MOULANA DELWAR HOSAIN SAYDEE Vs. SUDHANGSHU SHEKHOR HALDER

JUDGEMENT

(1.) These two appeals by leave at the instance of the successful candidate from constituency No. 129, Pirojpur-1 in the general election held on 12 June, 1996 arise out of the election dispute being Election Case No. 1 of 1996 filed by the runner-up candidate, respondent No. 1, under Article 49(2) of the Representation of the Peoples Order, 1972 (PO No. 155 of 1972), briefly, the Order, before the Election Tribunal (District and Sessions Judge), Pirojpur.

(2.) The appellant was opposite party No. 5 in the election petition. The election-petitioner alleged, inter alia, in his petition that he and opposite party Nos. 5-12 contested for the parliamentary seat from the aforesaid constituency comprising the local areas of Pirojpur, Nazirpur and Indurkani Police Stations. There were 93 polling centres. The election petitioner was a nominee of the Bangladesh Awami League having the election symbol Nouka while opposite party No. 5 was the nominee of Jamat-e-Islaami, Bangladesh having election symbol Daripalla. Opposite party No. 5 was declared elected by a margin of 280 votes securing in total 55,717 votes while the election-petitioner got the second highest vote i.e. 55,437. The election in different polling centres suffered from various illegal and corrupt practices and non-compliance of the provisions of the Order and the rules framed thereunder. Opposite party No. 14 Abdul Mannan, Superintendent of SM Darussunnat Dakhili Madrasha, was appointed one of the 4 Assistant Presiding Officers of Gharghata Government Primary School Polling Centre within Nazirpur PS, but he remained absent and engaged opposite party No. 15 Shahidul Islam, an Assistant Teacher of the said Madrasha to perform the duty of Assistant Presiding Officer in his place by false personation, This was done for influencing the voters to cast their votes in favour of opposite party No. 5. The said Shahidul Islam worked as an Assistant Presiding Officer in booth No. 2 of Gharghata Government Primary School polling centre from 8-00 AM to 1- 30 PM until his actual identity was disclosed and he was apprehended and handed over to the Police on duty. After the polls the Presiding Officer lodged an FIR with Nazirpur PS against Shahidul Islam alleging false personation as aforesaid. Shahidul Islam while working falsely as an Assistant Presiding Officer in booth No. 2 issued ballot papers to the electors, directed the voters not to cast their votes in favour of the election-petitioner and canvassed for casting their votes in favour of opposite party No. 5 and such unauthorised acts of Shahidul Islam vitiated the election of that polling station which materially affected the result of the election of the entire constituency. After Shahidul Islam was taken into police custody at 1-30 PM no Assistant Presiding Officer was employed to work in his place. The Presiding Officer of that polling station himself did not perform the function of the Assistant Presiding Officer. Thus the election as a whole of that polling centre was void.

(3.) Further allegation of the election-petitioner is that the supporters and workers of opposite party No. 5 created terror at Gabgachhiya Government Primary School Polling Centre within Indurkani PS and as a result the situation went out of control of the Presiding Officer who stopped polling at about 10-30 AM. The polling agents of the election-petitioner were driven out from the polling booth. Polling, however, resumed at 12-00 PM and continued upto 4-00 PM. In the absence of the polling agents of the election-petitioner the workers of opposite party No. 5 cast false votes.