Kerala High Court
Adv.Rojas Sebastian vs The Election Commissioner on 23 March, 2021
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943
WP(C).No.954 OF 2021(T)
PETITIONER:
ADV.ROJAS SEBASTIAN
AGED 44 YEARS
S/O. SEBASTIAN,
CHEMBOTHANADIYIL HOUSE,
KOOMANTHODE P. O,
KANNUR DISTRICT.
BY ADVS.
SRI.P.V.ANOOP
SRI.PHIJO PRADEESH PHILIP
SRI.M.P.PRIYESHKUMAR
SRI.K.V.SREERAJ
SRI.GRASHIOUS KURIAKOSE (SR.)
RESPONDENTS:
1 THE ELECTION COMMISSIONER
ELECTION FOR LOCAL BODIES,
VIKAS BHAVAN,
THIRUVANANTHAPURAM - 695 033.
2 THE RETURNING OFFICER
(DISTRICT COLLECTOR)
THILLANKERI DIVISION,
KANNUR DISTRICT,
PANCHAYAT, COLLECTORATE,
KANNUR - 670 702.
3 DEPUTY INSPECTOR GENERAL OF POLICE
NORTH RANGE KANNUR,
KANNUR, PIN - 670 001.
4 THE SUPERINTENDENT OF POLICE
OFFICE OF THE SUPERINTENDENT OF POLICE,
KANNUR, PIN - 670 001.
5 STATION HOUSE OFFICER
MUZHUKKUNNU POLICE STATION,
KANNUR DISTRICT,
PIN - 670 703.
W.P(C).No.954 OF 2021
2
R1 - SRI. KODOTH SRIDHARAN, SC, STATE ELECTION
COMMISSION, KERALA
R3 - R5 - SRI. SUNIL NATH N.B- GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P(C).No.954 OF 2021
3
JUDGMENT
The petitioner, who is the Chief Election Agent of Miss Lynda James, who is one of the contesting candidates of Thillankeri Division of Kannur District Panchayat in the special election scheduled on 21.01.2021, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents to take necessary steps to deploy sufficient armed police at sensitive polling booths, arrange intensive police patrolling in and around the sensitive polling booths, make arrangements to permit only voters with valid identity card to enter the polling booth, erect barricades to control the entry to the polling booth, arrange web casting of the polling for tracing out illegal casting of votes by way of impersonation and to prevent the incident of booth capturing as per Exts.P1 to P4 representations. The petitioner has also sought for a writ of mandamus commanding respondents 3 to 5 to provide adequate police protection for the life of the polling agents and voters before, during and after the election to Thillankeri Division of Kannur District Panchayat in Kannur District proposed to be held on 21.01.2021; a writ of mandamus commanding the 2 nd respondent W.P(C).No.954 OF 2021 4 to direct the Presiding Officers to allow only the near relatives of the persons who are requesting for open votes to substitute the voters; and a writ of mandamus commanding the respondents to take all necessary steps for conducting fair and transparent election at Thillankeri Division of Kannur District Panchayat in Kannur District.
2. On 13.01.2021, when this writ petition came up for admission, the learned Standing Counsel for the State Election Commission and also the learned Government Pleader sought time to get instructions.
3. A statement has been filed on behalf of the 1st respondent dated 15.01.2021, which was followed by an additional statement dated 18.01.2021.
4. The learned Government Pleader has placed on record, the report dated 15.01.2021 of the 5 th respondent Station House Officer.
5. On 19.01.2021, when this writ petition came up for consideration, this Court passed an interim order. Paragraphs 7 to 13 of that interim order read thus:
W.P(C).No.954 OF 2021 5 "7. The subject election to the constituency has been notified as contemplated under Section 68 of the Kerala Panchayat Raj Act, 1994 due to death of a candidate. In the statement filed on behalf of the 1 st respondent, it is stated that, as per letter No.G1(a)-683/2021/C dated 07.01.2021 of the District Police Chief, Kannur, it has been reported that all the 64 polling booths in Thillankeri Division of Kannur District are sensitive. Hence, as per letter No.A6-25130-2019-SEC dated 13.01.2021, the State Election Commission has granted sanction to the District Election Officer, Kannur, to arrange videography in all polling booths in the said division, at the expense of the Election Commission. Strict instructions have been given to the Police officials to take a stringent and instantaneous action in accordance with law to prevent bogus voting, impersonation, booth capturing and other electoral offences. The specific stand taken by the 1 st respondent in the statement dated 15.01.2021 is that steps are being taken, with the assistance of the State machinery and the Police, to ensure a free and fair election.
8. In the report filed by the 5 th respondent Station House Officer, it is stated that 25 polling booths have already been declared as sensitive booths and the question as to whether web casting is possible is under consideration. In the said report, the 5th respondent has stated that measures have already been taken to ensure a free and fair election in that constituency.
9. The learned Standing Counsel for the State Election Commission submitted that accredited videographers shall W.P(C).No.954 OF 2021 6 be deployed inside and outside all the 64 polling booths, without compromising the secrecy of voting. No videography shall be conducted covering the voting compartment. Companion to an elector shall be permitted strictly in terms of Rule 36 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995.
10. The learned Government Pleader submitted that respondents 3 to 5 shall take necessary steps to ensure a free and fair election in Thillankeri Division of Kannur District Panchayat by extending adequate and effective police protection.
11. The learned Senior Counsel for the petitioner would submit that respondents 3 to 5 may be directed to render adequate and effective police protection to the lives of the voters and polling agents, before, during and after the election, which is scheduled to be held on 21.01.2021 and respondents 1 and 2 may be directed to make necessary arrangements to permit only voters with valid identity card to enter the polling booth.
12. From the submissions made by the learned counsel on both sides and perusing the pleadings and materials on record, this Court finds that since all the 64 polling booths in Thillankeri Division of Kannur District Panchayat are sensitive, the 1st respondent State Election Commission has already granted sanction to the District Election Officer, Kannur to arrange videography in all polling booths, at the expense of the Election Commission. On account of technical issues, web casting is not possible.
13. Having considered the submissions made by the W.P(C).No.954 OF 2021 7 learned counsel on both sides and taking note of the pleadings and materials on record, this Court deem it appropriate to grant an interim order directing respondents 3 to 5 to render adequate and effective police protection for the smooth conduct of election to Thillankeri Division of Kannur District Panchayat, proposed to be held on 21.01.2021, by extending protection to the life of the officials deputed by respondents 1 and 2, the polling agents and the voters before, during and after the election. Respondents 1 and 2 shall deploy accredited videographers inside and outside all the 64 polling booths, without compromising the secrecy of voting. Respondents 1 to 5 shall ensure that only voters with valid identity card are permitted to enter the polling booth and there is no bogus voting, impersonation, booth capturing and other electoral offences. Companion to an elector shall be permitted strictly in terms of Rule 36 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995.
Respondents 3 to 5 and their subordinates shall take necessary steps to ensure that there is no threat to law and order in the locality, in connection with the conduct of election as proposed."
6. On 11.02.2021, the petitioner has filed I.A No.4 of 2021, seeking an order to accept Ext.P5 complaint dated 29.01.2021 filed before the 1st respondent as an additional document. In Ext.P5 complaint, it is alleged that the interim order of this Court dated 19.01.2021 was not complied with in respect of certain polling W.P(C).No.954 OF 2021 8 stations referred to in pages 2 and 3 of that complaint.
7. Heard the learned counsel for the petitioner, the learned Standing Counsel appearing for respondents 1 and 2 and the learned Government Pleader for respondents 3 to 5.
8. During the course of arguments, the learned counsel for the petitioner would submit that the petitioner has already filed Ext.P5 complaint before the 1st respondent Election Commission for taking necessary action against the concerned Returning Officer, Additional District Magistrate, Presiding Officers and Polling Officers, etc., which is now pending consideration. The allegations in Ext.P5 complaint dated 29.01.2021 submitted before the 1 st respondent is regarding non-compliance of the directions contained in the orders of this Court dated 19.01.2021 in respect of certain polling booths.
9. In case the petitioner has a case that there is willful disobedience on the part of respondents 1 to 5 in complying with the directions contained in the order of this Court dated 19.01.2021, he has to invoke the provisions under the Contempt of Courts Act, 1971.
10. After arguing for some time, the learned counsel for the W.P(C).No.954 OF 2021 9 petitioner seeks permission to withdraw this writ petition, without prejudice to the right of the petitioner to invoke the provisions under the Contempt of Courts Act, 1971, if found necessary.
Based on the above submission made by the learned counsel for the petitioner, this writ petition is dismissed as withdrawn, without prejudice to the aforesaid right of the petitioner.
Sd/-
ANIL K. NARENDRAN JUDGE SPR W.P(C).No.954 OF 2021 10 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED
11.01.2021 SUBMITTED BEFORE THE 3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 11.01.2021 SUBMITTED BEFORE THE 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT DATED 11.01.2021.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION BEFORE THE 1ST RESPONDENT DATED 11.01.2021.
EXHIBIT P5 TRUE COPY OF THE COMPLAINT DATED 29/01/2021 SUBMITTED BEFORE THE FIRST RESPONDENT.
RESPONDENT'S/S EXHIBITS:
ANNEXURE R1(a) THE PHOTOCOPY OF THE REPORT NO.P3- 10446/2020 OF THE 2ND RESPONDENT SUBMITTED BEFORE THE 1ST RESPONDENT ON 30.01.2021.