ELECTION PETITION No.18 OF 2005 --------- DR.RAM PRAKASH MAHTO --------- Petitioner Versus TAR KISHORE PRASAD -------- Respondent ------- For the Petitioner :Mr. S.B.K.MANGALAM, Advocate. For the Respondent :M/s S.N.P.SHARMA , Senior Advocate & AMRENDRA KUMAR ,Advocate -------- P R E S E N T THE HON'BLE MR. JUSTICE S.N. HUSSAIN -------- S.N.Hussain,J. This election petition has been filed by Dr. Ram Prakash Mahto under the provision of Sections 80 and 80A of the Representation of Peoples Act, 1951 (hereinafter referred to as ‘the Act’ for the sake of brevity) challenging the election of the sole respondent Tar Kishore Prasad who has been declared elected for 14th Bihar Legislative Assembly from 142, Katihar Assembly Constituency for which election was held on 26.10.2005. 2. The admitted facts of the matter are that a notification was issued on 28.09.2005 calling for the voters of 142 Katihar Assembly Constituency to elect their representative of 14th Bihar Legislative Assembly fixing 05.10.2005 as the last date for filing nomination within which period altogether 10 candidates, including the sole petitioner and the sole respondent, filed their nomination papers, out of which the petitioner was an official candidate of Rashtriya Janta Dal political party, whereas the sole respondent filed his nomination as an official candidate of Bhartiya Janta Party political party and after scrutiny on 06.10.2005, the nomination papers were found valid and were accepted and a list of validly nominated candidates was published by the Returning Officer, namely Sub- Divisional Officer, Katihar, whereafter election was held in various booths of the - 2 - said constituency on 26.10.2005 and the votes were counted on 22.11.2005 and finally on the same date result was declared holding the sole respondent as the successful candidate. 3. The aforesaid election is under challenge in the instant election petition on various grounds. In reply to the claim of the election petitioner, the sole respondent filed his written statement on 05.09.2006. After completion of the pleadings following issues were framed by this court on 10.10.2006:- (i) Whether the election petition as framed is maintainable? (ii) Whether the election petition is fit to be dismissed summarily for non-compliance of mandatory provisions of Sections 81, 82 and 117 of the Representation of the People Act, 1951 and for not disclosing the complete cause of action under Order VII Rule 11 of the Code of Civil Procedure? (iii) Whether the election of the sole respondent is void, illegal and is fit to be set aside? (iv) Whether the refusal of the Presiding Officer of the concerned booths to allow the voters to exercise their franchise on the basis of alternative documents prescribed by the Election Commission has materially affected the election of the Assembly Constituency concerned? (v) Whether the petitioner’s voters having not been given their voters Identity Card by the District Administration with malafide and oblique purposes, the entire purpose of the election was defeated, which affected the election of the Assembly Constituency concerned? (vi) Whether refusal to act as per the instructions of the Election Commission of India with respect to the poll on booth nos.9 and 9A, the Returning Officer had failed to comply the instruction issued under Article 324(1) of the Constitution of India, which has materially affected it? (vii) Whether the election of the sole respondent is otherwise bad in law? Issue nos.(iv), (v) and (vi) 4. These three issues are taken up together for consideration as they are inter- related. The election petitioner has raised these issues claiming that the voters were - 3 - not given their electoral photo identity cards (hereinafter referred to as ‘EPIC’ for the sake of brevity) by the District Administration by malafide and oblique purposes, whereas the Presiding Officer of the concerned booths refused to allow voters to exercise their franchise on the basis of alternative documents as prescribed by the Election Commission, which, according to the petitioner, materially affected the election of the Assembly Constituency and defeated the entire purpose of the election and hence the election of the sole respondent from the said constituency is clearly void and illegal and is fit to be set aside. 5. It may be stated in this connection that all the aforesaid issues raised by the petitioner are only with respect to booth no.9 and 9A of the said constituency situated at Primary School, Derhua Purana (Katihar), which is part of 142, Katihar Assembly Constituency, but it assumed vital importance for the instant case as the petitioner has lost the election by 116 votes only, whereas the aforesaid two booths had 1400 voters ( 752+ 648) out of whom only 15 voters (14+1) could cast their votes and the remaining 1385 voters of the said two booths could not cast their votes. 6. In support of his contention, the election petitioner has produced nine witnesses, out of whom, P.W.1 is the petitioner himself and has fully supported the statements, made in the election petition and has also given details about the alleged occurrences, P.W.2 is Md. Safique who was the polling agent at booth no.9, whereas P.W.3 Md. Soaib was polling agent of booth no.9A. Apart from them, P.W.4, 5, 6 and 7, namely Md. Sajjad, Md. Gaffar, , Md. Sajjad and Md. Yasin respectively, were voters of the booths in question and had supported the claim of the petitioner. P.W.8 is a Reader in D.S.College, Katihar and was column writer of Daily Hindustan, whereas P.W.9 is the Press Photographer of the said newspaper of the Katihar Office and they proved news items as well as photographs published - 4 - in the said newspaper with respect to the alleged refusal of the election authorities to allow the voters to cast their votes. 7. Apart from the aforesaid oral evidence the election petitioner has produced several documentary evidence, out of which Ext.-1 is copy of the fax message sent by the petitioner to the election Commission of India on 26.10.2005, Ext.-2 is also letter of the petitioner dated 26.10.2005 to the Chief Election Commissioner, New Delhi and Chief Election Officer, Patna, whereas Ext.-3 is the communication report of the said letter to the concerned authority. Ext.-4 is the certified copy of petition submitted before the Chief Judicial Magistrate, Katihar in Complaint Case no.1294 of 2005, whereas Ext.-5 is letter of petitioner to the Chief Election Commissioner, New Delhi dated 30.07.2005 and Ext.-6 is D.O. letter dated 10.09.2005 of one Sri Anand Kumar, Deputy Election Commissioner with some direction issued through Election Commission of India, New Delhi. Ext.-7 is the voter list of booth no.9 and Ext.-8 is the entire ordersheet prepared by Returning Officer. Furthermore Ext.- X series are copies of Hindustan newspaper, EPIC distribution register page 114 to 150, photo ocpy of voter list of booth no.9 A, application of villagers to Returning Officer, order dated 11.10.2005 of Election Commission of India, letter of Election Commission of India to Chief Electoral Officer, letter of Returning Officer to Sri Nikhil Choudhary, the Hindustan newspaper of 20.05.2005, 17.05.2007 and 21.05.2005. 8. On the other hand, respondent produced 16 witnesses, out of whom, D.W.1 was the respondent himself, D.Ws.2 to 9 were the voters of the two booths in question, D.W.10 was B.D.O.cum- Assistant Returning Officer, D.W.11 was the B.D.O., D.W.12 was the Presiding Officer of Booth No.9, D.W.13 was the S.D.O.- cum-Returning Officer, D.W.14 was the Presiding Officer of booth no.9A, D.W.16 was the B.D.O( Law and Order), whereas D.W.15 was the District Magistrate-cum District Election Officer, during the relevant period. The said election authorities - 5 - have specifically stated that the elections were held as per the direction of the District Election Officer vide memo dated 20.10.2005, Ext.-Y. 9. Apart from the said oral evidence, the respondent produced several exhibits, out of which, Ext.-A was the FIR, Ext.-B was the signature of Sri Umesh Chandra Biswas on the FIR, Ext.-C was the report submitted by Prahalad Lall, Ext.-D was the report submitted by the Presiding Officer, Ext.-E was the report of the Returning Officer, Ext.-F was the diary of Presiding Officers of booth nos.9 and 9A, Ext.-G was the report of the other Presiding Officer, Ext.-H was the report of Rajiv Rathore dated 26.10.2005 and Ext.- Y was the directions of the District Magistrate-cum- District Election Officer vide memo no.1628 dated 20.10.2005 to all the Presiding Officers of the booths. 10. The allegation of the petitioner is that EPICS were not supplied to the said voters, but when they came to vote authorities at the booth refused to allow them to vote without EPICS, although the said voters had come with alternative documents as prescribed by the Election Commission for their identification. It was also claimed by the petitioner that the voters of the said two booths were his strong supporters and had they been allowed to vote, the petitioner would have obtained several hundred votes and he would have naturally succeeded in the election. On the other hand, it is the case of the respondent that EPICS were supplied to the voters as EPIC numbers were specifically mentioned against their respective names in the voter list at the two booths and hence it was the duty of the voters to bring their EPICS along with them for the purposes of voting, but they intentionally did not bring the EPICS which were supplied to them. The respondent also claimed that only those voters can be allowed to vote on the basis of alternative documents to whom the EPICS had not been supplied and hence the voters to whom EPICS were supplied, but they did not produce the said EPICS, were rightly not allowed to cast their votes. - 6 - 11. So far EPICS are concerned, they had been introduced far back by 1958 Act to check bogus voting by proper identification of the voters, but issuance of EPICS practically started from the year 1995 as before that no voter was asked to provide EPIC or alternative documents and they were allowed to cast their votes only when they were recognized by the polling agents who were posted for that purpose as provided in Rule 36 of the Election Rules, 1961 (hereinafter referred to as ‘the Rules’ for the sake of brevity) The function of the Presiding Officer or the Polling Officer, as the case may be , in that regard has been provided in Rules 36 and 37 of the Rules. These Rules are although of 1961, but they have not been given a go-bye even after 1995 when the EPICS had been introduced. In the said circumstances, EPICS are provided only to facilitate the process of identification by the Polling Officer or the Presiding Officer, but it cannot be used as a bar to the right to vote as prescribed under Section 62((1) of the Act subject only to the conditions as prescribed under Section 62(2) to (5) of the Act. The Hon’ble Apex Court in case of Shyamdeo Pd. Singh Vs.Nawal Kishsore Yadav, reported in (2000) 8 Supreme Court Cases 46 has specifically held that unless disqualified under Section 62(2) to (5) of the Act any person enrolled in the electoral roll cannot be excluded from exercising his right to cast vote. 12. From the provisions made in the relevant Acts and Rules it is quite apparent that the production of EPICS cannot be made a condition precedent for voting as EPIC has been provided only to facilitate the procedure. Hence the Hon’ble Apex Court in case of M/s R.N.Jadi & Brothers & Ors. Vs. Subashchandra, reported in 2007(4) PLJR 106 (SC) clearly held that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant and not a resistant in the administration of justice. It has also been held that merely because a provision of law is couched in a negative language implying mandatory character, - 7 - the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form. In another decision in case of Shreenath and anr Vs. Rajesh and Ors, reported in AIR 1998 SC 1827, the Hon’ble Apex Court has clearly held that a procedural law should not ordinarily be construed as mandatory, because the procedural law is always subservient to and in aid of justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. 13. In 2004 Handbook for Returning Officers issued by Election Commission of India, Clause 27.3 specifically provides that from the year 2000, the Commission has been insisting on documentary identification of electors who are required to produce the electoral photo identity card (EPIC) to establish their identity and that those electors who have not been issued with their EPIC, or those of them who are unable to produce it for reasons beyond their control, should produce one of the alternative documents of identification specifically permitted by the Commission. The Commission has been issuing orders in this regard at the time of every election and District Election Officers have been directed that they must refer to the order issued by the Commission and bring it to the notice of all Presiding Officers during training and these orders or circulars issued by the Commission should also be given wide publicity for the information of electors. For compulsory identification of electors through EPIC or alternative documents, the Polling Officers or In-charge of identification of voters are to satisfy themselves about the identity of the electors after examining the EPIC or the alternative documents, as the case may be, and in case of any doubt the elector should be directed to present himself before the Presiding Officer who should make a further probe to satisfy himself about the identity of the elector. The Presiding Officer is to hand over the person to the police with a written complaint in case he is proved - 8 - to be an impersonator. In the aforesaid circumstances, it is quite apparent that the Election Commission has specifically provided that if the EPIC has not been issued to any voter or if any EPIC is issued and the voter is unable to produce it for reasons beyond his control, he should be allowed to vote on the basis of one of the alternative documents of identification specifically permitted by the Commission and in any case it is the satisfaction of the Presiding Officer which is of paramount importance for allowing an elector to exercise his franchise. 14. By memo No. 3/4/1D/2005. NYA. ANU II.dated 11.10.2005 (Ext.X), the Election Commission considered the entire matter as well as the specific provisions of law with respect to identification of electors and directed all the authorities concerned with the election of Bihar Legislative Assembly Constituencies going to be held in October, 2005 to see that the electors have to identify themselves by the EPICS supplied to them and only those electors who had not received EPICS, should be allowed to vote on the basis of any of the alternative documents to the satisfaction of the authorities concerned. Following are the 17 alternative documents mentioned in the said order of the Election Commission. (i) Passports, (ii) Driving Licences, (iii) Income Tax Identity (PAN) cards. (iv) Service Identity Cards issued to its employees by State/Central Government, Public Sector Undertakings, Local Bodies or Public Limited Companies, (v) Bank/Kisan/Post Office Passbooks (Accounts opened on or before 31.08.2005), (vi) Student Identity Cards with photographs issued by Recognised Educational Institutions issued on or before 31.08.2005, (vii) Property documents such as Pattas, Registered Deeds, etc., (viii) SC/ST/OBC Certificates issued by an officer not below rank of the Sub Divisional Officer on or before 31.08.2005, - 9 - (ix) Pension documents in original such as ex-servicemen’s Pension Book/ Ex-servicemen’s Pension Payment Order, Exe-servicemen’s widow/Dependent certificates, Old Age Pension Cards/ Widow Pension Cards, (x) Railway Identification Cards issued on or before 31.08.2005, (xi) Freedom Fighter Identity Cards, (xii) Arms Licenses, (xiii) Certificate of physical handicap issued by competent authority on or before 31.08.2005, (xiv) Red Ration Card issued by State Govt. of Bihar for people below poverty line, on or before 31.08.2005, (xv) Yellow Ration Card issued by State Govt. of Bihar under Antodaya Scheme, on or before 31.8.2005, (xvi) Green Ration Card issued by State Govt. of Bihar for people above poverty line on or before 31.8.2005, (xvii) White Ration Card issued by State Govt. of Bihar under Annapurna Scheme, on or before 31.8.2005. 15. However, the District Election Officer-cum-District Magistrate, Katihar issued instructions vide Memo No.1628(Elect.) Katihar dated 20.10.2005 (Ext.Y) to all the Presiding Officers to permit voters against whose names EPIC numbers were mentioned in the voter list to cast their votes only when they produce their EPICS and only those voters against whose names EPIC numbers were not mentioned in the voter list should be allowed to cast their votes on the basis of the aforesaid alternative documents. These facts have been admitted by the then District Election Officer-cum-District Magistrate, Katihar who deposed as D.W.15 for the respondent. These facts were also admitted by the Returning Officer, Assistant Returning Officers as well as the Presiding Officers of the booths concerned namely Booth nos 9 and 9A, who deposed as DWs 13, 10, 12 and 14 respectively for the respondent. - 10 - 16. From the aforementioned oral and documentary evidence it becomes quite apparent that memo no.1628 dated 20.10.2005 (Ext.Y) issued by the District Election Officer to all the Presiding Officers of the election concerned was not in accordance with and in conformity to the directions of the Election Commission issued to all the District Election Officers bearing memo no.3/4/ID/2005 dated 11.10.2005 ( Ext.X) as the Election Commission had mentioned that those electors, who had not received EPICS, should be allowed to vote on the basis of any of the alternative documents, but the District Election Officer had directed all the Presiding Officers to permit only those voters to cast their votes on alternative documents against whose names EPIC numbers were not given in the voter list. Hence the District Election Officer had changed the category of voters who can be allowed to vote without EPICS as the Election Commission allowed those electors who had not received EPICS to vote without it on the basis of alternative documents, whereas the District Election Officer has allowed only those voters to cast their votes without EPICS against whose name EPIC number was not given in the voter list. Thus the District Election Officer shifted the emphasis from receipt of EPICS as provided by the Election Commission to recording of EPIC in voter list. 17. The petitioner has specifically claimed that although EPIC Distribution Register had been prepared, in which EPIC numbers had been mentioned against most of the voters, but only a few of them had been supplied and had received EPICS, whereas most of them had not received the EPIC although EPIC numbers had been mentioned against their names which is apparent from the Register. It is also claimed that the voter list had been prepared and EPIC numbers had been mentioned therein after taking into account only the number given in the EPIC Distribution Register and not the receipt by voters. The aforesaid claim has been proved by the voters who deposed as P.W.4 and P.W.5, who stated that no - 11 - EPIC was supplied to them, but when they went to the polling booth for casting their votes with alternative documents, they were not allowed to vote as EPIC numbers were mentioned against their names in the voter list. Furthermore, P.W.6 stated that although EPIC had been issued to him earlier, but it was burnt with his house and no fresh EPIC was issued to him and when he went to cast his vote along with alternative document he was not allowed to vote. 18. On the other hand, the respondent could not produce any evidence to show that EPICs were received by the voters against whom EPIC numbers were given in the voter list. The EPIC Distribution Register contains several columns, namely serial number, voter’s name, EPIC number and signature of the recipients. However, the respondent was unable to produce any EPIC Distribution Register which could show the signature/ T I of all the persons against whose names EPIC numbers were given in the voter list. None of the witnesses also could say that all the electors against whose names EPIC numbers were given had received the EPICs. Even D.W.15, the District Election Officer, evaded the question by saying that he had not seen the EPIC Distribution Register as it was not possible for him to see the same. He could only say that all efforts were made to ensure that every voter receives his EPIC, but he could not say whether the said efforts were fruitful. Furthermore, the claim of the respondent as well as the statement of the District Election Officer is that the entries made in the voter list were final as they were obtained from the EPIC Distribution Register, but when the EPIC Distribution Register itself could not show that EPICs were supplied to the voter concerned, the entire process adopted by the authorities concerned appears to be in complete violation of the specific instruction of the Election Commission. 19. The Hand Book of 2004 for the Returning Officers issued by the Election Commission of India specifically provides in Clause 27.3 thereof that those electors who have not been issued with their EPIC or those of them who are - 12 - unable to produce it for reasons beyond their control should produce one of the alternative documents for their identification. By its order dated 11.10.2005 (Ext.X), the Election Commission had permitted those electors, who had not received EPIC, to cast their vote on the basis of any of the alternative documents permitted by the Commission. But in the instant case, the District Election Officer had admittedly issued directions vide memo dated 20.10.2005 (Ext.Y) completely overlooking the said direction of the Election Commission and ignoring those persons who were supplied EPICs but were unable to produce it due to reasons beyond their control and also ignoring those persons against whose names EPIC numbers were mentioned in the voter list, but EPICs were not received by them. It is thus quite apparent that the instructions of the District Election Officer dated 20.10.2005 (Ext.Y) was not only violative of the directions of the Election Commission, but was also illegal, arbitrary, perverse and without jurisdiction in view of the clear decision of the Hon’ble Apex Court in case of Shyamdeo Pd. Singh (supra), M/s R.N.Jadi & Brothers & Ors (supra) and Shreenath and anr (supra). 20. In the said facts and circumstances it is quite apparent that the said illegal instruction of the District Election Officer not to allow such voters as mentioned above to exercise their franchise on the basis of the alternative documents prescribed by the Election Commission has materially affected the election of the Assembly Constituency in question specially when the respondent has won the election only by 116 votes, whereas out of 1400 voters only 15 voters could cast their votes on the booths in question, namely Booth nos.9 and 9A. 21. Article 324(1) of the Constitution of India specifically provides that the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under the - 13 - Constitution shall be vested in a Commission ( referred to in the Constitution as the Election Commission). Hence, superintendence, direction and control of the Presiding Officer of such elections remain with the Election Commission. 22. Furthermore, Section 20-A of the Act provides general duties of District Election