ORISSA HIGH COURT : CUTTACK CRLMC NO. 2536 OF 2003 In the matter of an application under section 482 of the Code of Criminal Procedure. ------------- Sri Saroj Kumar Panda …… Petitioner -Versus- State of Orissa …… Opp. Party For Petitioner : M/s. P.R.Dash, J.K. Sahoo, K. Raj, S.K.Mohapatra & D.P.Mishra. For Opp. Party : Addl. Standing Counsel ----------------------- Decided on 11.01. 2010. -------------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ------------------------------------------------------------------------------------------ M.M. Das, J. This application under section 482 Cr.P.C. has been filed by the petitioner, who is the Proprietor of J.K. Printers, for quashing the order of cognizance dated 26.7.2002 passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No. 54 of 2002, against him. 2. The prosecution case in brief is that the accused no.1 – Hrusikesh Mallick is the Ex-Secretary of Children’s Literature Committee, Bhubaneswar and is a public servant. He showed undue favour to the accused no. 2 (petitioner herein) by entrusting him to publish 24 nos. of manuscripts of selected writings of eminent writers of the State to be supplied to 12760 numbers of primary schools of the State. The accused no.1 entered into an agreement with the accused no.2 (petitioner) on 28.11.1992 for printing the above books. The petitioner was supplied with papers worth Rs. 8,09,424/- and required amount towards printing charges and other expenses totaling to Rs. 20,80, 151/- (including cost of paper). The petitioner supplied 69, 120 numbers of books worth Rs.5,52,960/- and did not supply the remaining books worth Rs.18,96.960/-. After completion of investigation, charge sheet no. 478 dated 27.12.2000 was submitted for alleged commission of offence under section 120-B I.P.C. read with sections 13 (2) and 13 (1)(c) (d) of the Prevention of Corruption Act, 1988. 3. Mr. P.R. Dash, learned counsel for the petitioner submitted that there is no material available on record to even prima facie show commission of the aforesaid offence by the petitioner, more specifically, offence under section 120-B IPC . None of the ingredients of section 120-B IPC are revealed from the materials collected during the investigation. Mr. Dash contended that offence under the Prevention of Corruption Act cannot be alleged against a private person. According to him, even accepting the entire materials produced by the prosecution, no case is made 2 out against the petitioner for alleged commission of offence under the aforesaid sections. 4. The case diary was called for. On scrutiny of the same, it is found that in the statements recorded under section 161 Cr.P.C., a Senior Assistant of the office of the Children’s Literature Committee has stated that the petitioner did not supply the remaining books in spite of the reminders. The auditor, who audited the accounts, recommended for recovery of Rs.18,96,960/- from the petitioner. The Secretary of the Children’s Literature Committee, who has given his statements under section 161 Cr.P.C., has stated that the accused – petitioner did not supply the remaining books in spite of the reminders. Other witnesses have made similar statements against the petitioner. There is absolutely no material to show, prima facie, that there was a conspiracy between the petitioner and the accused no.1. The petitioner, being the Proprietor of a private firm, cannot be implicated for an offence under the Prevention of Corruption Act, 1988. 5. Since, there is absolutely no material to show the offence of conspiracy to have been committed, as there is no statement showing that there was meeting of mind between the two accused persons and accepting the entire materials collected by the prosecution during investigation does not make out a case 3 under section 120-B I.P.C. against the petitioner, no fruitful purpose will be served in maintaining the order of cognizance impugned in this petition against the petitioner. Accordingly, the order of cognizance dated 26.7.2002 passed in T.R. No. 54 of 2002 by the learned Special Judge (Vigilance), Bhubaneswar against the petitioner is quashed. The case, however, shall continue as against the other accused person. The CRLMC is accordingly allowed. ……………………… M.M. Das, J. Orissa High Court, Cuttack. January 11th , 2010/Biswal. 4 TRP(CRL) NO. 12 of 2008 11. .01.2010 In view of the judgment passed today in CRLMC No. 2536 of 2003, no order is necessary to be passed in this petition, which is accordingly disposed of. ……………………… M.M. Das, J. 5 Election to the Office of Sarpanch of Odang Gram Panchayat, which consists of 15 wards, was held on 15.02.2007. The petitioner was returned as the Sarpanch of the said Gram Panchayat in the aforesaid election. The election of the petitioner has been challenged by the opposite party in Election Misc. No.56 of 2007 pending before the learned Civil Judge (Jr. Division), Bhadrak. The grounds set forth in the election petition filed under section 31 of the Orissa Gram Panchayat Act, 1964 are that 12 numbers of votes cast in favour of the election petitioner have been wrongly rejected, three ballot papers one each in Booth Nos.4,5 and 7 have been illegally accepted in favour of the writ petitioner. Nine persons have voted in Booth Nos.8 as well as Booth No.14 and similarly 5 persons have cast their votes in Booth No.7 of Odang Gram Panchayt as well as in Booth No.1 of Chhyalsingh Gram Panchayat and such persons were supporters of the writ petitioner, who was the opposite party in the election petition. The petitioner on appearing in the Election Misc. Case filed his written statement. After closure of evidence, the opposite party filed a petition on 18.02.2008, inter alia, making a prayer as follows: “a) that the counter foils of the ballot papers issued to the votes of booth nos.7,8,11,13,14 of Odang Gram Panchayat who are specifically mentioned in the election petition be marked and the 6 corresponding ballot papers be taken off from the valid ballot papers. b) That the ballot papers counted for the opposite party and the rejected ballot papers be inspected, scrutinized and recounted”. The petitioner filed his objection to the said application. Upon hearing on the application, the learned Civil Judge (Jr. Division), Bhadrak by his order impugned in the present writ petition dated 29.03.2008 allowed the said application observing and directing as follows:- “In view of the above narrated, I am of the view that for the just decision of the case, prayer made by the petitioner in respect of recounting and inspection recheck of ballot papers and counter foil only is worth considering and as such it is allowed. Put up on 17.04.2008 when both parties/counsel are to be present in the open court for recounting and inspection and recheck ballot papers and counter foils as prayed”. The petitioner being aggrieved by the said order has preferred the present writ application seeking quashing of the same. Reliance has been placed on various decisions of the Apex Court as well as this Court by the petitioner in support of his contention that the circumstances did not warrant an order to be passed by the Election Tribunal directing inspection and recounting of ballot papers as has been done in the impugned order. 7 2. Mr. R.K. Mohanty, learned counsel for the petitioner relying upon the decision in the case of Vadivelu v. Sundaram and others, A.I.R. 2000 S.C. 3230 submitted that the facts of the present case do not satisfy the prerequisites conditions where an order for recounting/inspection of ballot papers could have been passed. He vehemently submitted that as has been held by the Supreme Court in the aforesaid decision as well as in the case of Baldev Singh V. Shinderpal Singh and another, (2007) I SCC 341 to pass an order for inspection/recounting of ballot papers, the Court must be satisfied that a prima facie case has been established, the material facts and full particulars have been pleaded stating the irregularities for counting of votes. He further submitted that the Supreme Court held in the said case that a roving and fishing inquiry should not be directed by way of an order to recount the votes and in the process, the secrecy of the ballot papers should be guarded. A Division Bench of this Court in Writ Appeal No.67 of 2008 (Narayan Chandra Nayak Vrs. Harish Chandra Jena and two others) by judgment dated 04.11.2008 taking note of a number of decisions of the Apex Court as well as this Court, while dealing with a similar question held that the Court has to strike a balance so that the period of election is preserved and remains unpolluted in order to achieve the goal of democracy but 8 at the same time the secrecy of the ballots remains guarded. This Court further held that recounting can be directed in exceptional circumstances where the Court comes to the conclusion that the petitioner is not seeking a roving and fishing inquiry, he has pleaded the material facts and adduced evidence in support of his case and the returned candidate has failed to rebut the same. 3. Law on this question has been well settled and it has been laid down that unless particulars with regard to illegality in counting of ballot papers, rejecting the ballots papers as invalid etc. have been pleaded in detail and evidence has been led in support of such pleading making out a prima facie case in order, for recounting/inspection of ballot papers cannot be passed. In the case of Harikrishna Lal Vs. Babu Lal Marandi, (2003)8 SCC 613, the Apex Court held that the success of a winning candidate is not to be lightly interfered with and the burden of proof lies on the one, who challenges the election to raise necessary pleadings and adduce evidence to prove such averments as would enable the result of the election being set aside on any of the grounds available in the law. The secrecy of the ballot must be zealously guarded. In the case of R.Narayanan Vs. S. Semmalai, AIR 1980 SC 206, the Supreme Court held that the fact that the margin of votes by which the successful candidate was declared 9 elected was very narrow, though undoubtedly an important factor to be considered would not by itself, vitiate the counting of votes or justify recounting by the Court. In Vadivelu (supra), the Supreme Court while dealing with a case under the Representation of People Act, 1951, referring to several earlier decisions held as follows: “The result of the analysis of the above cases would show that this Court has consistently taken the view that recount of votes could be ordered very rarely and on specific allegation in the pleadings in the Election Petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of flections has been tarnished and it has materially affected the result of the lection whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties”. After holding as above, the Supreme Court, analyzing the pleadings in the election petition, came to a conclusion that the appellant therein has not set forth material facts or particulars required for recounting of votes and to justify his contention that there was irregularity or illegality in the counting, except making some general and bald allegations, no other details were found to be given in the pleadings. In the said case though an allegations 10 was made that electoral roll contained the names of dead persons that the first respondent took advantage of the same and that some persons had impersonated and cast votes in his favour, no details were given as to who committed such irregularities. The appellant therein also did not mention as to how many such votes were cast in favour of the first respondent and has also not alleged the nature of illegality or irregularity said to have been committed by the Counting Officer. It was also not specified as to what manner, there was improper acceptance of invalid votes and improper rejection of valid votes. The Supreme Court, therefore, concluded that the election petition is bereft of all details and the appellant, while examined as P.W.1 could not supplement anything by way of evidence. (Emphasis Supplied). Taking note of the ratio of the several Supreme Court judgments, this Court has also held in the case of Narayan Chandra Nayak (Supra) that it is the solemn duty of the appellant (election petitioner) to plead material facts. The case of illegally accepted or rejected ballot has to be pleaded giving the serial numbers and the source of information. Merely showing that petitioner’s agent had told him was not enough. The name of the agent, who had furnished such information was to be disclosed in the election petition itself, note book on the basis of which such details had been furnished must be produced. The above findings were arrived at following the 11 decisions in the case of Jitendra Bahadur Singh Vs. Krishna Behari, AIR 1970 SC 276, M. Chinnaswamy Vs. K.C. Palanisamy & Ors. AIR 2004 SC 541 and Chandrika Prasad Yadav Vs. State of Bihar & Ors., AIR 2004 SC 2036. As has been already stated in the present case, election petitioner pleaded the following facts in the election petition in support of his plea that there was irregularity in counting of the votes. “That during the process of counting the Presiding Officers of different booths illegally rejected 12 nos. of votes caste in favour of the petitioner on flimsy ground of major portions of the cross mark being in symbol ‘sun’ and also that there have been marking in favour of more than one candidates there has been marking on symbols like Sun, Plough and Umbrella in addition to the ‘fish’ symbol of the petitioner. It is humbly submitted that there has been only two candidates in the election for the post of Sarpanch of Odanga Gram Panchayat. For the whole State of Orissa there has been one set of ballot papers bearing six symbols as per the Orissa Gram Panchayat Election Rules. Names of the candidates are not printed on the ballot papers. The symbols of sun, umbrella, plough and ladder have not been allotted to the any candidates in the election for the office of Sarpanch of Odanga Gram Panchayat. These votes have been wrongly rejected though they should have been counted in favour of the petitioner. That in three ballot papers, one each in booth nos.4,5 and 7 have been illegally accepted in favour of the O.P. though the major portion of the arrow cross mark is on the symbol ‘fish’. These three ballot papers should have been counted in favour of the petitioner but has wrongly been counted in favour of the O.P. That by such illegalities the O.P. has been declared to have secured 1523 votes and the petitioner have been shown to have secured 1509 votes. In the event of correct and proper inspection of the ballot papers it would be seen that the petitioners has secured 1524 valid votes and the O.P. has secured 1520 votes. 12 That 10 persons of Odanga Gram Panchayat have been enrolled as voters in both Ward Nos.11 and 13. Similarly 7 persons have been enrolled in Ward no.7 of Odanga Gram Panchayat though they are voters and inhabitants of adjacent Ganijanga Gram Panchayat. Coming to know about this, the agents of this petitioner as well as of other candidates contesting for different offices filed a written objection to the Presiding Officer of Booth no.11 of Odanga Gram Panchayat. Praying him not to allow these voters to cast their votes in Booth no.11 as they have already exercised their franchise in booth no.13 of Odanga G.P. and in Ganijanga Gram Panchayat. A copy of the said application is being filed along with this petition. It is humbly submitted that the Presiding Officer of booth no.11 did not take any step against those voters as a result of which 10 persons have cast their votes in booth no.11 though they have already cast their votes in booth no.13 of Odanga Gram Panchayat. All of them have cast their votes in favour of the Opposite Party in both the booths. That after the closure of polling the petitioner further came to know that 9 persons of Odanga Gram Panchayat have cast their votes in favour of the O.P. both in booth nos.8 and 14. Similarly, 5 persons have cast their votes in booth no.7 of Odanga Gram Panchayat though they have also cast their votes in booth no.1 of Chhayalsingh Gram Panchayat. It is humbly submitted that all these persons are supporters of the O.P. and have been canvassing votes for the O.P. All of them have cast their votes in favour of the opposite party”. 4. The pleadings, as quoted above, do not specify as to who are the nine persons of Odang Gram Panchayat, who have cast their votes in favour of the opposite party in the court below (writ petitioner) both in booth nos.8 and 14 and similarly the other five persons, who have cast their votes in booth no.7 of Odang Gram Panchayat have also cast their votes in booth no.1 of Chhyalsingh Gram Panchayat. The source of such knowledge of 13 the election petitioner has also not been disclosed in the pleadings. It has not been specifically stated as to which are the 12 votes which were illegally rejected though they were cast in favour of the election-petitioner. No particulars have been mentioned with regard to the alleged three ballot papers, one each in booth nos.4,5 and 7 which have been illegally accepted in favour of the opposite party in the court below (writ petitioner). In the petition filed for calling for the counter foils of the ballots papers issued to the voters of the booth nos.7,8,11,13,14 of Odang Gram Panchayat and the ballot papers counted in favour of the writ petitioner and the rejected ballot papers for inspection, scrutiny and recounting. Additional allegations have been made which are not there in the election petition. 5. Considering the pleadings of the election petitioner and in the touch stone of the ratio of the decisions of the Apex Court referred above as well as a Division Bench decision of this Court in W.A. No.67 of 2008 and also applying the ratio of the decision in the case of Gajanan Krishnaji Bapat Vs. Dattaji Gaghobaji Meeha, AIR 1995 SC 284, it would be seen that the Election Tribunal has considered facts which are beyond the pleadings of the parties and direction issued in the impugned order that for the just decision of the case there should be recounting of inspection/rechecking of ballot papers and counter 14 foils as prayed for is contrary to the ratio of the decisions in the case of M.Chinnasamy (Supra); Chandrika Prasad Yadav (Supra) as well as the decision in the case of Baldev Singh (Supra). The learned Election Tribunal also without any basis has concluded that the allegation with regard to irregularity in counting of ballots papers has been vividly mentioned in the election petition. In view of such position, the impugned order dated 29.03.2008 passed in Election Misc. Case No.56 of 2007 under Annexure-1 cannot be sustained and the same is accordingly quashed. The Election Tribunal is directed to hear arguments of the parties and dispose of the election petition on the materials available on record within a period of one month from the date of production of the certified copy of this order before it by any of the parties. 6. The writ petition is accordingly allowed but in the circumstances without cost. ……………………. M. M. Das, J. Orissa High Court, Cuttack. February ,2009/Himansu. 15 16 17