IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17063 of 2008 MD.MUSHTAQUE s/o late Md. Hadees, resident of village Aurai, P.O. Aurai, P.S. Puraini,District-Madhepura. Versus 1. KAPILDEO SINGH s/o late Sanichar Singh, resident of village- Aurai, P.O. Aurai, via- Puraini, P.S.Puraini,District- Madhepura. 2. Md. Irfan s/o late Md. Jhakri Nadaf, resident of village Chanola Rasoli Tola, P.O. Aurari, P.S. Puraini,District- Madhepura. 3. Md.Islam Ali s/o Md.Usman, resident of village Chhoti Kherho, P.O. Aaurai, P.S. Puraini,District- Madhepura. 4. Umesh Sharma s/o Danesh Sharma, resident of village- Bari Aurai,P.O.Aurai, P.S.Puraini, District- Madhepura. 5. Parmanand Shama s/o Baudhi Sharma alias Pramod Sharma, resident of village Bari Aurai, P.O. Aurai, P.S. Puraini, District- Madhepura. 6. Mamoranjan Singh s/o Hardeo Singh, resident of village- Aurai, P.O. Aurai, P.S. Puraini, District- Madhepura. 7. Madan Choudhary s/o Ram Kishun Choudhary, resident of village Lali Tola, P.O. Aurai, P.S. Puraini, District- Madhepura. 8. Vinod Sharma s/o Ghanshyam Sharma, resident of village Chhoti Kherho , P.O. Aurai, P.S. Puraini, District- Madhepura. 9. Shiv Kr. Sharma s/o Ayodhi Sharma, resident of village Chhoti Kherho, P.O. Aurari, P.S. Puraini, District- Madhepura. 10.Shivanandan Pd. Mandal s/o Sitaram Mandal, resident of village Basi Kherho ,P.O. Aurai, District- Madhepura. 11. Shivanandan Pd. Singh s/o late Mahadeo Pd. Singh, resident of village Bari Kherho, P.O. Aurai, P.S. Puraini,District- Madhepura. 12. Sitaram Sharma s/o Tugha Sharma, resident of village Bari Aurai, P.O. Aurai,P.S. Puraini,District- Madhepura. 13. Suresh Sharma s/o late Kunj Bihari Sharma, resident of village Bari Aurai, P.O. Aurai, P.S. Puraini, District- Madhepura. -- Respondent 1st set 1. The State Election Commission through its Commissioner Sone Bhawan Birchand Patel Marg,Patna. -- Respondent 2nd set. 1. The State of Bihar through the District Magistrate / District Election Officer, Madhepura. 2. The Circle Officer, Puraini Block/ Returning Officer, Puraini Anchal District- Madhepura. 3. The Welfare Officer/Asst. Returning Officer,Puraini Anchal- District- Madhepura. -- Respondent 3rd set ----------- 2 For the Petitioner : Mr. S.N.P.Sharma, Sr.Adv and Mr. Ashok Kumar. For the State : Mr. RamSubhash Singh, A.C. to A.A.G.6 For the Commission : Mr. Sanjeev Nikesh. For respondent no.1 : Mr. Yogesh Chandra Verma,Sr.Adv. For respondent nos. 3,5,6,11,12 and 13 : Mr.Ras Bihari Thakur. 9 16.12.2009 Petitioner had contested the election for the post of Mukhiya of Aurai Gram Panchayat, District- Madhepura, in the year 2006. Having lost to one Kapildeo Singh, the difference between the two was of 23 votes. Petitioner on recount, at the time of election, had 693 votes and respondent- Kapildeo Singh had 516 votes. Kapildeo Singh was declared elected. The election was challenged by the petitioner before the Election Tribunal in Election Case no. 6 of 2006 being the Court of Munsif, Madhepura. The learned Munsif, Madhepura, considered the evidence and held that the election stood vitiated. The result was re-election. As Kapildeo Singh non seated , he filed writ petition being C.W.J.C.No. 10714 of 2007, which was disposed of by judgment and order dated 13.2.2008 wherein this Court set aside the order of the Tribunal and remanded the matter back with a specific direction to the Tribunal to re-count the votes and then pass a final order. The said Kapildeo Singh then filed L.P.A. being L.P.A. No. 163 of 2008, which was summarily dismissed by order dated 10.9.2008, which is quoted hereunder: “ Since the order of the Election tribunal lacks in clarity about the exact number of votes polled in the election and the exact 3 number of valid and invalid votes, the Single Judge cannot be said to have erred in remanding the matter to the Election Tribunal for re- counting and then pass a fresh order sequel to the re-counting. Letters Patent Appeal is disposed of accordingly. “ The said Kapildeo Singh then appealed to the Supreme Court unsuccessfully. Thus, the matter became final that the Election Tribunal had to re-count the votes and then declare the result. The matter was then taken up by the Election Tribunal. It re-counted the votes. On re-count it was found that there was 4099 valid votes and 301 invalid votes. Thus the total number of votes counted was 4400. On 4400 votes being counted , Kapildeo Singh was declared elected by a margin of five votes. Thus, his election , as per original result, was sustained though with different number of votes. Mr. S.N.P.Sharma, learned Senior Counsel appearing in support of the writ petition points out that the counting as such totally stands vitiated for the simple reason that as per initial Form 20, the total number of votes that were polled were 4493.Out of which valid votes were 4264 and invalid votes 229 but, as noticed, by the Election Tribunal, the total votes sent to the Tribunal for counting were 4099 valid votes and 301 invalid in totalling 4400 votes and thus 93 votes vanished somewhere in between .The difference in wining marginally being only of five votes on re-count and 23 votes as per original count. This unexplained 93 votes being not found and not counted on re- count vitiates the entire process. From the order sheet of the writ petition it would be seen that with specific order for last one year the 4 matter was adjourned for the State to explain this discrepancy . Today an affidavit is filed. State has taken a stand that it had sent all 4493 votes to the Tribunal but what is most surprising is that the State further states that the Tribunal , in fact, had counted all 4493 votes, that is all happening of the Tribunal, which is quoted hereunder : “ Kapildeo Singh has obtained the highest No. of votes which is 699. He was also declared elected during original counting by the election authority in the year 2006. In that counting total number of votes in No. as 4493, but only 4400 votes.” That is the finding of fact of the Tribunal that it had not given 93 votes. Mr. Yogesh Chandra Verma, learned Senior Counsel appearing on behalf of Kapildeo Singh submits that as on both occasions it is Kapildeo Singh, who has been declared elected, this Court should not interfere in the matter. I am afraid, I cannot accept this submission. First, as per original Form 20, he was declared elected. That was found to be wrong and the Election Tribunal, at the first instance, set aside the Election as a whole and ordered re-election. This Court testing the limit order of re-count. On re-count , 93 votes went missing and results were declared. The chart ,as prepared and shown ,hereunder would show that the results being now lost all its sanctity because the case of the State is that all votes were sent to the Tribunal and the case of the Tribunal itself, as per record, that 93 votes shortage were sent to it. Thus, 93 votes have vanished. 5 Original Form 20 Election Tribunal Valid Votes 4264 4099 Invalid votes 299 301 Total 4493 4400 Votes in favour of Kapildev singh 716 699 Votes in favour of Petitioner 693 694 Winning margin 23 05 The margin being only five votes on re-count and 23 votes as originally counted, 93 votes are substantial specially when we feel that invalid votes were 229 on the earlier occasion and 301 on re-count. Thus, in my view, for this unexplained discrepancy , the results loose all authenticity and reliability. The only course i.e. left is to declare that the election result stands vitiated, as aforesaid and the only direction this Court, in such circumstances, can give is for holding re-election. It is only by that process the faith in democracy can be restored. I, thus, set aside the judgment of the Election Tribunal and ordered accordingly. The writ petition is thus allowed. Singh (Navaniti Prasad Singh, J.)