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2004 DIGILAW 885 (PAT)

Raj Kumar v. Bihar State Election, Commission

2004-09-01

R.S.GARG

body2004
Judgment 1. Heard learned counsel for the petitioner, learned counsel for the Election Commission and learned counsel for respondent no. 6/original election petitioner. 2. The petitioner is a returned candidate. He being aggrieved by the order dated 10.6.2003 passed in Election Case No. 7 of 2001 by the learned Munsif, Hilsa, has come to this Court. The facts leading to this writ application are that in the election of Panchayat, the election petitioner and a number of others were the contesting candidates. The original petitioner, Anil Kumar filed an election petition against the returned candidate Raj Kumar and others making serious allegations that the votes cast in favour of the Election petitioner Anil Kumar son of Baleshwar Prasad were wrongly counted in favour of one Anil Kumar son of Baiju Mahto. It appears the said Anil Kumar son of Baiju Mahto has not been joined as party respondent in this writ application. 3. True it is that the said Anil Kumar son of Baiju Mahto ought to have been joined as party respondent but as the contest is between the petitioner and the respondent no. 6, non-joinder of said Anil Mahto is not going to affect the decision. i proceed to decide the matter on merit. 4. By order dated 10.6.2003, the learned Court below has observed that the allegations in the election petition were that 33 votes which were cast in favour of the election petitioner were illegally counted in favour of Anil Kumar (Mahto) son of Baiju Mahto. The Court below has relied upon the written statement of said Anil Mahto to record a finding that the said Anil Mahto admitted in his written statement that all the votes counted in his favour of Booth no. 154 Ward No. 10 were not cast in his favour. On the basis of that, the learned Court below has observed that the said 33 votes be recounted. Thereafter, the Court below recorded the concession of both the parties that two senior advocates, namely, Shri Dwarika Prasad and Shri Narayan Sharma be requested to examine the said votes/ballots. 5. 154 Ward No. 10 were not cast in his favour. On the basis of that, the learned Court below has observed that the said 33 votes be recounted. Thereafter, the Court below recorded the concession of both the parties that two senior advocates, namely, Shri Dwarika Prasad and Shri Narayan Sharma be requested to examine the said votes/ballots. 5. Learned counsel for the petitioner submitted that the approach of the Court below is patently illegal because it has relied upon the allegations made in the writ statement less appreciating that the said Anil Mahto has not been examined as a party witness and no opportunity to cross examine has been afforded to the present writ petitioner, It is also submitted that unless the findings are recorded by the Court that there were bogus counting or mistake in counting of votes, the secrecy of votes could not be violated in such easy manner. 6. Learned counsel for the contesting respondent on the other hand submitted that as the issue was in relation to counting of those 33 votes and there was no dispute between the parties that the said disputes can be finally disposed of by examining the votes, the Court below was not unjustified in issuing such a direction. 7. In the opinion of this Court, the order passed by the Court below is patently illegal and violates the very requirement of the election law. When an allegation is made by somebody that the votes were not properly counted, there was bogus voting and there was mistake of identity, then such evidence should be brought on the record and the trial court should record a finding even on preponderence of probability that the allegations made by the election petitioner in fact are proper and stand proved. Simply on the basis of some submissions made by a defendant who does not appear in the witness box the court below cannot record a finding that the secrecy of the votes should be violated in the manner like this. Even otherwise, the order of the court below cannot be approved because the Court below has directed that the ballot box be opened and votes be examined by two counsel. Under the law, the votes were to be counted and examined/checked by the Presiding Officer of the Court himself. It is a judicial act and it cannot be delegated to a counsel. 8. Under the law, the votes were to be counted and examined/checked by the Presiding Officer of the Court himself. It is a judicial act and it cannot be delegated to a counsel. 8. As the learned court below has not recorded any finding on merit of the matter, I hold that the order of the court below is illegal. The same is set aside. The matter is remitted to the Court below with a direction that in accordance with law it shall proceed to hear the parties, and shall record findings in accordance with law. It is expected of the learned Court below that without being unnecessary influenced by any observation in this Order, it shall pro- , ceed to decide the matter in accordance with law, preferably within two months from the date of appearance of the parties. 9. The application is allowed.