Hari Sharma & Ors. vs State of Jharkhand & Ors.

The present interlocutory application has been filed by the respondent No. 20 for deletion of her name from the array of the parties and modification of the order dated 29.10.2015, passed by this Court.

The respondent No. 20 in this case is the Returning Officer of 22 Barkagaon Assembly Constituency, District-Ramgarh. It may be stated that originally the respondent No. 20 was not added as party respondent in this election petition.

One I.A. 5949 of 2015 was filed on behalf of respondent No. 20 for adding her as party respondent in this case, stating that in the election petition certain allegations have been made in paragraph Nos. 35 to 40 against the Returning Officer of the said Assembly Constituency, and therefore, natural justice demanded that she be impleaded as party respondent in this case. The said I.A. No. 5949 of 2015 was objected by the learned counsel for the election petitioner stating that as per Section 82 of the Representation of the People Act, 1951, the Returning Officer is not a necessary party.

By order dated 29.10.2015, this Court, in view of the allegations made in paragraph Nos. 35 to 40 of the election petition against the Returning Officer, directed the Returning Officer of 22 Barkagaon Assembly Constituency, District-Ramgarh, to be added as party in this case, in spite of the objection by the learned counsel for the election petitioner. Accordingly, the Returning Officer of 22 Barkagaon Assembly Constituency, District-Ramgarh was added as respondent No. 20 in this case.

The present Interlocutory Application has been filed by the same Returning Officer, stating that the Returning Officer is not a necessary party, and accordingly, her name may be deleted from the array of respondents.

Learned counsel for the respondent No. 20 has placed reliance upon the decisions of the Hon''ble Supreme Court of India in B. Sundara Rami Reddy Vs. Election Commission of India and Others, reported in 1991 Supp (2) SCC 624, and also in Michael B. Fernandes Vs.

C.K. Jaffer Sharief and Others, reported in (2002) 3 SCC 521, in which it is held that the Election Commission of India, or the Returning Officer, or Chief Electoral Officer need not be impleaded as necessary party in the election petitions.

Be that as it may, it was on the application of respondent No. 20 herself, that she was added as party respondent No. 20 in this case by order dated 29.10.2015, in view of the contention that natural justice was likely to be violated in view of the allegations against her in the election petition.

Today also, the situation remains the same. As such I do not find any merit in the Interlocutory Application, filed on behalf of the respondent No. 20 for deletion of her name from the array of respondents.

The Returning Officer of 22 Barkagaon Assembly Constituency, District Ramgarh is the necessary party in this case for the other reason also, in view of the following order, being passed in the other interlocutory application.

As such, the I.A. No. 8251 of 2016 stands dismissed. I.A. No. 4243 of 2016

The present interlocutory application has been filed under Order-XI, Rule-1 of the Civil Procedure Code by the election petitioner, giving interrogatories to the returned candidate, the respondent No. 1 and the Returning officer of 22 Barkagaon Assembly Constituency, District-Ramgarh, the respondent No. 20, to be answered by them.

This interlocutory application was filed on 13.7.2016 and by order dated 29.7.2016, at the request of learned counsels for the respondents, time was granted to file rejoinder thereto. On 16.9.2016, at the request of learned counsels for respondent Nos. 1 and 20, further adjournment was granted in this case for filing rejoinder to the interlocutory application. On 28.10.2016, when the matter was taken up, it was submitted by the learned counsel for the respondent No. 1 that no rejoinder could be filed, as the respondent No. 1 had been taken in judicial custody in connection with a criminal case and upon submissions of counsels for both the respondents, the time was again granted for compliance of the order dated 16.9.2016.

On 9.12.2016, when the matter was taken up, it was informed by the learned counsel for the respondent No. 1 that the rejoinder could not be filed in view of the fact that the respondent No. 1 was still in judicial custody in connection with the criminal case and her husband and son are also in the judicial custody, and accordingly, prayer for further adjournment was made.

However, this Court held that this situation, could not be allowed to be continued for long, so that if respondent No.1 remained in judicial custody for a longer period, the matter would be adjourned only in anticipation of her release from the judicial custody, and accordingly, learned counsel for the respondent No. 1 was directed, if necessary, to get the copy of the I.A. No. 4243 of 2016 and to get its reply from the respondent No. 1 from the jail custody, and the case was adjourned for 20th of January, 2017. Again the matter was taken up on 27.1.2017, but at the request of learned counsel for the respondent No. 1, the matter was adjourned for today. Today also, the prayer for adjournment has been made by the learned counsel for the respondent No. 1.

The fact remains that the aforesaid interlocutory application, which has been filed with interrogatories to the respondent No. 1 and respondent No. 20, still remain unanswered by both the respondents, in spite of several adjournments. In that view of the matter, the prayer for further adjournment for filing the rejoinder, is hereby, rejected and the interrogatories are treated to be unanswered.

It is an admitted fact that the respondent No. 1 has won the election only with the margin of 411 votes. The written statement has been filed by the respondent No. 20, the Returning Officer of 22 Barkagaon Assembly Constituency, District-Ramgarh, in which it is admitted that the name of 765 persons have been recorded twice in the Electoral Roll of the constituency, and out of them 171 persons had been found to have voted twice. Thus, from the written statement of the Returning Officer of 22 Barkagaon Assembly Constituency, District-Ramgarh, 171 X 2 = 342 votes have to be declared null and void, in view of Section 62(4) of the Representation of the People Act, 1951, which shall reduce the margin of victory of respondent No. 1 only by 69 votes.

The records of 22, Barkagaon Assembly Constituency, District-Ramgarh were called for, by this Court, by order dated 29.9.2015, which have since been received. By order dated 22.1.2016, the election petitioner was given the permission to inspect the records in presence of leaned counsels for the Returned Candidate as well as the respondent No. 20. It is alleged in this interlocutory application that upon inspection of the records, large number of persons have been found, whose names have been entered twice in the Electoral Rolls and also they have voted twice. Accordingly, the interrogatories were served upon the returned candidate respondent No. 1, and respondent No. 20, the Returning Officer of 22 Barkagaon Assembly Constituency, District-Ramgarh, giving the booth wise details of such double votes casted, to be answered by them, which have not yet been answered by them. Now the interrogatories are treated to remain unanswered.

In view of this situation, though adverse inference can be taken against both the respondents at this stage itself, but taking into consideration the fair play and in the interest of justice, I direct the respondent No. 20 to hold the inspection of the records, available in this Court, and submit her report on affidavit to this Court giving the exact number of persons, if any, as may be found to have been entered twice in the Electoral Rolls, as also the exact number of persons, if any, as may be found to have voted twice. As agreed upon by the learned counsels for the election petitioner and both the respondents, the inspection of records shall be held on 14th, 15th and 16th of this Month, in presence of learned counsel for the election petitioner as also in presence of the learned counsel for the respondent No.1, the returned candidate.

The Registry shall make arrangements for inspection of the records by the respondent No.20, between 11.30 A.M. to 3.30 P.M. on all the aforesaid three dates. As the records are kept in sealed boxes, the boxes shall be opened in the presence of Joint Registrar (Judicial) in-charge, of this Court, and after the end of inspection on each dates, the same shall also be kept in the boxes to be sealed again.

The detailed report as directed above, shall be submitted by the Returning Officer of 22 Barkagaon Assembly Constituency, District-Ramgarh in this Court positively by 3rd of March, 2017.

This interlocutory application stands disposed of with the directions, as above. E. P. No. 8 of 2015

Let this election petition be again listed on 3rd of March, 2017 under the appropriate heading.

Let copies of this order be handed over to the learned counsel for the election petitioner and learned counsels for the respondent No. 1 and respondent No. 20, for the needful.