DR. BIJAN KUMAR MUKHOPADHYAY Vs. TAPAS BANERJEE

JUDGEMENT

(1.) The petitioner contested the General Election-2021 to the Legislative Assembly of the State of West Bengal from 278-Raniganj Assembly Constituency as a candidate of Bharatiya Janata Party (in short 'BJP '). The petitioner is present on virtual mode. The petitioner has, inter alia, challenged the election for the said Constituency and have also sought for a declaration that the petitioner should be declared as an elected candidate in the place and stead of the returned candidate for the said Assembly Constituency. The respondent no. 1 who contested the election of the said Assembly Constituency as a candidate of All India Trinamool Congress (in short 'AITMC ') is the returned candidate from the said Assembly Constituency for the General Assembly Election-2021. The respondent nos. 2 to 6 are the other candidates who had contested the election from the said Assembly Constituency. The other respondent is the Commissioner of Police, Asansol Durgapur Police Commissionerate. An Election Petition is presented in this Court under the provisions of the Election Petition Rules, 1967 of the High Court at Calcutta (hereinafter referred to as '1967 Rules) framed in exercise of jurisdiction under Section 80A of The Representation of People Act, 1951 (hereinafter referred as the 'R P Act '). Rule 23 of the 1967 Rules provided for the Registrar, Original Side of this Court to scrutinize whether the Election Petition is in accordance with Sections 81, 82, 83, 84 and 117 of The R P Act. Section 81 of The R P Act provides for presentation of the election petition within 45 days from the date of election of the returned candidate after registration of the petition and file a report to that effect. On perusal of a report dated 6th July, 2021, it is found that the Election Petition is in order save and except that it has been filed beyond 45 days from the date of election of the returned candidate. The order dated 27th April, 2021 passed by the Hon 'ble Supreme Court of India in a suo moto proceeding by which the limitation period in respect of all matters have been extended until further orders was relied upon by the petitioner at the time of scrutiny to demonstrate that the provisions of limitation of 45 days is not attracted in the instant case. The Registrar, Original Side of this Court on being prima facie satisfied has allowed the application to be listed. I am also prima facie satisfied in terms of Rule 24 of the 1967 Rules. Let notice be issued in terms of Rule 24 of the 1967 Rules upon the respondents. The Registrar, Original Side of this Court shall check whether the copies of the petition with annexures intended to be served are in order or not. The date in the Vakalatnama should be filled in. The matter is made returnable on 10th of August, 2021. The limitation point is, however, kept open for being finally adjudicated once the respondents appear and get an opportunity to controvert the same. Although there is a prayer in this petition for preservation of video footage of the photographer appointed by the Election Commission as well as Close Circuit Television (in short 'CCTV ') footage of the complete polling of votes inside the polling station and storage of Electronic Voting Machines (in short 'EVMs ') but no order is passed on such prayer in the main election petition for the present since an interim application in aid of such main relief has been filed being G.A. No. 1 of 2021.

(2.) In this application made in the Election Petition being EP/11/2021, the petitioner has, inter alia, sought for preserving the Electronic Voting Machine (in short 'EVM '), Voter Verifiable Paper Audit Trial (in short 'VVPAT ') and other documents, election papers and devices connected with the electoral process under challenge that is the General Assembly Election-2021 for the 278-Raniganj Assembly Constituency. After considering the averments in the petition and after hearing the counsel representing the petitioner, the petitioner is directed to serve copy of this application upon the respondents and the District Magistrate, Paschim Bardhaman / District Election Officer by two weeks from date. District Magistrate, Paschim Bardhaman / District Election Officer (in short 'DEO ') shall file a report on the returnable date as to how many EVMs and VVPATs had been used in the Assembly Election for the said Raniganj Constituency and whether he received the same on completion of election for the said Constituency in accordance with the provisions of Manual on Electronic Voting Machine and VVPAT published by the Election Commission of India in 2020 (hereinafter referred to as the 'said manual ') and made applicable for the General Assembly Election for the State of West Bengal in 2021. In his report the learned District Magistrate/DEO shall also indicate as to the sealed envelopes, packets, devices, CCTV footage, photographs regarding the used in the election process for the said Constituency received by him as per the said manual and where are those papers, documents, EVMs, VVPATs, devices, CCTV footage, photographs etc. presently stored at. I am told by the counsel representing the petitioner that these EVMs, VVPATs, CCTV footage, photographs, papers, documents, devices etc. are stored at the warehouse at Asansol Durgapur Development Authority (in short 'ADDA ') Building, Kalyanpur, Asansol. The District Magistrate, Paschim Bardhaman / District Election Officer shall take all steps to keep the EVMs, VVPATs, devices, documents, papers, CCTV footage, photographs etc. used in the election process of 278-Raniganj Assembly Constituency during the General Assembly Election-2021 now in his custody either at the said ADDA Building at Kalyanpur, Asansol or at any other place wherever they are presently lying at until further orders. Let this application appear along with main Election Petition on 10th of August, 2021.