Madhya Pradesh High Court
Yadvendra Singh vs Nagendra Singh on 21 April, 2020
Equivalent citations: AIR 2020 MADHYA PRADESH 106, AIRONLINE 2020 MP 511
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH : RAJEEV KUMAR DUBEY, J
Election Petition No.10/2019
Yadvendra Singh
Vs.
Nagendra Singh & Another
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Shri Pramendra Singh, learned counsel for the petitioner.
Shri Arpan Pawar, learned counsel for the respondent No.1.
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ORDER
Reserved on 27/02/2020 Passed on 21/04/2020 This petition has been filed under Section 80, 100(1)(d), (iii) & (iv) of the Representative of Peoples Act, 1951 (hereinafter referred to as the "Act") for having the election of the Respondent No.1 (returned candidate), from 64 Nagod Assembly Constituency held on 20/12/2018, (in which result was declared on 11/12/2018 ) declared as void.
2. It is undisputed that during the last Madhya Pradesh Legislative Assembly Election, held in the month of December 2018, the petitioner contested from 64, Nagod Legislative Assembly, District Satna, on the ticket of the Indian National Congress and respondent No.1 on the ticket of the Bharatiya Janata Party. Apart from the petitioner and respondent No.1, 13 other candidates also contested the election from 64, Nagod Legislative Assembly. The polling was held on 28/11/2018 and the result was declared on 11/12/2018. In 64 Nagod Legislative Assembly, there were 2,14,646 voters and 278 polling stations and total valid votes polled were 1,66,780, out of which the petitioner received 53,402 votes, whereas the respondent No.1 received 54,637 votes and was declared elected since respondent No.1 Digitally signed by ANURAG SONI Date: 21/04/2020 14:14:52 2 secured 1,235 more votes than the petitioner and was accordingly declared the returned candidate from 64, Nagod Legislative Assembly.
3. Apart from aforesaid undisputed facts, briefly the case of the petitioner is that he had this apprehension that the Electronic Voting Machines (EVMs) used in the voters' awareness program were tampered with. The election workers belonging to the Indian National Congress Party demanded First Level Checking (F.L.C.) as well as technical inspection of those machines, but the same was denied by the Agency. The Election Commission had issued the instruction vide letter Nos.51/8/7/2017-EMS dated 29/09/2017 and 51/8T&A/2018-EMPS dated 09/10/2018 that the Electronic Voting Machines (EVMs) used in voters awareness program, will not be used in the voting and if, that Electronic Voting Machines (EVMs) is used in the voting, before sending that machine for using the same in voting, a fresh F.S.L., as well as a randomization process, will be conducted by the agency in the presence of representatives of recognized political parties as per instructions of the commission. But, before sending these machines for voting, F.L.C. and the randomization process were not conducted by the agency. From the letter of election officer dated 24/11/2018 & 29/11/2018, it was learnt that the EVMs unit ID No. BVTEC02860, BVTEC50564, BVTEC02223, BVTEC02331, BVTEC00542, BVTEC04710, BVTEC50616, BVTEC00291, BVTEC02934, BVTEC02887, BVTEC04710, BVTEC50616, BVTEC00291, BVTEC02934, BVTEC02887, BVTEC02892, BVTEC04299, BVTEC04394, BVTEC04399 and BCUAD29757, BCUAD30241, BCUAD35531, BCUAD35567 & BCUAD27695, which had been earlier sent for the Voter Awareness Campaign were used for voting in 64 Nagod Assembly Constituency. It is further averred that the respondent No.1, returned candidate who was the Member of Parliament from Khajuraho Parliamentary seat at the time of election and had also been a minister in the Madhya Pradesh Government in the past, by managing the Local Government and respondent No.2, got the EMVs earlier used for Voter Awareness Campaign allocated for polling after tampering these EMVs, while the use of these EMVs in the polling was Digitally signed by ANURAG SONI Date: 21/04/2020 14:14:52 3 totally restricted. As a result of aforesaid corrupt practice, respondent No.1 won the election with the help of respondent No.2. So, the election of respondent No.1 from 64, Nagod Legislative Assembly be declared void.
4. The respondent No.1 in his reply denied from all the allegation and submitted that neither he nor his election agent or any other person committed any corrupt practice in the said election. There is no violation of any of the provisions of the Act. The petitioner without any material facts and particulars wrongly alleged that the EVM's were sent for voting, without the F.L.C. (First Level Checking) and randomization. The complaint made by Sabir Khan was enquired by the officials and was found incorrect, therefore, the District Election Officer, Satna, rejected the said complaint. Respondent no.1 had no role in allotment of EVMs. The election in 64, Nagod Legislative Assembly was held in a free and fair manner and no complaint was ever made to the Election Commission of India or to the State Election Commission regarding allegations as mentioned in the present petition. It is also false that the EVMs were allocated on the direction of respondent No.1. The petitioner filed this petition without any material or documents, so is liable to be dismissed.
5. On the basis of the pleadings, of both the parties, the following issues have been framed by this Court for the just decision of the case :-
1. Whether, there was any direction by the election commission that the EVMs (Electronic Voting Machines) which were used for voter awareness campaign would not be used in the election and in case they are allocated for voting, a fresh First Level Checking (F.L.C.), as well as randomisation process, would be conducted in the presence of representatives of recognised political party ?
2. Whether, during the process of election of Nagod-64, Assembly Constituency held on 28.11.2018, the Electoral Officer used EVMs (Electronic Voting Machines) and VVPAT (Voter Verifiable Paper Audit Trail) (numbers of which are mentioned in para 13 of election petition) which had earlier been used for voter awareness campaign at the instance of respondent No.1 after tampering with them without FLC and randomisation process by the agency before sending those machines for voting ?
3. Whether the election of respondent No.1 from Nagod-64, Assembly Constituency can be declared as null and void on the basis of allegations made by the petitioner in his petition ?Digitally signed by ANURAG SONI Date: 21/04/2020 14:14:52 4
4. Relief and Costs ?
6. In relation to the above issues, my findings are as follows:-
Issue No.1
7. However, in this regard, the petitioner Yadvendra Singh has deposed before Court that 250 EVMs were sent for mock poll before the election by the Election Commission. JP Dhanopia, Election in-charge of Madhya Pradesh Congress party wrote a letter to the Election Commission and prayed that such EVMs used in mock polls should not be used during the actual polling. On that Election Commission, Bhopal issued instructions by writing a letter to his election officials that EVMs which were used for voter awareness campaigns should not be used during the actual polling and the same should be kept separate. Even then, 18 such machines which had earlier been used in mock polls were used by the Election Officer Nagod Legislative Assembly at the time of the actual elections and his witness Sabir Khan PW-2 also reiterated the same.
8. But, the petitioner has not filed any letter of Election Commission to that effect in support of his statement. On the contrary, in the letter (Ex.P-
11), written by the Deputy Chief Election Commissioner M.P., which has been filed by the petitioner himself in support of his petition, it is only mentioned that according to the letter of election commission dated 09/10/2018, in Assembly Constituencies having 100 or more polling stations, it shall be mandatory for the D.E.O. to ensure that at least five per cent of the EVMs and VVPATs, which were taken out for training and awareness purpose is re-introduced as a poll-day reserve, after de novo FLC, randomisation, candidate setting etc., carried out as per the extant instructions of the commission. So, from the instructions of the Election Commission as mentioned in the letter (Ex.P-11), it is quite clear that in Assembly Constituencies having 100 or more polling stations, EVMs which had earlier been used for voter awareness campaigns could be used for polling. The only condition was to keep these machines as reserved and were Digitally signed by ANURAG SONI Date: 21/04/2020 14:14:52 5 to be used only after randomization. It is undisputed that the Nagod Assembly Constituency had 210 polling stations.
9. On the basis of the above discussion, this Court holds that there were no instructions of the Election Commission that such machines which have been used for voter awareness campaign should not be used in the actual election of Nagod Assembly Constituency and it was only directed that such machines could be used in the actual election after conduction of a fresh First Level Checking (F.L.C.), as well as a randomisation process, in the presence of representatives of recognised political parties.
Issue No.2
10. The burden of proving this issue was on the petitioner. In this regard, the petitioner has pleaded in para 13 & 14 of his election petition and petitioner Yadvendra Singh (PW-1) has stated in his Court statement that the Election Commission, Bhopal had written a letter to its officials directing them to not to use EVM machines used for voter awareness campaign during the actual polling. Despite this, the Election Officer of 64 Nagod Assembly used 18 such machines in actual voting, without informing him or his election agents. Sabir Khan, (PW-2) deposed that before the voting, it was objected that such voting machines, which were used for voter awareness campaign, should not be used during the actual polling. Even then as many as 18 such machines were used at the time of actual voting, the programming of those machines was changed and they were tampered with and thus the election was rigged, due to which petitioner Yadavindra Singh lost the election. In this regard petitioner has also filed the list of such EVMs, which were used in the election, EVMs which were kept reserved out of such EVMs and the list of those EVMs which were used in the voter awareness campaign (Ex.P-5 to Ex.P-7 respectively).
11. But, Sabir Khan, (PW-2) has admitted in para-9 of his cross- examination that during the course of the second randomization process, he became aware that voting machines that had earlier been used for training and awareness purposes, were being sent for use in actual polling. EVMs that were earlier used for training work are also to be used at the time of Digitally signed by ANURAG SONI Date: 21/04/2020 14:14:52 6 actual polling. Despite this, he did not make any complaint to the State Election Commission till the counting of votes began which shows that the petitioner had prior knowledge about this. The process of the second randomization of those machines was also made before the applicant's agent, Sabir Khan. Even, from the first randomization report (Ex.D-1) filed by the respondent no.1, it appears that first randomization was also done before the applicant's agent, Sabir Khan.
12. From the above discussion, however, it is proved that there were some EVMs units, which had been used in the voter awareness program in the past and were kept in reserve to be later used in the actual voting, but those machines were used only after the process of randomization. Hence, it cannot be said that the respondent no.2 wrongly used those machines in polling against the instruction of the election Commission.
13. As regards the allegation that some of the electronic Voting Machines were tampered with by the officials under the undue influence of respondent no.1, it is evident from the statements of petitioner Yadvendra Singh (PW-1) and his witness Sabir Khan (PW-2) that they have no personal knowledge regarding the tampering in the EVMs. In this regard their statements are merely based on assumption. They could not tell in what manner such manipulation took place; on what date and time it took place or who committed that manipulation.
14. According, to Section 49E of Conduct of Elections Rules, 1961, immediately before the commencement of the poll, the presiding officer shall demonstrate to the polling agents and other persons present that no voter has been already recorded in the voting machine and the presiding officer shall affix his own signature on the paper seal and obtain thereon the signature of such of the polling agents present as the desirous of affixing the same. The presiding officer shall thereafter fix the paper seal so signed in the space meant therefor in the control unit of the voting machine and shall secure and seal the same. The seal used for securing the control unit shall be fixed in such manner that after the unit has been sealed, it is not possible to press the "result button" without breaking the seal. Petitioner Yadvendra Digitally signed by ANURAG SONI Date: 21/04/2020 14:14:52 7 Singh has admitted in his cross-examination that one of his agents was present at every polling booth in the election. It is not the case of the petitioner that the machines which were allegedly tampered with were not shown by the polling officer to the polling agent of the petitioner before being used for voting or such machines were not sealed or the seal of those machines was found broken at the time of counting of votes or any other manipulation was found in those machines.
15. The petitioner Yadvendra Singh in his cross-examination also admitted that before the counting of votes, he did not make any complaint to the Election Officer about tampering in the voting machines. If in fact any tampering was done by the Election Officer in the voting machines under the influence of the respondent no.1, then the petitioner would have filed the complaint before Election Commission, at the time of voting or before the counting of votes started which shows that the petitioner has objected in this regard only because he lost the election, there is no solid basis behind it.
16. Though, from the above discussion this Court found proved that during the process of election of 64 Nagod Assembly Constituency held on 28.11.2018, the Electoral Officer used some EVMs (Electronic Voting Machines) and VVPAT (Voter Verifiable Paper Audit Trail), which had earlier been used for voter awareness campaign. But, petitioner has failed to prove that such EVMs were used in the polling at the instance of respondent No.1 after tampering with them without FLC and randomisation process by the agency before sending those machines for voting.
Issue No. 317. As discussed above, petitioner has failed to prove that there were instructions of the Election Commission that such machines which have been used in the voter awareness campaign should not be used in the actual election of Nagod Assembly Constituency. It only directed that such machines can be used in the actual election, after conduction of a fresh First Level Checking (F.L.C.), as well as a randomisation process, in the presence of representatives of recognised political parties. Although, it is proved that some of the EVMs which had been used in the voter awareness program in Digitally signed by ANURAG SONI Date: 21/04/2020 14:14:52 8 the past and were kept in reserve later to be used in the actual voting, but those machines were used only after the process of randomization. Hence, it cannot be said that the respondent no.2 wrongly used those machines in polling against the instruction of the election Commission.
18. Petitioner has also failed to prove that during the process of election of 64 Nagod Assembly Constituency held on 28.11.2018, the Electoral Officer used some EVMs (Electronic Voting Machines) and VVPAT (Voter Verifiable Paper Audit Trail) earlier used for voter awareness campaign in the actual polls at the instance of respondent No.1 after tampering with it without LC and randomisation process by the agency before sending those machines for voting. Therefore, the petitioner is not entitled to get the election of respondent no.1 declared void. Hence, his petition deserves to be dismissed.
Issue no.4 Relief and cost
19. (i) As discussed above the petitioner has failed to make any case for grant of relief, resultantly this election petition referred by petitioner Yadvendra Singh challenging election of returned candidate respondent no. 1 Nagendra Singh as a Member of 64 Nagod Assembly Constituency held on 20/12/2018, (in which result was declared on 11/12/2018 ) is hereby dismissed.
(ii) The petitioners shall bear his cost of proceedings and of respondent no.1.
(iii) Advocate fee shall payable if certified or as per the table whichever is the minimum.
20. The office is directed to send the certified copy of this order to the Election Commission and the Speaker of Madhya Pradesh Legislative Assembly forthwith as per Section 103 of the Act.
Certified copy as per rules.
(Rajeev Kumar Dubey) JUDGE as/-
Digitally signed by ANURAG SONI Date: 21/04/2020 14:14:52