SHANTI DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard counsel for the petitioner, the State of Bihar, State Election Commission and the contesting respondent no. 3.

(2.) This writ application is directed against an order dated 17.11.2006 passed by the Munsif, Danapur in Misc. Case No. 26/2006, whereby and whereunder an application filed by respondent no. 3, the election petitioner, for calling certain records including ballot papers of Lala Bhadsara Gram Panchayat Elections-2006 has been allowed with a consequential requisition to the Block Development Officer (B.D.O.), Dulhin Bazar for their production in the court.

(3.) Such an interlocutory order passed by the court below has been assailed by the writ petitioner on the ground that the court below while hearing on election petition ought to have not summoned documents pertaining to the election and especially ballot papers at the behest of election petitioner in a routine manner unless a strong prima facie case was made out with regard to the requirement of such documents for its being used/looked into for deciding the dispute in question. Expanding the said issue Mr. Sidheshwari Prasad Singh, learned Senior Counsel in his usual simplistic flair had submitted that in terms of Rule 84 of the Bihar Panchayat Election Rules, 2006, the custodian of such documents being the Chief Election Officer, the court below had committed an error in directing the Block Development Officer to submit those documents as prayed for by respondent no. 3, the election petitioner. Mr. Singh in this regard had expressed apprehension that if the documents were called for from the Block Development Officer there was every chance of such documents being spurious. He had further tried to distinguish the class of the documents which were prayed for by respondent no. 3 to be produced and he was of the view that whereas the other documents could have been called for even at the initial stage of hearing of the election case, the ballot papers should have been only called for if the election petitioner, respondent no. 3, was in a position to establish her prima facie case as with regard to need of looking into secrecy of ballot papers. It was in this regard that Mr. Singh had stressed that for constituting a prima facie case in respect of looking into the ballot papers it was necessary for the court to find out as to whether the election petitioner, respondent no. 3, had raised any such objection/filed any application with regard to any irregularity in course of counting of the ballot papers because the court was required to call for ballot papers only when its production was absolutely necessary. Mr. Singh in fact had also taken a stand that respondent no. 3, the election petitioner, as a matter of fact had never filed any application before the Returning/Officer during the course of counting complaining any irregularity in the counting of ballot papers and as such, the prayer made by respondent no. 3 at the initial stage of hearing of the election case was itself misconceived and ought to have been rejected. Counsel for the petitioner in this context had relied on the judgment of the Apex Court in the case of Ram Sewak Yadav Vs. Hussain/Kamil Kidwai, 1964 AIR(SC) 1249, in the case of Chandrika Prasad Yadav Vs. The State of Bihar & Ors., 2004 AIR(SC) 2036, in the case of Banwari Yadav Vs. The State of Bihar & Ors., 2007 4 PLJR 169 and in the case of Hoshila Tiwari Vs. The State of Bihar & Ors., 2008 4 PLJR(SC) 62.