Kerala High Court
V.C.George vs Jinson Jacob on 3 October, 2018
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940
OP(C).No. 2270 of 2018
AGAINST THE ORDER IN OP 4/2015 of MUNSIFF'S COURT, PALA
PETITIONER/S:
V.C.GEORGE
AGED 70 YEARS
S/O. CHACKO, VETTUCHIRA HOUSE, PUTHUVELI KARA,
PUTHUVELI POST, VELLIYANNOOR VILLAGE, KOTTAYAM.
BY ADV. JOSEPH T.JOHN
RESPONDENT/S:
1 JINSON JACOB
S/O. JACOB, PERUNILATHIL HOUSE, PUTHUVELI KARA,
PUTHUVELI POST, VELLIYANNOOR VILLAGE, KOTTAYAM -
686 636.
2 T.M.DONSIL
S/O.MANIYAN, THEKKEPPARAKKAL HOUSE,
THAMARAKKAD KARA, VELLIYANNOOR POST,
VELLIYANNOOR VILLAGE,KOTTAYAM - 686 634.
3 M.N.BINU
S/O.NARAYANAN, MANKULATHU HOUSE,
PUTHUVELI KARA, PUTHUVELI POST,
VELLIYANNOOR VILLAGE, KOTTAYAM - 686 634.
4 SECRETARY
KERALA STATE ELECTION COMMISSION,
MUSEUM JUNCTION, THIRUVANANTHAPURAM.
ADV. SRI MURALI PURUSHOTHAMAN -SC FOR R4
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.10.2018, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
OP(C).No. 2270 of 2018 2
JUDGMENT
This original petition is filed under Article 227 of the Constitution of India by the defeated candidate in an election held on 05.11.2015 in Veliyannoor Grama Panchayat, Ward 12 constituency, challenging Ext.P4 order. The impugned order states as follows:
" This is an application filed from the side of the petitioner to appoint an Electronic Engineer to verify the electronic voting machine. Heard. While considering the prayer of the petitioner, it is pertinent to note that the very basis of the allegation of the petitioner in the Election Petition is the tampering of the electronic voting machine. Being an election petition it is not possible to decode the Electronic Voting Machine without getting sufficient evidence. Surely, at this stage this application cannot be allowed. Hence, this application is dismissed."
2. Thus, it can be seen that the Court only stated that the application cannot be allowed at this stage. The question before this Court is that whether at this stage, this Court will be justified in interfering with the said order, under Article 227 of the Constitution of India. As OP(C).No. 2270 of 2018 3 back as in 2003, in T.A.Ahammed Kabeer v. A.A.Azeez and Ors. reported in 2003 KHC 1066, the Hon'ble apex court held as follows in para 27 of the said decision:
"Though the inspection of ballot papers is to be allowed sparingly and the Court may refuse the prayer of the defeated candidate for inspection if, in the garb of seeking inspection, he was indulging into a roving enquiry in order to fish out materials to set aside the election or the allegations made in support of such prayer were vague or too generalized to deserve any cognizance".
3. The specific case of the petitioner is that after recording 200 votes, the machine thereafter recorded only the votes in favour of the returned candidate or in other words, all the votes voted in favour of the petitioner after the 200 marks was automatically directed towards the name of the returned candidates.
4. In the above referred T.A.Ahammed Kabeer's case (Supra), the Hon'ble Supreme Court also held that:
"It is true that a recount is not to be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots the Court would permit a recount only upon a clear case in that regard having been made out.".OP(C).No. 2270 of 2018 4
5. On the background of the observations and directions of the Hon'ble Supreme Court of India, only when cogent and reliable evidence is therein for an examination of the ballot machine by experts, the prayer of the petitioner can be allowed. As per the impugned order, it can be seen that the prayer of the petitioner was not dismissed in toto. But the Court was only waiting to see whether required materials are therein to order a petition. Surely, the Court can consider the application only on the dictums and directions given by the Hon'ble Supreme Court, in this regard.
With the above observations, this Original Petition (Civil) is dismissed as not maintainable under Article 227 of the Constitution of India.
Sd/-
K.P.JYOTHINDRANATH JUDGE RK/03.10.2018 OP(C).No. 2270 of 2018 5 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 07/12/2015 IN ELECTION O.P.NO.4/2015 BEFORE THE MUNSIFF'S COURT PALA.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN ELECTION O.P.NO.4/2015 BEFORE THE MUNSIFF'S COURT PALA DATED 20/1/2016.
EXHIBIT P3 TRUE COPY OF THE INTERIM APPLICATION DATED 21/07/2018 IN I.A.NO.1083/2018 IN ELECTION O.P.NO.4/2015 BEFORE THE MUNSIFF'S COURT, PALA.
EXHIBIT P4 TRUE COPY OF THE ORDER IN I.A.NO.1083/2018 IN ELECTION O.P.NO.4/2015 BEFORE THE MUNSIFF'S COURT PALA.
RESPONDENT'S/S EXHIBITS:NIL //TRUE COPY// PA TO JUDGE