Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 723 (GAU)

Takam Sorang v. Markio Tado and Ors.

2010-09-14

P.K.MUSAHARY

body2010
1. Heard Mr. B.L. Singh, learned counsel for the applicant/petitioner and also heard Mr. Muk Pertin, learned counsel, appearing for and on behalf of the opposite parties/respondents. 2. This is election petitioner's application for calling of records of register of voters counter foil (Form 17A) of 38 polling stations of 13-(ST) Itanagar Assembly Constituency from the District Returning Officer-cum-Deputy Commissioner, Yupia, Papum Pare District. 3. The applicant in his Election Petition No.1 (AP)/2009 challenges the election of the Opposite Party No.1 from 20-Tali (ST) Assembly Constituency in the election held on 13th October, 2009 mainly on ground of corrupt practice allegedly committed by way of booth capturing in certain polling stations within the meaning of section 123(8) of the Representation of the People Act, 1951 ('RPAct',). The opposite party No. 1/returned candidate is contesting the aforesaid election petition by filing counter affidavit. Issues have already been framed on the basis of the pleadings of the parties. The applicant/petitioner has examined himself as PW10 and other witnesses in support of his case. The evidence of election petitioner has been closed. 4. In this application, the applicant-election petitioner states that in the evidence of PW10 (petitioner himself), he has specifically deposed that some voters of eight (8) polling stations namely, (i) 2-Ruhi, (ii) 4-Tungmar, (iii) 5-Guchi, (iv) 6-Giba, (v) 7-Roing, (vi) 8-Dotte, (vii) 10-Yarda and (viii) 15-Richik of 20-Tali (ST) Assembly Constituency have double entry in different 38 polling stations of 13 Itanagar(ST) Assembly Constituency and about 30% of the voters of 20-Tali (ST) Assembly Constituency from those eight(8) polling stations, viz., (i) 2- Ruhi, (ii) 4-Tungmar, (III) 5-Guchi, (iv) 6-Giba, (v) 7-Roing, (vi) 8-Dotte, (vii) 10-Yarda and (viii) 15-Richik have cast their votes at 13 Itanagar (ST) Assembly Constituency. It means 30% of the voters did not cast votes at 20-Tali (ST) Assembly Constituency. The names of 38 identified polling stations under 13 (ST) Itanagar Assembly Constituency have been furnished as under : - SI. It means 30% of the voters did not cast votes at 20-Tali (ST) Assembly Constituency. The names of 38 identified polling stations under 13 (ST) Itanagar Assembly Constituency have been furnished as under : - SI. No. Name of the polling stations Total No. of voters 1 E-SECTOR EAST SIDE/ESS SECTOR 59 2 BANKTINALI 37 3 APST COMPLEX/BAZAR AREA 10 4 P-SECTOR WEST SIDE 25 5 A-SECTOR, B-SECTOR/RAJ NIWAS 14 6 C-SECTOR BAZAR AREA 87 7 DONYI POLO VIDHYA BHAWAN 48 8 G-EXTENSION/SP OFFICE/AKASDEEP 26 9 CHANDRA NAGAR BAZAR/POWER 34 10 PWD DIVISION-IV OFFICE COMPLEX 6 11 GOHPUR TINALI AREA 64 12 O-POINT TINALI/NYOKUM LAPANG 17 13 C-SECTOR 28 14 P-SECTOR EAST SIDE 55 15 E-SECTOR FOREST PARKAREA 51 16 DAMSITE 16 17 FOREST COLONY(G-SECTOR) 13 18 NERIST COMPLEX 3 19 PAPU NALLAH/PAPU VILLAGE 150 20 D-SECTOR 15 21 VETTY. OFFICE COMPLEX SOUTH SIDE 17 22 PACHIN COLONY 33 23 BARAPANI/BARPANI BAZAR 132 24 VETTY. OFFICE COMPLEX WESTERN 18 25 PAPU HILL 23 26 PAPU HILL 32 27 CHIMPU/APP. BN COLONY 78 28 VETTY. OFFICE COMPLEX EASTERN 19 29 SENKI VIEW/LOBBY 75 30 D-SECTOR/DOORDARSHAN 16 31 D-SECTOR COLONY 13 32 F-SECTOR COLONY 9 33 POLICE COLONY 7 34 MOWB II EASTERN 5 35 POLO COLONY/COOP APEX BANK 8 36 POLO COLONY/TPT COLONY 40 37 C-SECTOR 12 38 BARAPANI BAZAR AND VETTY 9 TOTAL 1304 5. In order to verify and prove the aforesaid fact, the applicant-election petitioner has filed this application for calling the register of voters counter foil in Form 17A in respect of the above 38-polling stations of 13(ST) Itanagar Assembly Constituency from the District Returning Officer concerned. 6. This application has been opposed vehemently by the opposite party No. 1 by filing counter affidavit. Mr. Pertin, learned counsel appearing for the opposite party No. 1 submits that by filing this application, the election petitioner has challenged the electoral rolls prepared by the District Electoral Officer in respect of 13-Itanagar (ST) Assembly Constituency which, is not permissible at this stage. According to him, if there is any double entry in the electoral rolls, the same should have been objected to at the time when the draft electoral roll was published. Even after publication of final electoral rolls of the Assembly Constituencies concerned, the election petitioner, at no point of time, raised any question regarding such alleged double enrollment of voters. According to him, if there is any double entry in the electoral rolls, the same should have been objected to at the time when the draft electoral roll was published. Even after publication of final electoral rolls of the Assembly Constituencies concerned, the election petitioner, at no point of time, raised any question regarding such alleged double enrollment of voters. He further submits that in the election petition itself, no such allegation was made. This new allegation has been brought to make out a new case for him. He made this allegation only at the time of tendering his evidence before the court. Such new allegation cannot be allowed to remain on records inasmuch as the said allegation is not included in the election petition. The election petitioner, by way of calling for the aforesaid records, is trying to take an opportunity of fishing and roving enquiry, which is not at all permissible under the law. Further more, it is submitted that in the election petition, there is no averment to the effect that double voting took place in certain polling stations. No names have been mentioned in the election petition, who actually cast double votes. No complaint was lodged before the presiding officers of the polling stations in which such double voting or voting by impersonation took place. In case such incident took place, the polling agents of the candidate concerned is to obtain a certificate from the presiding officer on duty but no such certificate has been obtained from the presiding officer or produced before the court. In the deposition, the applicant/petitioner as PW10, admitted by saying that "I did not lodge any complaint before the authority concerned about the double enrollment because I did not know such double enrollment took place". He also admitted that the finad electoral rolls were published by the authorities concerned before the election was held. Mr. Pertin, further submits that by filing this instant application, the election petitioner has challenged the election of the returned candidate of 13-Itanagar (ST) Assembly Constituency without making him a party. This application cannot be treated as a part of the election petition. Mr. Pertin, further submits that by filing this instant application, the election petitioner has challenged the election of the returned candidate of 13-Itanagar (ST) Assembly Constituency without making him a party. This application cannot be treated as a part of the election petition. In fact the applicant filed a similar application on earlier occasion praying for calling of records, i.e., register of voters counter foil (Form 17A) of 38 polling stations of 13-Itanagar (ST) Assembly Constituency from the Returning Officer, which was registered as I.A. No.6 (APO 2010 in E.P. 01(AP)/2009 was rejected by this court vide order dated 31.3.2010 and the present application is the second attempt of the election petitioner for calling the said records. Once the said prayer was rejected by a judicial order passed by this court, the second petition, i.e., the present one cannot be entertained. The learned counsel is trying to impress upon this court that the election petition does not contain the allegation of double entry in electoral rolls and double casting of votes. The election petition is also lacking in material facts and particulars disclosing triable cause of action as laid down in Anil Vasudev Salgaon v. Naresh Kushali Shigaonkar, (2009) 9 SCC 310 . The applicant/election petitioner has to make out a strong case with sufficient material facts and particulars for calling the records, particularly, voters counter foil in Form 17A. The law in regard to calling of electoral rolls and counter foil and inspection thereof has been laid down in Hari Ram v. Hira Singh, AIR 1984 SC 396 wherein it is held that the application for calling the electoral rolls and counter foil should be allowed sparingly and only when sufficient materials are placed before the court. This is because the defeated candidate, in the grab of seeking inspection, should not be allowed to make a roving enquiry in order to fish out materials to set aside the election. Applying the aforesaid law, the present applicant, according to Mr. Pertin, is liable to be rejected with costs. 7. Replying to the arguments advanced by the opposite parties, it has been submitted by Mr. Singh, learned counsel for the applicant/petitioner that the entire allegation in the election petition pertains to booth capturing, one of the corrupt practices, within the meaning of section 123(8) of the RPAct. Pertin, is liable to be rejected with costs. 7. Replying to the arguments advanced by the opposite parties, it has been submitted by Mr. Singh, learned counsel for the applicant/petitioner that the entire allegation in the election petition pertains to booth capturing, one of the corrupt practices, within the meaning of section 123(8) of the RPAct. The petitioner has furnished the names of the polling booths/polling stations where the booth capturing took place. The date, time and the name of main persons involved in the booth capturing preventing the genuine voters from entering into the polling booths and casting their votes have been furnished. Even as to how the polling agents and workers of the returned candidate single handedly cast votes inside the polling booths without allowing the genuine voters to enter and cast their votes has been detailed in the election petition. Statements have been made in the election petition how the complaints were lodged by the agents of the election petitioner with the Assistant Returning Officer and Returning Officer concerned regarding the said booth capturing and other illegal action committed by the returned candidate and his agents and workers. In the election petition averments have also been made how in certain polling stations, the polling staff on duty, were kidnapped along with the EVMs. Those are the material facts and particulars sufficient to constitute the offence under section 123(8) of the RP Act disclosing triable cause of action. The question of obtaining certificate from the presiding officer on duty at the polling stations concerned in regard to aforesaid incident, does not rise because as stated earlier the polling staff were kidnapped and there was none to issue such certificate and even if there was any polling official, he was under the threat and pressure not to issue such certificate. Besides, under the present RP Act and the rules, there is no provision for issuance of or obtaining certificate from the presiding officer. 8. Besides, under the present RP Act and the rules, there is no provision for issuance of or obtaining certificate from the presiding officer. 8. The applicant-election petitioner, in his pursuit to prove the case of booth capturing under section 123(8) of the RP Act, is trying to prove that many voters of 20-Tali (ST) Assembly Constituency did not turn up to cast their votes and they rather cast their votes at various respective polling stations under the 13-Itanagar (ST) Assembly Constituency as they have enrollment as voters in the above eight (8) polling stations under the 20-Tali (ST) Assembly Constituency and as they did not turn up to cast their votes at the above mentioned eight (8) polling stations under 20-Tali (ST) Assembly Constituency. The polling agents and workers of the opposite party No. 1 took full advantage of casting the votes by impersonation in favour of the returned candidate. The petitioner is not trying to prove a case of double voting by some voters. Nor does the election petitioner challenge the election of returned candidate of 13-Itanagar (ST) Assembly Constituency on ground of double enrollment of some voters. According to Mr. Singh, the casting of votes by impersonation comes under the meaning of booth capturing, i.e., one of the offences under corrupt practice under the RP Act. In order to find out whether such impersonation took place in the aforesaid eight (8) polling stations under 20-Tali (ST) Assembly Constituency, it is imperative to inspect and verify from the voters counter foil in Form 17A. The court has power to call for the said records and inspect the same to render effective justice to the parties. He relies upon Fulena Singh v. Vijoy Kr. Sinha, (2009) 5 SCC 290 wherein it is held that inspection of register of voters in Form 17A is permissible where a clear case is made out and it has been shown that the election petitioner is not trying to fish out material to derive support for his case through inspection of such records. 9. I have given my conscious consideration to the aforesaid submissions made by the learned counsel for the parties. 9. I have given my conscious consideration to the aforesaid submissions made by the learned counsel for the parties. What is significant is that the applicant/election petitioner, in his election petition specifically prayed for calling of records of register of voters counter foil (Form 17A) of those 8 polling stations where the booth capturing took place as described in the statement in paragraphs 7 of the election petition along with the EVMs of those 8 polling stations. The prayer portion of the election petition is to be quoted below - "In the premise, it is, therefore, prayed that your Lordships would be pleased to admit this petition and call for the following records (i) and registration of voters counter foil of (Form 17A) of those 8-polling stations described in the statement in paragraph 7 of the petition and (ii) EVMs of those 8-polling stations (iii) Records relating to 20 Tali (ST) Assembly Constituency and issue notice to the opposite parties to show cause as to why those votes cast by booth capturing in 8-polling stations in favour of Shri Markio Tado should not be declared as illegal and the declaration order dated 22.10.2009 declaring Shri Markio Tado PPA candidate as a winning candidate for 20-Tali (ST) A/C is as void and/or why Shri Takam Sorang the petitioner should not be declared as elected candidate for the said 20-Tali (ST) Assembly Constituency and/or why such further or other orders as deemed fit and proper should not be issued; and after hearing the cause or causes shown by the parties make the decision absolute as prayed for. Any your petitioner as in duty bound shall every pray." The said prayer is to be read with the prayer in the present application, which is also quoted below - "In the premises aforesaid, it is respectfully prayed that your Lordship would be pleased to call for records of Register of Voters counter foil (Form 17A) of the above 38-polling stations of 13 (ST) Itanagar Assembly Constituency from the District Returning Officer, i.e., from the Deputy Commissioner, Yupia, Papum Pare District for the ends of justice and or pass such order/orders as your Lordship may deem fit and proper." In my considered view, if the above prayers are read together, one would find no basis to accept the submission of the learned counsel for the opposite party No. 1 that by demanding production of counter foils of voters in Form 17A, the applicant is making endeavour to indulge in roving and fishing inquiry to improve his case. Have there been no such prayer in the election petition for calling of register of voters counter foil in respect of 8-polling stations under 20-Tali (ST) Assembly Constituency, the submissions of the learned counsel for the opposite parties would have been acceptable. The reason for this is simple. The case of casting votes by impersonation at 8-polling stations could be verified or proved if it can be found that some voters, who enrolled themselves in the said 8-polling stations in 20-Tali (ST) Assembly Constituency, cast their votes in the polling stations under 13-(ST) Itanagar Assembly Constituency. 10. What is important for utmost consideration is that the secrecy of ballot which is sacrosanct should not be allowed to be violated and the court should call for the counter foils for voters in Form 17A only when it is absolutely essential to determine the issue. In the present case, the petitioner has all along been making the allegation of booth capturing by the opposite party/returned candidate and his agents and workers, especially in eight polling stations mentioned above. In the present case, the petitioner has all along been making the allegation of booth capturing by the opposite party/returned candidate and his agents and workers, especially in eight polling stations mentioned above. Apart from the manner of booth capturing mentioned in the election petition, the election petitioner, while deposing before this court, made allegation that as because many voters of the aforesaid eight polling booths in the 20-Tali (ST) Assembly Constituency did not turn up to cast their votes and they actually cast their votes in polling stations under 13-Itanagar (ST) Assembly Constituency, the polling agents and workers of the opposite party-returned candidate took the advantage of the situation and cast all the votes of those voters of 13-Itanagar (ST) Assembly Constituency by impersonation in favour of the returned candidate. This allegation sounds to be new one, but when it is closely examined, it also comes under the purview of booth capturing because votes by impersonation is one of the modus operandi adopted towards accomplishment of securing votes by use of illegal method or illegal resource. The election must be conducted in a free and fair manner without use of force or unfair means. It is no doubt necessary to maintain the secrecy of ballots or votes but at the same time, it is also absolutely necessary to conduct the election in a free and fair manner for the sake of preserving healthy democracy. Illegal method should not be a media for securing ballot. In my considered view, the importance of secrecy of votes should not undermine the need for conduct of free and fair election. The secrecy of ballot would be meaningful only when election is conducted in a free and fair manner. It is for this reason in certain cases the court is to call for the confidential records like the register of voters counter foils in Form 17A. In order to examine whether there was a case of casting of votes by impersonation as alleged by the election petitioner, and as to whether free and fair election was held, it has become absolutely necessary to call for the said records. Court, in such cases, cannot be prevented from calling for the said records pertaining to Form 17A. One should not take it granted that once the Form 17A records are called, it would automatically and totally violate the secrecy of votes. Court, in such cases, cannot be prevented from calling for the said records pertaining to Form 17A. One should not take it granted that once the Form 17A records are called, it would automatically and totally violate the secrecy of votes. Such records can be examined by the court in camera in presence of the counsel for the parties without providing any opportunity of having a look at them by the members of the general public in the court room or premises. In other words, court can take due care for preservation of secrecy of votes. In Hari Ram's case (supra), it has been held in Para 7 of the judgment that "so far as the counter foils and marked copy of the electoral rolls are concerned, there was a strict prohibition for opening of these documents unless the court was fully satisfied that a cast iron case made out". 11. The counter foils and marked copy of the electoral rolls or Form 17A are part of the official records maintained by the electoral officer. The court, for its satisfaction, may call for the said records for coming to a conclusion as to whether votes were cast by impersonation and materially affecting the result of the defeated candidate/petitioner. The official records, in this regard, would be the most reliable evidence and once it is found that such voting Joy impersonation really took place it would help the court to decide the fate of the parties concerned. In my considered view, the applicant-election petitioner has been able to make out a cast iron case for calling the said records. I also hold the view that for coming to a correct and just decision, the inspection of register of voters counter foil in Form 17A has become absolutely necessary. In view of the decision in Fulena Singh case (supra), wherein it has been held that it would be appropriate to decide main election petition after inspection of register of votes in Form 17A and finally resolving the lis before the parties, I have to hold that the calling of aforesaid records has become imperative and inevitable. 12. The above discussions and consideration impel me to allow this application. Accordingly, the same stands allowed. 12. The above discussions and consideration impel me to allow this application. Accordingly, the same stands allowed. Consequently I order calling for records of register of voters counter foil (Form 17A) of 38-polling stations of 13-Itanagar (ST) Assembly Constituency as mentioned in paragraph 2 of this application, from the District Returning Officer, i.e., from the Deputy Commissioner, Yupia, Papum Pare District.