RAJ KUMAR Vs. BIHAR STATE ELECTION COMMISSION

JUDGEMENT

(1.) Election petitioner was one Anil Kumar. His election symbol was 'Chain of pearls'. In respect of the self same election, there was another Anil Kumar whose election symbol was 'Blackboard'. After the election was held and in course of counting the votes, in relation to Booth No. 154 of Ward No. 10 the election petitioner lodged a complaint that the votes caste in his favour at the said booth have been accepted to have been cast in favour of the other Anil Kumar. This objection was not adhered to and recounting was not ordered. The election petitioner thus raised an election dispute by tiling an election petition. At Booth No. 154 of Ward No. 10, altogether 296 votes were cast; of them 33 votes were shown to have been received by the other Anil Kumar. From the very beginning it was the contention of the election petitioner that the said 33 votes were, in fact, cast in his favour and if those votes are added to the votes already received by him at other booths, there is no other option but to declare him as the winner of the election. From the very beginning it had been, therefore, the. endeavour of the learned Munsif to look into those ballots and to sort out the matter.

(2.) The moment those ballot papers were exhibited, the writ petitioner approached this Court by filing a writ petition registered as CWJC No. 385/2003 and contended that those ballot papers cannot be looked at. The Court dismissed the writ petition in so far as that contention of the writ petitioner, but at the same time permitted the writ petitioner to make an application to the learned Munsif for recalling the order and not to consider the exhibits at that stage. Subsequent thereto the Munsif passed an order on the basis of the admission of other Anil Kumar and hot the election petitioner as made in his written statement that the said 33 votes were wrongly counted in his favour and the same ought to have been counted in favour of the writ petitioner. This order was challenged by filing a writ petition being CWJC NO. 6082/20043. This Court while disposing of the said writ petition (CWJC No. 6082/2003) vide order Dt. 1.9.2004 observed that when the votes were not properly counted and there was mistake of identity then such evidence should be brought on record and the trial Court should record a finding even on preponderance of probability that the allegations made by the election petitioner, in fact, are proper and stand proved. The Court further observed that simply on the basis of some submissions made by a defendant, who does not appear in the witness box, the Court below cannot record a finding. The Court then observed in the facts and circumstances of the case as was found by the Court that the direction of the Munsif that the ballot boxes be opened and votes be examined by two counsel cannot be approved inasmuch as votes were to be counted and examined by the Presiding Officer of the Court and that the same is a judicial act and cannot be delegated to counsel. The order of the Court below was accordingly quashed and the writ petition was allowed. The matter went back to the Court below again. The Court then directed that those 296 ballots be counted in his presence, after dealing with the entire matter by the judgment and order dated 13th January, 2005. He further directed that those ballots shall be counted in his presence with the assistance of the agents of the parties as well as in presence of the Block Development Officer with a direction upon the Block Development Officer to submit a report after such counting to him in a sealed cover. The writ petition registered as CWJC No. 1601/2005 has been filed by the writ petitioner challenging the said decision.

(3.) During the pendency of the writ petition CWJC No. 1601/2005), those 296 ballots were looked at and 33 ballots were segregated under the supervision of the learned Munsif, when the Block Development Officer as well as the agents of the rival parties were present and the Block Development Officer submitted a report in relation to those 33 ballots in a sealed cover. The sealed cover report was opened by the learned Munsif and the learned Munsif found therefrom that all those 33 ballots were, in fact, cast in favour of the election petitioner and not in favour of other Anil Kumar, who was shown to have originally bagged those votes.