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Patna High Court · body

2003 DIGILAW 199 (PAT)

Jai Ram Singh v. State Election Commission

2003-02-20

R.S.GARG

body2003
Judgment 1. Heard learned counsel for the parties. 2. By order dated 4.10.2002 the trial court directed the Returning Officer to submit the ballot boxes. Thereafter an application was filed by the election petitioner that the person who has produced the ballot box be examined, the ballot boxes be opened and the ballot papers be exhibited so that the true picture comes before the Court. The petitioner, after the order was passed for opening the ballot box lodged a protest and submitted that he be given 15 days time to challenge the matter before the High Court but the learned Munsif turned down the request and ordered that the ballot box be opened and if the order passed by him on the earlier occasion is set aside by the High Court then any evidence recorded shall become infructuous. Immediately thereafter P.W. Yogendra Prasad was examined and he exhibited the ballot papers of Booth No. 120 as exhibit Nos. 9 to 9/309 and his cross-examination was thereafter deferred. 3. Being aggrieved by the said order and the manner in which the proceedings has been conducted by the learned Munsif/ Election Tribunal the petitioner has come to this Court. I am really shocked to read the order passed by the learned Munsif. It appears that he does not know the basic fundamentals of the election law. It is trite law that the secrecy of the ballots can not be violated lightly unless a finding is recorded that too, after giving proper opportunity of hearing and leading evidence to the parties that there was bungling, manipulation and illegality in counting the votes either in accepting or rejecting or counting the votes in favour of one or the other. This finding can not be very casually recorded during the pendency of the proceedings. These findings can only be recorded after the parties lead their evidences, close their rights and argue the matter finally and the Court records a finding that the circumstances floating on the surface of the record are shocking to the conscience of the Court/ Election Tribunal and are providing proper, legal and justifiable foundation to direct a recount. In the present matter on 4.10.2002 the learned Munsif directed that the ballot boxes be requisitioned. The present petitioner/returned candidate did not raise an objection to it. In the present matter on 4.10.2002 the learned Munsif directed that the ballot boxes be requisitioned. The present petitioner/returned candidate did not raise an objection to it. Non-raising of objection at that stage to my mind would not make the case of the present petitioner weak. The requisition of the ballot boxes containing the ballot papers and opening of the boxes containing the ballot papers are two different things. 4. Learned counsel for the election petitioner/respondent submitted before me that on 4.10.2002 the petitioner conceded to the recount, therefore, at this stage the petitioner can not be allowed to raise the objection. I requested the learned counsel for the respondents to read any concession or admission made by the present petitioner. Unfortunately the order dated 4.10.2002 does not support the contention of the respondent, it simply is in relation to production of the ballot boxes. When the attention of the learned counsel for the respondent was drawn to last but one paragraph qf the order dated 10.10.2002 that a protest was raised by the present petitioners counsel then he submitted that the Court was not unjustified in directing opening of the boxes because the Court was prima facie satisfied on the affidavit of the election petitioner that present was a case of opening the ballot box and exhibiting the document, however, thereafter he submitted that the Court did not open the ballot box and probably marked the sealed ballot box as exhibit. When his attention was drawn to the last paragraph of the order-sheet learned counsel for the respondents submitted that there appears to be some typographical mistake in that part of the order-sheet. He says that only two ballot boxes were exhibited. For the benefit of proper appreciation and understanding I would prefer to quote the last paragraph of the order-sheet. It reads as under :- "Afterwards the PW.Yogendra Prasad the attendance is filed on behalf of the applicant appear before the Court and examined in chief in which he proved the ballot papers of Booth No. 120 before the Court from Ext. 9 to 9/3Q9 and his cross- examination is referred from tomorrow i.e. on 11.10.02 on the request of all the Ld. counsel of the O.Ps." 5. 9 to 9/3Q9 and his cross- examination is referred from tomorrow i.e. on 11.10.02 on the request of all the Ld. counsel of the O.Ps." 5. A bare perusal and simple understanding of this paragraph would show that not only the ballot box was opened but the ballot papers were taken out and the said ballot papers were marked as Exhibit No. 9 to 9/309 i.e. as many as 309 ballot papers were marked as exhibits. I fail to understand that what persuades the learned counsel for respondent to make an attempt to mislead this Court at every stage and every step, 6. The order passed by the learned Munsif/Election Tribunal is patently illegal and shocks the conscience. It is trite law, as observed earlier that the secrecy of the ballot can not be lightly interfered with unless a finding is recorded that it is required to be violated. In the present case just at the drop of the hat the learned Munsif directed opening of the box and exhibited the ballots. 7. Learned counsel for the respondent also submitted that present was not a case for recount of the ballots at this stage but the Court was simply exhibiting the ballot papers. When asked that after exhibiting the said ballot papers what would be further steps in the matter, whether the ballots would be recounted or not, learned counsel for the respondent submitted that the Court was simply required to see the ballots. I fail to understand the logic behind this argument, when the baliots are exhibited then obviously the Cout would be required to apply its mind to the acceptance and rejection of the ballots. If the Court says that particular ballot is to be rejected or is to be accepted then obviously after doing that the Court would recount the votes. We would come back to square one. The Court would recount the ballot papers without recording the finding that the secrecy of the ballot was or not to be violated. 8. The order passed by the Court below deserves to and is accordingly quashed. The manner in which the respondent has tried to mislead this Court and has obtained an order in his favour from the Court below I think that cost of Rs. 3000/- (Three thousand) must be settled (sicsaddled ?) upon him. 8. The order passed by the Court below deserves to and is accordingly quashed. The manner in which the respondent has tried to mislead this Court and has obtained an order in his favour from the Court below I think that cost of Rs. 3000/- (Three thousand) must be settled (sicsaddled ?) upon him. The cost shall be paid by him before the trial Court on the next date of hearing. If the said cost is not paid then his right to proceed with the election petition shall remain in abeyance. 9. The evidence of P.W. Yogendra Prasad shall not be read, it shall be kept in sealed cover and the ballots would again be placed in the same box and it would be properly sealed by the said Munsif in presence of the counsel for the parties. 10. Let a copy of this order be placed before My Lord Hon ble the Chief Justice so that proper action is taken against the said Munsif and also consider whether election work should be allowed to said Munsif. 11. Let a fax be sent today itself to the learned Munsif that he shall not pass any final orders in the matter till a copy of this order reaches to him.