Madhu Devi vs Bihar State Election Commission

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Pat) 165

IN THE HIGH COURT OF JUDICATURE AT PATNA
PURNENDU SINGH, J.
CWJC No.3732 of 2023
(22.1.2024)
Madhu Devi ... Petitioner
vs.
Bihar State Election Commission & Ors. ... Respondents

Advocates Appeared:
For the Petitioner: M/s P. K. Verma, Sr. Adv., Sanjay Kumar Ghosarvey.
For the SEC : Mr. Ravi Ranjan.
For Respondent No. 2: M/s Sanjay Kumar Sinha, Shivjee Singh, Mukesh Kumar.

Headnote:
Civil Procedure Code, 1908 – Order XVI, Rule 14 – Bihar Panchayat Raj Act, 2006 – Sections 138 and 139 – Constitution of India – Article 243-O(b) – Summoning of Electronic Voting Machines (EVMs) used in elections of Mukhiya of Gram Panchayat – Allegations have been made of conducting irregularity during counting of votes and indulging in corrupt practices to influence election results – Election dispute can be raised only by election petition before Election Tribunal – Right to elect, right to be elected and right to remove an elected representative is neither fundamental nor common law right but, only a special right created by a statute – An election petition is statutory proceedings which is regulated by those Rules which statute makes and applies – Election of an elected representative must be challenged only in manner provided in relevant statute – In view of bar contained in Article 243-O(b) of Constitution of India, validity of any election under provisions of Act of 2006 can be called in question only by way of election petition under provisions of Section 137 of Act of 2006 and Rules made thereunder – On mere allegation of respondent who suspects or believes that there has been an improper reception, refusal or rejection of votes, call for inspection of same to arrive at a satisfaction by Tribunal. will not be sufficient to support order for inspection. (Paras 21, 23, 24 and 27)
Bihar Panchayat Election Rules, 2006 – Rules 74, 76 and 79 – Civil Procedure Code, 1908 – Order XVI, Rule 14 – Summoning of Electronic Voting Machines (EVMs) used in elections of Mukhiya of Gram Panchayat – A candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which EVMs/ballot boxes were scrutinized and opened and votes were counted – Respondent has failed to bring on record any material evidence to show that he diligently followed procedure under the Act for ensuring transparency during counting of votes – Election Petition itself is marred by unsubstantiated claims and contradictory statements – Burden of proof resting on a person seeking a declaration of voidness of election is very heavy – Burden of proof is always upon election petitioner to establish that illegality committed in counting of votes has materially affected result of election – Recounting of ballot papers etc. have to be considered only if there is really genuine ground supported by assigning valid reasons for the same – Mere allegations devoid of any material evidence, particularly objection raised with regard to tampering of votes in EVMs during election process is against law – Impugned order passed by Tribunal set aside and quashed – Writ petition allowed. (Paras 32, 33, 39, 41, 46, 48, 49 and 50)
Civil Procedure Code, 1908 – Order XVI, Rule 14 – Summoning of witness – Rule 14 Order XVI of CPC, is discretionary in nature in as much as it provides that Court 'may' of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession on a day to be appointed, and may examine him as a witness or require him to produce such document – Exercise of discretionary powers entails greater caution and care – Procedure is handmaid of justice and exercise of discretion must be in light of provisions of law. (Para 45)

Purnendu Singh, J. – Heard Mr. P. K. Verma, learned senior counsel along with Mr. Sanjay Kumar Ghosarvey, learned counsel for the petitioner; Mr. Ravi Ranjan, learned counsel for the State Election Commission and Mr. Sanjay Kumar Sinha, learned counsel along with Mr. Shivjee Singh, learned counsel and Mr. Mukesh Kumar, learned counsel for the respondent no. 2.

2. The writ application has been filed assailing the order dated 12.01.2023 passed in Election Suit No. 01/2022 by the learned Munsif-II Saran at Chapra, whereby all the Electronic Voting Machines (“EVMs” for short) used in the elections of Mukhiya Gram Panchayat Baligaun under Parsa block in Saran district held on 12.12.2021 and the result prepared after counting have been summoned for production/inspection under under Order XVI, Rule 14 C.P.C.

FACTUAL MATRIX

3. Brief facts of the case are that the election for the post of Mukhiya in Panchayat Election 2020-21 of Gram Panchayat Raj Baligaon, Block - Parsa, District – Saran, was held on 12.12.12021. The petitioner and Respondent No. 2, were contesting candidates out of total 5 contesting candidates. According to the public notice issued by the Returning Officer, the detailed schedule for holding the Panchayat Election, 2021 in Gram Panchayat Raj Baligaon, Parsa was announced which is as follows: –

Date of Filing of

Nomination: 24/11/2021

Date of Scrutiny of

Nomination: 26/11/2021

Date of Withdrawal of

Candidature: 28/11/2021

Date of Allotment of

Symbol: 30/11/2021

Date of Election: 12/12/2021

Date of Counting: 15/12/2021

4. Records with respect to the petitioner reveals that no discrepancies were found in the information furnished by the petitioner in the nomination papers, petitioner was found eligible to contest the election. As per the schedule the election was held on 12.12.2021 and the counting was held on 15.12.2021 and concluded as per the schedule, without any objection. The Counting of votes took place in presence of the Returning Officer, the contesting candidates, who and their agents did not raise any objection at that point of time. After recording the particulars of the election result, the petitioner was declared elected, after having secured the largest number of votes i.e 1564, whereas, the respondent no. 2 received the second highest votes i.e 1546.

5. Aggrieved with the result of the election, the respondent no. 2 filed Election Petition No. 01/2022 before the learned Munsiff- II, Saran, Chapra under Section 137 of The Bihar Panchayat Raj Act, 2006. As per the pleadings, allegations have been made of conducting irregularity during the counting of votes and indulging in corrupt practices to influence the election results and the plaintiff – respondent no.2 has sought for declaring the election void. After the election petition was registered before the Election Tribunal, the Respondent No. 2 submitted a petition under Rule 14 of Order XVI, CPC on 12.12.2022 (Annexure-3) for production of the EVMs, result sheet, voter list and CCTV footage for inspection by the Election Tribunal. The learned Munsiff- II, Saran at Chapra vide impugned order dated 12.01.2023, which is annexed as Annexure-5 to the writ petition, while allowing the prayer of respondent no. 2, in exercise of jurisdiction under Rule 14 of Order XVI, CPC. The provision Rule 14 is reproduced hereunder: –

“Rule 14. Court may of its own accord summon as witnesses strangers to suit. – Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary 9 [to examine any person, including a party to the suit], and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession on a day to be appointed, and may examine him as a witness or require him to produce such document.”

6. The petitioner, has filed the present application against t