Sasha Kamal Handique vs Pranati Phukan and Others

V.D. Gyani, J.—The Election Petitioner by this petition u/s 80, 80A and 100 of the Representation of People Act, 1951 (for short the Act) has challenged the election held on 27.4.96 to the Assam Legislative Assembly of returned candidate Smti. Pranati Phukan, Respondent No. 1 from No. 120 Naharkatia L.A. Constituency.

The grounds of challenge are alleged corrupt practices and gross irregularities in transporting Ballot Boxes and in counting of votes. There were nine candidates including the Petitioner in the field, the returned candidate was a nominee of Indian National Congress, while the Petitioner contested the election on C.P.I. (M) ticket. The total number of votes polled by the Petitioner (as per statement in Form 21. Ext. P-3 filed by the Petitioner) were 21061 while the returned candidate polled 26333 votes, thus defeating her nearest rival the Petitioner by a margin of 5272 votes and the total number of rejected votes were 4776. It is mainly in view of the number of rejected votes that the learned Counsel insisted for an order of recount.

Mr. B.M. Mahanta, learned Senior counsel on the other hand, maintained that even if the total number of rejected votes, are taken and treated as cast in favour of the election Petitioner, yet it is of no help to the Petitioner, as yet it does not affect the election result which remains the same.

Before proceeding to deal with irregularities in counting and transporting of ballot boxes, I would first take it up the corrupt practice as alleged by the Petitioner. Needles to say, the Respondent returned candidate in her statement has denied the allegations and averments made by the Petitioner as regards corrupt practice and other irregularities in counting and transportation of ballot boxes of the polling station.

The allegations regarding corrupt practice as made by the Petitioner is to be found in paragraph 5 of the election petition. According to the election Petitioner two days prior to the date of poll i.e. 25.4.96 around 10.30 a.m. the Branch Manager, Assam Plains Tribes Development Corporation distributed 65 sewing machines amongst the voters of Sonowal Gaon of Chechapani area in Naharkatia Constituency. According to him it was contrary to model code of conduct framed by the Election Commission. The other allegation relates to sale of 700 quintals of rice at subsidised rate of Rs. 2/- per kgs. which is distributed amongst the entire Naharkatia Constituency by the STATFED. Both the organisations are under the control of the State Govt. and at the material time the Indian National Congress was the party in power in the state and the Respondent No. 1 was a candidate sponsored by the Indian National Congress. It was, therefore, alleged that distribution of sewing machines and sale of rice at subsidised rate of Rs. 2/- per kg. was with a view to influence the voters on the basis of such distribution by the ruling party i.e. the National Congress. According to the election Petitioner, this has materially affected the election result of the Constituency.

Without going into the evidence adduced and taking the Petitioner''s case as pleaded, yet it falls to meet the requirement of law. Clause (b) Sub-section (1) of Section 100 provides:

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent;

Clause (d) thereof reads as follows:

(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected - (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate (by an agent other than his election agent)

On Petitioner''s own showing the sale of rice at subsidised rate was by the STATFED and the distribution of the sewing machines was by the Corporation. It is not the Petitioner''s case that the returned candidate or her election agents committed any such corrupt practice, nor is it the Petitioner''s case that the corrupt practice had been committed by any other person with the consent of the returned candidate or his election agent or it was committed in the interest of the returned candidate. The question of materially affecting the election result so far as it concerns the returned candidate, therefore, does not arise. It may be noted that at the moment I am going by the pleaded case and not touching the evidence which is extremely shaky on the point. The required pleading itself is missing. Election can be declared as void only when the following conditions concur - (i) the third person is an agent of the candidate, (ii) the corrupt practice was committed in the interest of the returned candidate; and (iii) the result of the election, in so far as it concerns a returned candidate, has been materially affected by the corrupt practice (Section 100(1)(a) of the Act). An election can be declared as void only when the above conditions are fulfilled.

Now adverting to the evidence available on record, the Petitioner has examined the Branch Manager of the Assam Plains Tribes Development Corporation. According to him 156 machines were to be distributed in different villages of Naharkatia Constituency by 31st March, 1996. Out of 156 only 80 machines were received by the end of March, 1996 and the remaining machines were received in April, 1996 and that was the reason for which the distribution continued upto 25th April, 1996. He further added that these machines were distributed amongst the poor members of the tribal community as per the scheme formulated prior to election. There is not a whisper that the returned candidate was in any manner instrumental or connected with the distribution of sewing machines. Similarly, the sale of rice at subsidised rate of Rs. 2/- per kg. was a part of the programme undertaken by the State. The Petitioner himself has admitted that he was aware of the scheme of rice being sold at a subsidised rate and it was intended to help those below poverty line. Thus, there is absolutely nothing in the evidence firstly to establish the distribution of sewing machine and sale of rice* at subsidised rate as ''Corrupt practice'' and secondly even to remotely connect the returned candidate Respondent No. 1 with the "corrupt practice". These grounds of corrupt practice as taken by the election Petitioner fail and miserably fail.

Now coming to the irregularities in counting of votes, the learned Counsel appearing for the Petitioner contended that Rules 47, 55, 56 and 60 of the Conduct of Election Rules, 1961 (for short, "the Rules") have been violated. The gist of his allegation is that during transmission of ballot boxes to strong room the vehicles carrying ballot boxes were brought and parked opposite to the Naharkatia Police Station where they waited for hours together and the Presiding Officers left the vehicle in search of tea and snacks. Going by the version as given out by the Petitioner''s witnesses, the vehicles carrying ballot boxes from different polling stations first to be placed before the Police Station from the different polling stations spread over the Constituency. Naturally, it cannot be at the same time and are simultaneously reached the police station. Their timings differed according to the distance. It is significant to note that at no point of time ballot boxes were left unattended. The Home Guards were there guarding the ballot boxes when the Presiding Officers accompanying the vehicles went for a cup of tea. It is not even suggested that any attempt of tempering or breaking open of seals of the ballot boxes were made where the vehicles were parked just opposite to the police station. They were all to proceed in a convoy, under right security to Dibrugarh where a strong room was provided in the Govt. Boys Higher Secondary School. It was suggested that the vehicles on their way to Dibrugarh, were stranded for 15/20 minutes to half-an-hour due to some traffic jam, but even during this period, it is nobody''s case that there was any attempted tempering with the ballot boxes. It is not unusual or unknown that some time such large number of vehicles get stranded on road. It was not even attempted to be shown by the Petitioner that during the transit there was any tempering with the ballot boxes. It takes about 21/2 hours to cover the distance between Naharkatia and Dibrugarh. The vehicles started from the Naharkatia Police Station around 11/11.30 p.m. and reached the Dibrugarh Boys Higher Secondary School by 1 A.M. These are all approximate timings as given by the witnesses and nothing more. It cannot therefore be said that there was any undue delay in arrival of the ballot boxes at the destination - the strong room where they were to be deposited. The evidence on the point to say the least is extremely fluid and hardly makes out a case of any attempt at tampering of the ballot boxes in the course of transit.

So far as counting of votes is concerned, evidence has been led by the Petitioner to show that the counting arrangement was not satisfactory. Seven tables were provided for counting of votes in the Assembly Constituency and on another set of seven tables counting of votes was simultaneously going on for parliamentary constituency. No exact number of counting agents of different contestants has been proved. What is adduced by way of evidence is, that the room was conjusted, there was no proper sitting arrangement, a wire-net enclosure was raised inside which the counting of votes was done while the counting agents of the election Petitioner were sitting outside the enclosure.

It was contended that the counting agents could not properly see the elector''s mark on the ballot paper. The distance between the counting agent and the counting table on which counting was going on was such that their (counting Agent''s) view on the ballot paper was blurred. This resulted in wrongful rejection of even the valid votes. A break was declared on the next day of counting i.e. 9.5.96 while others were asked to go out of the counting hall, the returned candidate Respondent No. 1 and her counting agents were allowed to remain in the hall as the Petitioner and his counting agents found them sitting in the counting hall itself when they returned after the break.

The other irregularities relating to counting as pleaded by the Petitioner is regarding the foreign ballot papers belonging to Dhemaji Constituency with elector''s marks were found in the 7th round of counting. The Petitioner lodged protest to the authorities present and also to the Election Commissioner of India.

Even if the above irregularities in counting are taken on their face value where it would ultimately lead to ? As rightly argued by Mr. Mahanta, learned senior counsel appearing for the Respondent that if the total number of rejected votes 4773 is taken as casted in favour of the election Petitioner, yet the election result is not materially affected, it stand where it is. The margin of votes between the returned candidate and the election Petitioner, the nearest rival far exceeds the rejected number of votes. He argued that the Petitioner has failed to furnish the material particulars of the irregularities. The evidence on the point is too discrepant and defective to be accepted. The witnesses examined by the election Petitioner are interested as they rather have evinced their interest by exaggerating the number of foreign ballot papers. Each one of them tried to improve upon the figure as if they were bent upon covering the difference in number of votes which still remains even after including the rejected votes in favour of the election Petitioner.

As per the statement Ext. 3, the total number of foreign ballot papers of Dhemaji Constituency was only 6 (six) and it has been rightly excluded from counting of valid votes, but the Petitioner and his witnesses who came to be examined in quick succession one after another, made a futile attempt at increasing this figure of foreign ballot papers from 6 to 100 and from 100 to 200 and 300. They were determined to cover the difference of 396 votes, but they have miserably failed in their bid for two reasons, firstly the pleadings on the point is vague and the material particulars are badly lacking. The futility of attempt to improve the case by the Petitioner''s witnesses is too obvious.

The nature and proof required for allowing scrutiny and recounting of votes is by now well settled by series of decision of the Apex Court. Before dealing with the evidence it would not be out of place to recapitulate the principles governing recounting. They are - (a) a recounting is not granted as of right but on evidence of good grounds for pleading that there has been an error on the part of the Returning Officer in improper rejection of valid votes or improper reception of invalid votes* the Petitioner is to prima facie establish the errors in counting. He is further to establish that the errors are of such magnitude that the result of the election so far as it relates to the elected candidate is materially affected ; (b) it is important to note that the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous vague and indefinite allegations. Before inspection is allowed the allegations made, against the elected candidate, must be clear and specific and must be supported by adequate statement of material facts. The Court must be prima facie satisfied that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties. The discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void.

Above all it is important to note that the election Petitioner himself admitted that "the total number of ballot papers from Dhemaji as detected was only 6. The statements of votes by respective candidates is total votes. Ext. P/3 is shown. On seeing the same, he states that 6 number of foreign ballots papers from Dhemaji as were detected in the counting hall and the same has been excluded from the total tally of votes." His election agent Sri Suresh Chandra Deka has proved the complaint Ext. I. It relates to polling date at polling station No. 9, He saw the ballot boxes open while the Presiding Officer was moving in the village. He was also in the village when the matter was reported to the Zonal Polling Officer and it was the Zonal Polling Officer who called the Presiding Officer from the village and thereafter the ballot box was sealed. Except for this irregularity, the witness who was the election agent of the election Petitioner has admitted that he did not see any other irregularity in any other polling station of this type. On his own admission, he was in the election office of his party at 5 p.m.

The Zonal Polling Officer has been examined as PW 2, who in his statement states as follows:

On reaching the polling station No. 9, I found the first Polling Officer, 2nd Polling Officer standing ready with ballot boxes properly sealed. When asked about the Presiding Officer, I was informed by the 1st Polling Officer that he had probably gone to answer nature''s call.

This temporary absence of the Presiding Officer even assuming was short, yet it does not help the Petitioner''s case. The election agent in his own showing was in his election office at the time of completion of polling at 5 p.m. he was admittedly not at the polling station. Nothing material derives on this evidence.

About the arrangement in the counting hall, the witness has deposed to the unsatisfactory arrangement of sitting. Arrangement can be best described by quoting the statement of the Election agent:

When we arrived at the Dibrugarh District Library where election counting was held, we were not allowed by the CRPF personnel to enter with the stationary. There was no sitting arrangements for the candidates in the counting hall. Inside the hall, there was sitting arrangements for the candidates. But there was no provision for our candidate to sit inside the hall. Our candidate was standing with our counting agents. The candidate was moving around the counting tables. There was no satisfactory arrangements in the counting hall.

When the ballot boxes were taken from the strong room, it was noticed that 10 boxes were with broken seals, these ballot boxes relating to polling station No. 4,6, 9, 43, 44, 50, 51, 68, 82 and 106. I complaint to the Returning Officer about these irregularities. On a ballot box of polling station No. 43, a brown paper was affixed on it. It was written vote for Pranati Phukan. It was signed by some one as Pradip Karmakar. There was no presiding or polling officer of such name as Pradip Karmakar.

This dis-satisfactory arrangement of sitting does not necessarily prove improper rejection of valid votes as alleged by the election Petitioner. It was suggested and the witness have deposed to the effect that during the break of two hours as declared by the R.O. counting agents of the election Petitioner were driven out of the counting hall but when they returned, to their surprise they found that the counting had already started and the candidate of the ruling party and their men were present in the counting hall.

The Assistant Returning Officer Shri Abu Nasser Iftikar Hussain Borah, who has been examined as PW 6 has on the point has stated:

The counting which started on 8th around 8 lasted till 10th but I cannot precisely say the time. Barring a few minutes break at time, I was practically present during counting period. Break was given to others as well at the same time. The break was given by the District Election Officer. It was for about an hour the witnesses volunteers actually there was a lack of facilities for toilet and other necessities and break had to be given for the purpose. Break was given after 7 and counting was resumed after 7. Before I entered the counting hall the counting had started. Break was given on 9th morning.

So, to suggest that the break was given with some ulterior motive is simply prepostures it, has absolutely no factual foundation.

As far foreign ballot papers found in the counting hall, the Assistant Returning Officer has admitted the fact and only 6(six) ballot papers were found and the same have been excluded from the total as per Ext. 3. Even the election Petitioner is specific about the exact number of these foreign ballot papers being six only. His agent PW 7 has increased it to more than 400, but this is simply imaginary, which has no factual foundation. The same is the case with another witness PW 10 Nalinakhya Handique who was the counting agent of the election Petitioner. He has also joined the chorus increasing the number of foreign ballot papers to 400, a sheer flight of imagination.

There is one more aspect, which still remains to be considered. It relates to the opening of the strong room on 3rd May, 1996 before the appointed hour. The election Petitioner has testified that he arrived around 1 P.M. and he found that the strong room had already been opened. As per the notice Annexure-7 (Ext. P) the strong room was to be opened at 2 p.m. There were other candidates present when he (election Petitioner) arrived at the school. Even if one excludes the evidence of DW 1 Smti. Pranati Phukan, the returned candidate who has testified to the fact that the election agent of the Petitioner Shri Suresh Chandra Deka was present at the time of opening of the strong room. The election Petitioner PW 1 has himself admitted that except for himself, other candidates were also present when he arrived at the school at the time of opening of the strong room. It does not stand to reason that if any tampering was to be done by opening the strong room as is being sought to be suggested it simply could not be in the presence of many other candidates. There is no substance in the suggestion advanced by the Petitioner.

As already noted above, the allegations of corrupt practice as contained in paragraph 5 of the election petition, even if taken as on their face value, yet no case is made out against the returned candidate Respondent No. 1. It is not even pleaded case of the Petitioner that the corrupt practice as alleged were committed within the knowledge much less consent of the returned candidate, Respondent No. 1. The law on corrupt practice is well settled, the allegations must be strictly construed mere statements of the election Petitioner in the form of insinuation and allegation is not enough, the pleadings on the point must be specific with facts and figures. Details of every particulars must be stated giving the time, place and name of persons and above all it must appear from the pleading that the corrupt practices alleged were indulged in by (a) the candidate himself; (b) his authorised Election Agent; (c) or any other person with express or implied consent of the candidate. It is here that the election petition fails in such a specific pleading. The evidence is equally shaky and slander as already discussed above. So far as the prayer for inspection and re-count is concerned, it cannot be claimed as a matter of right, the law on this point has already been discussed above. The Supreme Court by series of judgment as reported in Shri Jitendra Bahadur Singh Vs. Shri Kirshna Behari and Others, Bhabhi Vs. Sheo Govind and Others, , Suresh Prasad Yadav Vs. Jai Prakash Mishra and Others, , Arun Kumar Bose Vs. Mohd. Furkan Ansari and Others, , Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi, , and more recently in Ajit Singh Vs. Bansi Singh and Others, , M.R. Gopalakrishnan Vs. Thachady Prabhakaran and Others, Smt. Ram Rati Vs. Saroj Devi and others, has repeatedly held that a re-count cannot be claimed as a matter of right, nor can it be granted on mere asking of it. The principles governing inspection and re-counting which can be deduced from the above and several other judgments are:

(a) A recount is not granted as of right but on evidence of good grounds, or pleadings that there has been an error on the part of the Returning Officer in improper rejection of valid votes or improper rejection of invalid votes, the Petitioner is to prima facie establish that the errors are of such magnitude that the result of the election so far as it relates to the elected candidate is materially affected;

(b) Secrecy of ballot is sacrosanct and should not be allowed to be violated on frivolous vague and indefinite allegations. Before inspection is allowed, the allegations made against the elected candidate, must be clear and specific supported by adequate statement of material facts;

(c) The Court must be prima facie satisfied that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;

(d) The discretion conferred on the Court should not be exercised in such a way as to enable the Petitioner to indulge in a roving inquiry with a view to fish and materials for declaring the election void.

Applying the above principles, in view of discrepant and defective pleadings and equally slander and slip shod evidence as discussed above, no case for either inspection or recounting is made out. In the result in view of foregoing discussions, this petition fails, it is accordingly dismissed with cost of counsel of Rs. 5,000/-