IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11855 of 2007 RAJESH KUMAR RANJAN Versus THE STATE OF BIHAR & ORS ----------- 4. 23.7.2008 Heard learned counsel for the petitioner, learned counsel for Respondent No.6 and learned counsel for the State. The petitioner is aggrieved by an order dated 28.8.2007 passed by the Election Tribunal-cum- Civil Judge ( Junior Division), Jehanabad in Election Case No.31/2006, by which he has dismissed the election petition filed by the petitioner and accordingly, seeks setting aside the award/ order given by the Civil Judge. The matter relates to election to the post of the Mukhiya of Visunpur Okari Gram Panchayat. Respondent No.6 and others were candidates in the said election and on 10.6.2006 at 10 P.M. the petitioner was declared successful having secured 755 votes whereas Respondent No.6, Shyam Nandan Sharma, had secured 747 votes and thus the petitioner was eight votes ahead from Respondent No.6. On disturbances being created by the supporters of Respondent No.6, the Block Development Officer-cum- Returning Officer asked the petitioner to come on the next day for receiving the certificate but on the next day the petitioner was astonished to hear that Respondent No.6 has been declared as a successful candidate by margin of two votes as having secured 754 votes whereas the petitioner had secured 752 votes. The petitioner immediately sent a Fax to the State Election Commission making allegations against the Returning Officer and the corrupt practices adopted in favour of Respondent No.6 declaring him 2 elected as Mukhiya of the said Gram Panchayat. The State Election Commission vide letter dated 12.6.2006 directed the District Magistrate-cum-District Returning Officer to make an enquiry on the allegations levelled by the petitioner. The petitioner, in the meantime, was insisting upon the recounting but the same was not done. Ultimately, the petitioner moved the Election Tribunal challenging the election and praying for recounting of votes of booth Nos. 60, 61, 62, 63, 72 and 73. It was alleged by the petitioner that after subsequent manipulations, the actual receipt of votes of Respondent No.6 were increased at booth no.61 from 15 to 17, booth no.63 from 33 to 34, booth no.65 from 56 to 57, booth no. 72 from 64 to 65 and booth no. 73 from 162 to 168 and at the same time the votes of the petitioner were reduced at booth no.60 from 71 to 69 and at booth no.62 from 182 to 181. By judgment and order dated 28.8.2007, several issues were framed of which issue no.(ix) was whether the counting of votes of Mukhiya of Vishunpur Okari Gram Panchayat is valid and legal. On a consideration of the evidence led by the parties and materials on the record and considering the fact that despite several orders and directions of the Tribunal Opposite Party Nos. 1 to 5 did not produce the original copy of the documents like Forms 20 and 21 nor did they produce any report of the District Returning Officer as directed by the State Election Commission by its letter dated 12th June, 2006 and considering the other circumstances and the 3 law laid down by this Court, the Tribunal came to the conclusion that without opening of box for the purpose of recounting of the ballots of booth no.63, the real matter in controversy would not be ascertained. Hence in order to determine the real matter in controversy, it was ordered that ballot papers of Booth No. 63 must be opened before the Court and accordingly, it was opened on 31.8.2007. After the recounting done in court it was found that the allegation of the petitioner was true and wrong and invalid votes had been counted in favour of Respondent No.6 thereby increasing the votes in his favour from booth no.63 from 33 to 34. However, the Court held that even after reducing the said votes, Respondent No.6 would still have obtained 753 valid votes whereas the petitioner has obtained 752 valid votes, which does not materially affect the result of the election and accordingly, dismissed the election petition. Learned counsel for the petitioner submits that the court below has acted in a most illogical manner by going for recounting of the votes with respect to booth no. 63 alone instead of all the five booths with respect to which manipulations had been alleged. It is submitted that the manipulations were of a substantial nature resulting in increase of the votes in favour of Respondent No.6 from 747 to 754 and at the same time decrease of the votes obtained by the petitioner from 754 to 752. It is stated that when after recounting the votes of booth no.63, it was found that the allegation made by the petitioner was correct the Tribunal ought to have ordered for recounting of votes with respect to the other booths 4 also regarding which the allegations of manipulations had been made but instead of doing so, the Election Tribunal has decided the matter only on the basis of findings with respect to recounting of the votes of a single booth. Learned counsel for Respondent No.6, on the other hand, supports the judgment and order stating that the Court having come to the conclusion that recounting was required with respect to booth no.63, it had gone for recounting the same but since even after recounting no difference was made, he has rightly dismissed the election petition. However, learned counsel could not explain as to under what circumstances recounting was ordered with respect to only booth no.63 and not the other booths with respect to which the allegations have been made by the petitioner. This Court is of the view that having accepted broadly the allegations made by the petitioner and decided to go for recounting with respect to booth no.63 and on doing so having found that the allegation was true, there was no justification at all as to why the votes of the other booth nos. 60, 61, 62, 65, 72 and 73 were also not counted. Since the difference in the votes of the petitioner had already, according to the judgment, come down to just one vote, it was all the more essential for the Court to have directed recounting of votes of the other booths also, when it had, generally speaking, arrived at a correct conclusion in the matter regarding manipulation by the respondents, in order to ensure the purity of the election process. 5 In the aforesaid facts and circumstances and in the light of what has been discussed above, the judgment and order dated 28.8.2007 cannot stand to the extent that it has stopped after the recounting of votes only of booth no. 63. To that extent the impugned judgment and order is set aside and the Court below is directed to hold recounting with respect to booth nos. 60, 61, 62, 65, 72 and 73 also in the Court and thereafter pass appropriate order in accordance with law. The writ application is, accordingly, allowed. VPS ( Ramesh Kumar Datta,J.)