MUNNI DEVI SHARMA WIFE OF SRI PRABHAT KUMAR SHARMA Vs. STATE ELECTION COMMISSION, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA THROUGH THE STATE ELECTION COMMISSIONER

JUDGEMENT

(1.) MR . S.B.K. Mangalam. learned counsel appearing in support of the writ petition challenges the order of the Election Tribunal dismissing his application challenging the election of respondent no. 4. and draws attention of this Court to the fact that in view of the evidences it stands established that the stamp used for marking ballot papers, as supplied by the State Election Commission, was defective for which Election Commission itself has taken effective action against the supplier thereof. These are matters of record in the election petition itself. Rejecting the ballot papers accordingly on ground of defective marking was not correct and in view of those facts Election Commission should have directed for recount of ballot papers to arrive at true and correct result of the process of election.

(2.) THE petitioner had contested the election for the post of Mukhiya of Gram Panchayat Raj, Dhokraha. She filed an election petition before the Munsif, Bettiah, West Champaran being Election Petition No. 25 of 2006. Various issues were framed in the matter in course of trial. It is not in dispute that petitioner led evidence to show that the stamp supplied by the State Election Commission for marking the ballot papers was defective. It lost its rubber shape. As evidence, he brought on record the first infomation report lodged by the State Election Commission itself against the supplier. She contended that large numbers of ballot papers were rejected as invalid only on ground of this defective marking which was solely because of the defective marker provided. The learned Munsif has considered this aspect of the matter in paragraph -20 of the judgment which is impugned herein. He has noticed the contention of the petitioner but rejected it merely on the ground that petitioner could not specify exact number of such invalid votes though he notices that the total invalid votes which were in fact cast in favour of petitioner was 958. It is submitted that from this finding, it is clear that there were votes which were declared invalid because of faulty marking, which was solely attributable to the marker supplied by the Commission. He submits that in view of the aforesaid, it was the duty of the Election Tribunal to get those invalid votes scrutinized and counted and those votes which were declared invalid solely because of defective marking should have been counted as valid and then result declared. He relied upon the various judgments of the Supreme Court in the case of T.H. Musthaffa V/s. M.P. Varghese & Ors. since reported in AIR 2000 SC 153, Era Sezhiyan V/s. T.R. Balu & Ors. since reported in AIR 1990 Supreme Court 838, Hari Shankar Prasad V/s. Shahid Ali Khan & Ors. since reported in AIR 2003 Supreme Court 1302 and of this Court in the case of Babita Devi & Ors V/s. The State of Bihar & Ors. with analogous cases since reported in 2006(3) PLJR 382.

(3.) IN all these cases, it has been consistently held that where a different marker was intended to use as supplied and votes were declared invalid because of that such declaration was wrong because what the law required was that the votes have to be marked by the marker supplied by the Election Commission. From the averments, it is clear that votes were declared invalid. In the present case not because they were not marked by the marker as supplied in course of election by the Election Commission but they were rejected because the Swastika Mark as got defaced and were marked with defaced Swastika Mark. Why Swastika Mark defaced is not in dispute. It was because of poor quality of marker supplied for which Election Commission itself has taken serious actions. Thus, if on this ground without counting such votes petitioner is permitted to be defeated it would be adding insult to injury. It is like saying that I have committed mistake for which you must pay the price that surely cannot be permitted in any civilized society dealing with democratic rights.