REJINA C Vs. G SUKUMARI

JUDGEMENT

(1.) Concurrent decision rendered by the two Courts below holding that the election of the revision petitioner, the returned candidate, from ward No. 19 of Neyyattinkara Municipality is vitiated, for the reason of double voting cast in her favour, and thereby the votes secured by her are less than that of the first respondent, the petitioner, who had impeached her election by filing an election petition, is challenged in the revision. Revision petitioner and first respondent and three others contested the election from ward No. 19 of the Neyyattinkara Municipality for the election held on 24/09/2005. Revision petitioner secured 404 votes and the first respondent 403 votes after counting of votes and consequently, the petitioner who secured the majority by one vote was declared elected. His election was impeached by the first respondent contending that three voters whose names and particulars were given had cast double voting in favour of the returned candidate and also exercised their franchise in another ward in the same Municipality. Revision petitioner resisted that application by filing a counter statement. In the enquiry on the petition the three voters who are imputed to have exercised double voting were examined as PWs 1 to 3 and X1 to X6 were also exhibited as part of the documentary evidence. On the orders issued by the Court the voting machines were decoded to find out for whom these three voters, PWs 1 to 3, had exercised their votes and also whether they had cast their votes in more than one ward. On the finding made from decoding of the voting machines, and also appreciating the evidence tendered by PWs 1 to 3, the learned Munsiff came to the conclusion that all three of them had exercised double voting and two of them (PWs 1 & 2) had cast their votes in favour of the revision petitioner, returned candidate, and PW 3 in favour of another candidate who had contested the election. Since double voting cast by a voter in more than one ward as per the mandate of the Municipalities Act, render both the votes void it was found after reducing the two votes cast by such voters, PWs 1 & 2, in favour of the revision petitioner the votes got by him was less by one vote from the votes secured by the petitioner in the election petition, first respondent in the revision. On such finding the learned Munsiff declared the election of the revision / petitioner as void, and the first respondent was declared as duly elected candidate from ward No. 19 of the Neyyattinkara Municipality. Challenge against that decision by way of appeal by the returned candidate, revision petitioner, before the District Court was not successful as the learned District Judge after reappreciating the materials concurred with the finding entered by the Court below. Aggrieved by the concurrent decision so rendered, impeaching the propriety and correctness of the order / judgment of both the Courts below, the returned candidate has filed this revision.

(2.) I heard the counsel on both sides.

(3.) The only point that was canvassed to assail the concurrent decision rendered by the two Courts is that no evidence was let in as to the competency of the expert who was engaged for decoding the voting machines and so much so, the finding entered by the Court below cannot be accepted as there is no conclusive and safe evidence to hold that there was double voting by the voters PWs 1 to 3. Relying on State of H.P. v. Jailal and Others, 2000 KHC 491 : 1999 (7) SCC 280 : 2000 (2) KLT SN 17 : AIR 1999 SC 3318 : 1999 CriLJ 4294 : 1999 AIR SCW 3309 : 1999 (4) CRIMES 4 : JT 1999 (6) SC 548 : 1999 (5) SCALE 445 : 1999 SCC (Cri) 1184 : 1999 (8) Supreme 401, learned counsel for the revision petitioner contended the evidence of the expert witness is necessary to show his expertise on the subject to enable the Court to enter a finding on the conclusions drawn by him. It must be further shown that he has made a special study on the subject or acquired special experience in that field. In other words his skill and adequate knowledge on the subject must be prima facie established to act upon his evidence, and that can be done only by examining that expert in the Court. In the proceedings of the present election petition there was no such evidence as to the competency of the expert to decode the voting machine and so much so, the finding entered by the Court below even without examining that expert is unacceptable, is the submission of the learned counsel. On the other hand inviting my attention to the order / judgment rendered by the learned Munsiff and also by the appellate Court learned counsel for the respondent contended that the challenge now canvassed in revision was never pressed into service before any of the Courts below and further there is no merit in the challenge as the expert in the presence of the counsel before the Court had decoded the voting machine. If at all such a challenge was available under law, the revision petitioner, returned candidate having failed to take such challenge before the Trial Court, cannot canvass it in revision to impeach the order / judgment of the Courts below. There is no infirmity leave alone jurisdictional infirmity in the order / judgment rendered by the Courts below and so much so, in the limited scope of revisional jurisdiction the challenge which is canvassed deserve only to be noticed for its rejection is the submission of the learned counsel for the respondent.