ORAL JUDGMENT

Date : 19-12-2024 Heard Mr. S. B. K. Mangalam, learned Advocate for the petitioners and Ms. Binita Singh, learned Standing Counsel- 28 for the State. Mr. Ravi Ranjan, learned Advocate appears for the State Election Commission.

2. The petitioners are aggrieved with the order dated

27.11.2024, contained in Memo No. 502, passed by the respondent no. 4, whereby the respondent no. 4 was pleased to declare all the votes marked in the ballot paper as “correct” being prejudiced by his order dated 21.09.2024 contained in Memo No. 392(ka).

3. Mr. Mangalam, learned Advocate for the petitioners vehemently contended that the impugned order is in complete defiance of the order passed by this Court dated 29.10.2024 in C.W.J.C. No. 16681 of 2024, whereby this Court remanded the matter to the District Magistrate, East Champaran, Motihari with a direction to pass a detailed order describing each and every ballot papers and marks thereon, with a further direction that the identity of the voter should not be disclosed.

4. Referring to the impugned order, learned Advocate for the petitioners contended that this time again similar mistake has been done and the District Magistrate, East Champaran, Motihari has only said that cross “x” marks have been found on all the ballots, which is contrary to mandate of this Court and an oblique move of the concerned respondent.

5. Mr. Mangalam, learned Advocate for the petitioners drawing the attention of this Court to Rules 95 and 96 of the Bihar Panchayat Election Rules, 2006 vehemently contended that the procedure of poll has been duly provided under Rule 95 with a clear prescription that each member shall be given a ballot paper separately on which he/she shall mark his/her vote by putting secretly a cross (x) mark against the name of a candidate.

6. Rule 96 talks about the invalid votes, which reads as follows:

“96. Invalid Votes- A ballot paper shall be treated as invalid if:-

(a) it bears the signature of a member or there is any such visible word which may lead to the identification of the voter; or (b) the cross (x) mark has been made against the name of more than one candidate; or (c) The mark has been made in such a manner that it can not be ascertained as to which candidate the vote has been cast; or (d) no cross mark has been made on it; or (e) it does not bear the signature of the Presiding Officer.”

7. It is the contention of the petitioners that the vote is fit to be declared as a valid if there is no other visible words or sign, which may lead to identification of a voters; putting of plus “+’ marks on a ballot clearly makes the vote invalid.

8. Attention of this Court has also been drawn to the decision rendered by the Apex Court in the case Kuldeep Kumar vs. Union Territory of Chandigarh & Ors. reported in (2024) 3 SCC 526 which highlighted the significant importance of the fairness in election and mandated a duty cast upon the election authority to conduct free, fair and impartial election. Further reliance has also been placed on a decision rendered by the learned co-ordinate Bench of this Court in the case of Shobhna Kumari vs. The State of Bihar & Ors. in CWJC No. 13287 of 2024 wherein the Court in order to give quietus to the litigation has called for the ballot paper.

9. Referring thereto, he also prays before this Court that if the ballot papers shall be produced before this Court, the entire dispute shall be resolved.

10. The request of the petitioners has been confronted by the learned Advocate for the State and submission has been made that pursuant to the direction of this Court, the ballots have been examined in presence of all the members of the Panchayat Samiti, and the entire episode was duly videographed. After having satisfied, the District Magistrate has given a finding that all the ballots contain cross “x” marks.

11. Drawing the attention of this Court to the order passed by this Court in C.W.J.C. No. 2506 of 2024, learned Advocate for the State has submitted that earli