DILIP KUMAR SINHA Vs. AMBIKA PRASAD

JUDGEMENT

(1.) THE present election petition has been filed on behalf of Sri Dilip Kumar Sinha, a loosing candidate for the Assembly Election of Bihar legislative Assembly from 165-Pirpaiti Assembly Constituency held in March 1995, THE election petition has been filed under Sections 80, 80-A and 81 of the Representation of People Act, 1951 (hereinafter to be referred to as the R.P. Act 7). THE petitioner has challenged the election of Respondent No. 1 Sri Ambika Prasad who was declared elected in the election from the aforesaid Constituency. THE necessary Notification was made on 16th of January, 1995 and after the nomination and scrutiny, etc. was made according to the Schedule, the polling was held on 15th of March, 1995. THEre were altogether 27 candidates left in the field, after scrutiny and withdrawal. Out of 27 candidates, respondent No. 1 Sri Ambika Prasad, who was a candidate of Communist Party of India, was declared elected by the Returning Officer of the Constituency. THE present petitioner Sri Dilip Kumar Sinha had received 33179 valid votes in his favour; whereas altogether 34416 valid votes were counted in favour of respondent No. 1 Sri Ambika Prasad. THE petitioner has challenged the election of the respondent No. 1 on the ground of irregularity, committed by the Returning Officer and his sub-ordinate staff. No other kind of allegation has been made.

(2.) IT has been stated that at the relevant time, Sri Arun Kumar Sinha happened to be the District Magistrate and the District Election Officer of the district of Bhagalpur and the Constituency concerned was in the district of Bhagalpur of which the Sub-Divisional Officer, Kahalgaon happened to be the Returning Officer. The petitioner happened to be the Official candidate of Indian National Congress. The symbol allotted to the petitioner was 'Panja'; whereas the symbol allotted to respondent No. 1 Sri Ambika Prasad was 'Bali and Hasia'. IT has been alleged that though the petitioner received maximum number of valid votes, the Returning Officer illegally declared the respondent No. 1 as duly elected candidate. IT has been stated in this regard that at the beginning of the counting, he was informed by the Returning Officer that only 113000 votes were to be counted but, in fact, total votes counted came to J 23528 of which 120015 votes were found to be valid votes whereas 3513 were invalid votes. The petitioner has stated that at the relevant time, he happened to be President of Kahalgaon unit of N.T.P.C. Workers' Union which had affiliation with I.N.T.U.C. He was leading an agitation regarding the rights of displaced persons for their rehabilitation and at that time Sri C.P. Bakhala was the Sub-Divisional Officer, Kahalgaon. He was posted there since the year 1991. In course of agitation led by the petitioner, there was Lathi charge and firing by Police and a false case was registered as Kahalgaon on P.S. Case No. 330 of 1991 under Sections 147, 145, 149, 323, 339, 338, 307, 332, 333, 335, 427, 486 and 188 of the I.P.C. IT was at the instance of the S.D.O. Sri Bakhala. IT is further stated that Sri Bakhala was transferred from Kahalgaon but his transfer was stayed by the Government of Bihar at the instance of respondent No. 1 twice. IT has been stated that there were altogether ten counting tables kept in the Counting Hall and there was a Central Table. IT is further stated that above named Sri Bakhala, S.D.O. Kahalgaon-cum-Returning Officer came to the counting hall after the counting of 7th round was over and he remained present there till the end of the counting. In the meanwhile, the Assistant Returning Officer was In-charge of counting till the 7th round. Thereafter the A.R.C. was asked to sit on the side table and the S.D.O. Sri Bakhala occupied the Central table. The District Magistrate, Bhagalpur also used to visit the counting hall from time to time. According to the petitioner, the arrangement in the counting hall was not satisfactory and not according to the instructions of the Election Commission of India. IT is also further stated that the basket in which the bundles of ballot, papers were kept after initial counting was kept behind the central table in disregard to the instructions of the Election Commission. IT is also further stated that there were two rooms attached to the hall behind the central table and unused ballot papers were also kept in those rooms. The counting took place in a room of Sharda Pathshala at Kahalgaon. The counting tables were arranged in two rows and the entire area was surrounded from three sides and there was a gate on the western side. There was apiece brick wall which was 3 feet in height. On the other side of barricading, the benches were provided in three rows for the counting agents of the respective candidates. Each contesting candidate was entitled to keep one counting agent on one table. So it was humanly not possible for each of the counting agents to clearly and properly watch the counting process easily. According to him, this fact could be verified from the video cassettes which were prepared from time to time. IT is also further stated that the petitioner and other contesting candidates had protested to this kind of arrangement but the Returning Officer did not pay any attention in this regard. IT is also further stated that the personnel's of C.R.P. and B.S.F. were also posted inside the counting hall and whenever the counting agents of the petitioner used to raise any objection regarding any kind of difficulty felt in sitting arrangement or illegality or irregularity being committed by the counting staff, they were man-handled by the Jawans of C.R.P. & B.S.F. in the name of maintaining peace in the counting hall. IT is also further stated that the petitioner had sent a fax message to the Chief Selection Commissioner about the illegality and irregularity committed in course of counting and he had made a prayer for recounting. According to him, the written complaints filed by the petitioner or his counting agents were never attended to by the A.R.O. or the R.O. According to the petitioner, Sri Yogalal Mishra was the A.R.O. of the Constituency who was In-charge of counting till the 7th round. According to the petitioner, after the R.O. came to the counting hall and took charge of counting, irregularities, and manipulation started. IT. is also further stated that counting continued for about 80 hours continuously out the contesting candidates were not allowed to change* their counting again, but in the 8th round of counting, the entire counting staff were changed.' The petitioner, in enquiry, came to know that 20 employees were sent from Bhagalpur to Kahalgaon by the District Magistrate. Bhagalpur on 31st March, 1995. Their names have also been given. IT is also fun her staled that apart from the abovenarned employees, others were also employed by the R.O. for the purpose of counting after the 8th round, till the end of counting. He has also further alleged that these other persons were not even the staff who were engaged in the counting process. The petitioner also further stated that after declaration of the result, the petitioner on 15th April, 1995, filed two requisitions for obtaining certified copies of the documents under Rule 93(2) of the Conduct of Election Rules, 1961. The Returning Officer also ordered for issuance of certified copy, as applied for, but refused to grant certified copy of Form-16 and the presiding Officer's diaries of 165-Pirpaiti Assembly Constituency; The petitioner then approached the Chief Electoral Officer. Government of Bihar, with a prayer by this effect and the Chief Electoral Officer directed the District Magistrate-cum-District Election Officer to issue the certified copy of ballot paper accounts in Form-16 accordingly. Thereafter the. petitioner approached the District Magistrate-cum-District Election Officer for the certified copy but he did not issue any direction because he was already transferred and a new District Magistrate was posted, but he had not joined till the election petition was filed. Those papers could not be filed., as the petitioner could not receive those copies. According to the petitioner, the irregularities which were committed during the counting were: (i) Before initial counting of votes, the Returning Officer told the Election petitioner that the total votes polled in the constituency was 1,13,000; whereas from the result sheet, the total votes counted was 1,23,535. (ii) The major manipulations and illegalities started from 8th round of counting over table Nos. 1, 2, 4, 5,9 and 10. IT was so that the ballot papers cast in favour of the petitioner were counted in favour of respondent No. 1. IT was so done by putting ballot papers of the petitioner inside, those of the Respondent No. 1 for preparation of bundles of 25 each. This way, about 500 ballot papers in each round belonging to the petitioner were counted in favour of respondent No. 1. (iii) The ballot boxes used at Booth Nos. 78 and 181 were found unlocked and at the time of initial counting, there was objection raised on behalf of the petitioner and other candidates also not to count those ballot papers, as they were invalid, but the objections were overruled on flimsy ground that the ballot papers were unlocked due to mechanical defect of the lock system and even clarification was not sought from the Election Commission of India in this regard. (iv) For some Booths, neither the Presiding Officers' diary nor the Ballot paper Accounts 9 (Form-16) was available at the time of counting. IT has been stated for example that on booth No. 146 total votes cast was 625 but in the ballot boxes 635 ballot papers were found. The remaining 375 unused ballot papers were not brought along with the ballot papers at the time of initial counting in spite of repeated requests made on behalf of the election petitioner and other contesting candidates. Similarly, the Presiding Officers' diary of Booth No. 150 was not. brought along with the ballot boxes at the time of initial counting in spiel of repeated requests made on behalf of the election petitioner and other contesting candidates. The Ballot Paper Accounts of booth No. 20 did not show as to how many ballot papers were used at Booth No. 20 and how many ballot papers remained, unused. In similar manner, according to the ballot paper accounts of Booth No. 11, the total votes polled at that Booth was 654 whereas the total votes found in the boxes was 672. Similarly, the ballot paper accounts of Booth No. 263 also showed that the total votes polled was 502", but, in fact, 613 ballot papers were found in the. ballot boxes. (v) After the initial stage of counting, 5000 votes were thrown out, and equal number of ballot papers were mixed after stamping the same in favour of C.P.I, candidate, i.e., respondent No. 1, The petitioner further stated that the details of illegalities and irregularities could be supplied by him alter he received the certified copies of the relevant papers by him and ultimately it was stated that though the maximum number of votes were polled in favour of petitioner, in illegal and mala fide manner, the respondent No. 1 was declared elected. The petitioner accordingly prayed that records be called for and after hearing the parties, inspection of records, recounting of ballot papers be ordered and thereafter the election of respondent No. 1 be declared void and the petitioner be declared elected for 165-Pirpaiti Assembly Constituency. One amendment petition was also filed subsequently on behalf of petitioner in which some further details, were also given and it was allowed by the Court.

(3.) WHETHER the election petitioner is entitled to be declared as returned candidate from the Assembly Constituency concerned?