VALAPPIL RAJAN Vs. MADICHERRY GANGADHARAN

JUDGEMENT

(1.) Can summons be issued to a person cited as a witness in an election petition in multiple addresses simultaneously Such a procedure is attempted to be resorted to in a bid to establish 'double voting' in the election petition. The election of the returned candidate is called in question under Section 102(l)(d)(iii) of the Kerala Panchayath Raj Act, 1994 ('the Act' for short). The defeated candidate pleads in the election petition that there has been an improper reception of void votes tilting the result of the election. The defeated candidate asserts that sixteen voters have cast double votes and that their votes are liable to be eschewed. Reliance is placed on Section 76(3) of the Act to contend that no person shall vote at an election in more than one constituency of the same level. The defeated candidate points out that the sixteen voters have two residential addresses and spread over two constituencies. The sixteen voters have been cited as witnesses in the election petition and summons sought to be served in their two addresses simultaneously. The court below has by the order impugned allowed the application put in by the defeated candidate in this regard which is challenged by the returned candidate.

(2.) I heard Mr. P.V. Kunhikrishnan, Advocate on behalf of the returned candidate and Mr. R. Sudhish, Advocate on behalf of the defeated candidate in this original petition.

(3.) It is true that an election petition shall be tried by the court as nearly, as may be, in accordance with the Code of Civil Procedure, 1908 (the CPC for short) as per Section 94 of the Act. But neither Order 16 of the CPC nor Rule 69 of the Civil Rules of Practice, 1971 (Kerala) permit issue of summons in multiple addresses simultaneously. The witnesses are summoned to court to prove that they have voted in more than one constituency in order to establish the ground of double voting. It is possible that a voter may have a residential address in the constituency where he works and another in the constituency where his ancestral home is situated. The fact that summons were served in two addresses cannot lead to the conclusion that the witnesses have cast double votes in two constituencies. Steps can be taken to serve summons in the other known address of the witness only if it is not served in the address furnished. The practice of issuing summons to the witnesses in multiple addresses simultaneously is a procedure unknown to law. The process of court cannot be misused by any of the parties to create evidence and the factum of double voting has to be proved by independent evidence only. The impugned order is set aside and I.A. No. 714/2011 in O.P. (Election) No. 126/2010 on the file of the Court of the Principal Munsiff-I of Kozhikode is dismissed. The defeated candidate is permitted to take summons to the sixteen voters cited as witnesses in one separate address only initially. Only if those witnesses cannot be served in such address can summons be taken in their other known address.