votes and/or manipulations or fraud played in counting of votes or tampering of ballot papers etc. in such counting not on vague, frivolous and indefinite allegations, the courts or tribunal trying the election petition, should readily allow the prayer for recounting of votes to maintain purity in the election process which is basic postulate of our Parliamentary democracy.
18. Now coming to the allegations made in paragraphs no. 10 to 19 of the election petition which are as under:-
"10- ;g fd pquko esa ;kph dks 551 er feyuk fn[kk;k x;k tc fd izfrif{k;ksa dks fuEuor izfri{kh la0 1 dks 566 er izfri{kh la0 2 dks 328 er izfri{kh la03 dks 196 er izfri{kh la04 dks 76 er izfri{kh la05 dks 97 er izfri{kh la06 dks 96 er rFkk izfri{kh la0 7 dks 37 er feyuk tkfgj fd;k x;k gS vkSj 37 erks dks voS/k crk;k x;kA 11- ;g fd erx.kuk ds nkSjku izR;sd izR;k'kh dks feys oksVksa dh ?kks"k.kk gksrh Fkh vkSj mlds vuqlkj ;kph izfri{kh la0 1 ls ;kph 95 erksa ls vkxs Fkk vkSj fot; gks x;k Fkk ijUrq QkbZuy ?kks"k.kk ds le; vkfilh ;y pkVZ ls ;kph dks gsjk 9 Qsjh dj ds rFkk esjs 50 erksa dks izfri{kh la0 1 ds er ls feykdj vkSj esjs oS/k erksa dks voS/k erksa ?ksf"kr dh rFkk izfri{kh la0 1 ds voS/k yxHkx 20 voS/k erksa dks oS/k ekurs gq, izfri{kh ls0 1 ds erksa ls feykdj mudks 15 oksVksa ls fot; ?ksf"kr dj fn;k tc fd muds 20 voS/k er feykus ds ckn Hkh thr jgs Fks vkSj muds voS/k erksa es ls fudky fy;k tkrk rks ge ;kph muls yxHkx 95 oksVksa ls fot; gks jgs Fks es feykdj izfri{kh la0 1 dks fot; ?kskf"kr dj fn;k x;kA 12- ;g fd erx.kuk ds le; dqy 27 voS/k crk;s x;s exj vfUre ?kks"k.kk ds le; ge ;kph ds 10 oS/k erksa dks voS/k djrs gq, 37 dj fn;k x;k rFk ge ;kph dh ,d 50 okyh xMMh izfri{kh la0 1 ds erksa es feykdj fot;h ?ksf"kr fd;k x;kA 13- ;g fd erx.kuk es dkQh /kk/kyh dh x;h rFkk fu;eksa dk mYya?ku djrs gq, vfu;ferrk cjrh x;h vkSj xyr ?kks"k.kk dh x;hA 14- ;g fd ge ;kph erx.kuk ds nkSjku ge lc dk ,rjkt fd;k ijUrq fdlh vf/kdkjh us ;kph dh ckr ugh lquh ;kph dks MkV QVdkj dj pqi djk fn;k x;kA 15- ;g fd vkfQllh;y pkVZ es dfVax Hkh x;h rFkk fdlh u fdlh rjg izfri{kh la0 1 dks ftrkuk Fkk ,slh fufer xyr pkVZ cukdj o ge oknh@ ;kph ds oS/k erks dks voS/k djrs gq, rFkk ge ;kph dh ,d 50 erks dh xMMh dks feykdj ge ;kph dks gjk fn;k x;kA 16- ;g fd ge ;kph dks 611 er feyk Fkk rFkk izfri{kh la0 1 dks 516 er feys ftles 20 voS/k er feykdj feyk Fkk fxu fn;k x;k Fkk bl rkSj ij izfri{kh la0 1 ds erk dh la0 469 gSA 17- ;g fd ge ;kph us iqu erx.kuk ds fy, izkFkZuki= fn;k ftls ysdj fuokZpu vf/kdkjh us j[k fy;k ysfdu tku cw>dj erx.kuk iqu% ugh djk;kA 18- ;g fd lgh vkSj ifjis{k rjhds ls erx.kuk gq;h gksrh rks ge ;kph fot;h ?kksf"kr fd;s tkrsA 19- ;g fd ;fn vkt Hkh iqu% erx.kuk gks tk;s rks ge ;kph yxHkx 95 erksa ls fot; ?kksf"kr gks tk;sxs blfy, iqu% erx.kuk djkdj ifj.kke ?kksf"kr fd;k tkuk vko';d gSA
19. Thus, on an careful reading of the aforesaid paragraphs of the election petition contained in Annexure-1 of the writ petition it is clear that election petition contains an adequate statement of all material facts on which the allegations of not only illegality in counting of votes were founded but specific allegations of manipulation and fraud played by Returning Officer while counting of votes were levelled with material particulars. Not only this but the petitioner had also adduced voluminous evidence to support the allegations levelled in the election petition in respect of aforesaid illegalities and manipulations in counting of votes by entering himself in witness box and by examining his counting agent. The aforesaid version of election petition 10 was also supported by other candidates by filing their affidavits before the Election Tribunal, which clearly established that the petitioner had adduced sufficient evidence affording a good ground for believing that manipulation was done and fraud was played while counting of votes by returning officer, therefore, in my opinion, the only way to decide the dispute and to do complete justice between the parties was order for recounting of votes.
20. From the perusal of impugned judgment and order passed by the Election Tribunal it appears that the statement of petitioner and his agent in respect of manipulation in counting of votes has been rejected without any cogent reason. It appears that while dealing with issue, the election tribunal under wrong notion of law has illegally assumed that the petitioner was required to prove his case/allegations made in the election petition beyond reasonable doubt, whereas in view of legal position enunciated by Hon'ble Apex Court and this Court from time to time as indicated herein before, such standard of proof for inspection of ballot papers for the purpose of recounting of votes is not at all necessary. The election petitioner was required merely to adduced such evidence on the basis of which allegations could be prima facie established affording good ground for believing that there has been mistake or illegality and/or manipulation in counting of votes and further on the basis of such evidence, court or tribunal trying the election petition could be prima facie satisfied for directing inspection of ballot papers or recounting of votes. A distinction between prima facie opinion and concluded opinion was required to be kept in mind but while rejecting the prayer for recount of votes, in my opinion, the election tribunal has proceeded completely on wrong notion of law and rejected prayer for recount of votes on the ground that the petitioner has failed to prove his case.
21. In this connection, it is to be noted that when the allegations in the petition were not vague or indefinite or frivolous, rather they were very specific in terms and supported by oral evidence adduced before the election tribunal inasmuch as affidavits of other candidates, there was sufficient material before the election tribunal affording good ground to believe that illegality and/or manipulation was done in counting. Such belief could be 11 either fortified or dislodged only after verifying the truthfulness of allegations by inspection of ballot papers, therefore, in my opinion, it was obligatory upon the election tribunal to order for inspection of ballot papers or recounting of votes to examine truthfulness of allegations made in the election petition. The aforesaid allegations supported by aforesaid evidence could not be rejected by election tribunal at very threshold unless it was tested by inspection of ballot papers, as such view taken by election tribunal, in given facts and circumstances of the case, is wholly erroneous, perverse and not sustainable in the eye of law.
22. In view of foregoing discussion, there can be no scope for doubt to hold that in given facts and circumstances of the case, view taken by election tribunal in refusing the prayer of election petitioner for recounting of votes is wholly erroneous, perverse and cannot be held to be justified under law. Accordingly, the impugned order dated 22.12.2007 passed by Addl. District Judge, Deoria in the election petition in question is hereby quashed. Consequently election petition is restored to its original number. The Election Tribunal is directed to recount the votes of election in question within a period of one month from the date of production of certified copy of the order passed by this Court before election tribunal and election tribunal shall further proceed in accordance with the provisions of law and pass appropriate order on the election petition after recounting of votes. Accordingly, writ petition succeeds and allowed to the extent indicated herein before.
23. There shall be no order as to cost. The parties shall bear their own costs. Date:28.01.2010 LJ/-