IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 1429 of 2010 1. GAYATRI DEVI W/O SRI BIRENDRA PRASAD R/O VILL MARAHI PAR, P.O.VIJAYPURA,P.S.DHANARUA, DISTT-PATNA Versus 1. THE STATE ELECTION COMMISSION , BIHAR THROUGH THE STATE ELECTION COMMISSIONER SONE BHAWAN, BIRCHAND PATEL ,PATNA, PATNA 2. THE STATE ELECTION COMMISSIONER, THE STATE ELECTION COMMISSION SONE BHAWAN, BIRCHAND PATEL PATH, PATNA 3. THE SECRETARY, THE STATE ELECTION COMMISSION SONE BHAWAN,BIRCHAND PATEL PATH,PATNA 4. THE DISTRICT MAGISTRATE-CUM-DISTRICT ELECTION OFFICER(PANCHAYAT) PATNA, DISTT-PATNA 5. THE BLOCK DEVELOPMENT OFFICER-CUM-RETURNING OFFICER(PANCHAYAT) DHANAURA, BLOCK,DISTT-PATNA 6. THE JUNIOR ENGINEER -CUM-ASSISTANT RETURNING OFFICER(PANCHAYAT) DHANAURA BLOCK,DISTT-PATNA 7. ANIMA DEVI W/O SRI SHARWAN PASWAN R/O VILL BADIHA, P.O.VIJAYPURA, P.S.DHANAURA,DISTT-PATNA 8. DEWANTI DEVI W/O SRI ANIL SHARMA R/O VILL &P.O.VIJAYPURA, P.S.DHANARUA, DISTT-PATNA 9. PUNAM DEVI W/O SRI MANTU SHARMA R/O VILL BADIHA, P.O.VIJAYPURA, P.S.DHANAURA,DISTT-PATNA 10. RITA DEVI W/O SRI NAWAL PRASAD R/O VILL MAHMMADPUR, P.O.VIJAYPURA, P.S.DHANARUA, DISTT-PATNA 11. RITA DEVI W/O RAN VIJAY SINGH UJJAIN R/O VILL FUPURA, P.O.MANAKI PAR, P.S.DHANARUA, DISTT-PATNA 12. LALITA DEVI W/O BUMBUM SINGH R/O VILL FULPURA, P.O.MANAKI PAR, P.S.DHANARUA, DISTT-PATNA 13. SHANTI DEVI W/O SRI VIJAY PRASAD R/O VILL&P.O.NAWASO CHAK,P.S.DHANARUA, DISTT-PATNA 14. SACHI DEVI W/O SRI JAI KANT SINGH R/O VILL FULPURA, P.O.MANAKI PAR, P.S.DHANARUA, DISTT-PATNA 15. SUDHA DEVI W/O SRI VIDYA BHUSHAN SHARMA R/O VILL KAILI, P.O.NAWAI CHAK,P.S.DHANARUA,DISTT-PATNA 16. SUSHILA DEVI W/O SRI ABHAY PRASAD R/O VILL VIJAYPURA GARAN PAR, P.O.VIJAYPURA, P.S.DHANARUA, DISTT-PATNA 17. SANGITA DEVI W/O ARBIND PRASAD R/O VILL DOST MOHAMMADPUR, P.O.VIJAYPURA,P.S.DHANARUA,DISTT-PATNA 18. JIRWA DEVI W/O MANIK MANJHI R/O VILL KOILI, P.O. NALASI CHAK,P.S. DHANARUA,DISTT-PATNA 19. KUSUM DEVI W/O RAJ KISHORE SINGH R/O VILL FULPURA,P.O.MANKIPAR,P.S.DHANARUA, DISTT-PATNA WITH CWJC No 3247 of 2010 1. KUSHUM DEVI W/O RAJ KISHORE SINGH R/O VILL FULPURA,P.O.MANKIPAR,P.S.DHANARUA,DISTT-PATNA Versus 1. THE STATE ELECTION COMMISSION,BIHAR THROUGH THE STATE ELECTION COMMISSIONER SONE BHAWAN,BIRCHAND PATH,PATNA 2 2. THE STATE ELECTION COMMISSIONER ,THE STATE ELECTION COMMISSIONER SONE BHAWAN,BIRCHAND PATEL PATH,PATNA 3. THE SECRETARY ,THE STATE ELECTION COMMISSION SONE BHAWAN,BIRCHAND PATEL PATH,PATNA 4. THE DISTRICT MAGISTRATE CUM DISTRICT ELECTION OFFICER(PANCHAYAT) PATNA,DISTT-PATNA 5. THE BLOCK DEVELOPMENT OFFICER CUM RETURNING OFFICER(PANCHAYAT) DHANARUA BLOCK,DISTT-PATNA 6. THE JUNIOR ENGINEER CUM ASSISTANT RETURNING OFFICER(PANCHAYAT) DHANARUA BLOCK,DISTT-PATNA 7. ANIMA DEVI W/O SRI SHARWAN PASWAN R/O VILL BADIHA,P.O.VIJAYPURA,P.S.DHANARUA,DISTT-PATNA 8. DEWANTI DEVI W/O SRI ANIL SHARMA R/O VILL & P.O.VIJAYPURA,P.S.DHANARUA,DISTT-PATNA 9. PUNAM DEVI W/O SRI MANTU SHARMA R/O VILL BADIHA,P.O.VIJAYPURA,P.S.DHANARUA,DISTT-PATNA 10. RITA DEVI W/O SRI NAWAL PRASAD R/O VILL MAHMMADPUR,P.O.VIJAYPURA,P.S.DHANARUA,DISTT-PATNA 11. RITA DEVI W/O RAN VIJAY SINGH UJJAIN R/O VILL FULPURA,P.O.MANAKIPAR,P.S.DHANARUA,DISTT-PATNA 12. LALITA DEVI W/O BUMBAM SINGH R/O VILL FULPURA,P.O.MANKIPAR,P.S.DHANARUA,DISTT-PATNA 13. SHANTI DEVI W/O SRI VIJAY PRASAD R/O VILL & P.O.NAWASO CHAK,P.S.DHANARUA,DISTT-PATNA 14. SACHI DEVI W/O SRI JAI KANT SINGH R/O VILL FULPURA,P.O. MANKIPAR,P.S.DHANARUA,DISTT-PATNA 15. SUDHA DEVI W/O SRI VIDYA BHUSHAN SHARMA R/O VILL KAILI,P.O.NAWAI CHAK,P.S. DHANARUA,DISTT-PATNA 16. SUSHILA DEVI W/O SRI ABHAY PRASAD R/O VILL VIJAYPURA,GARANPAR,P.O.VIJAYPURA,P.S.DHANARUA,DISTT-PATNA 17. SANGITA DEVI W/O ARBIND PRASAD R/O VILL DOST MOHAMMADPUR, P.O.VIJAYPURA,P.S.DHANARUA,DISTT-PATNA 18. JIRWA DEVI W/O MANIK MANJHI R/O VILL KOILI,P.O.NALASI CHAK,P.S.DHANARUA,DISTT-PATNA 19. GAYATRI DEVI W/O SRI BIRENDRA PRATAP R/O VILL MARAHIPAR,P.O.VIJAYPURA,P.S.DHANARUA,DISTT-PATNA *** For the petitioner : M/s Y V Giri, Sr Advocate & S B K Mangalam, Anamika Dubey, Advocates For the S t a t e : M/s G A 10 and Lalan Kumar, Assistant Counsel to GP 22 For the Commission : Mr Sanjeev Nikesh, Advocate For the pvt respondent: M/s Ajay Kumar Thakur, Ravi Ranjan 1, Advocates *** 3 3 17.03.2010 These two writ petitions relate to a common election process and arise from the same judgment of learned Munsif, Masaurhi acting as the Election Tribunal in Election Case No 4 of the year, 2006 which judgment was delivered on 16th January, 2010. In the first writ petition, that is CWJC No 1429 of 2010, it is the winning candidate whose election has been set aside, has filed the writ application. Private respondent No 19 is the election petitioner who was defeated in the election but declared elected by the learned Munsif. In the second writ petition that is CWJC No 3247 of 2010, it is the election petitioner who is before the Court. Mr Y V Giri, learned Senior Counsel appears in support of the first writ petition and is opposed by Shri Ajay Kumar Thakur for the winning election petitionist and appears for the writ petitioner in the second writ petition. Counter affidavit has been filed and with consent of parties, the writ petition has been heard at length for disposal at this stage itself. So far as the second writ petition is concerned, there is no need for detailed consideration thereof in view of the result of the first writ petition. The second writ petition has been filed challenging one of the issues which has been decided against the said writ petitioner though substantially the judgment was in her favour. The substantive contest is in relation to the first writ petition. The writ petitioner of first writ petition was declared 4 elected as a member of Vijaypura Gram Panchayat, P S – Dhanarua, District – Patna. Her election was challenged by respondent No 19 by the said election petition. In the election petition, it was, inter alia, urged that there was irregularity in casting votes inasmuch as people who were in custody and people who were dead had been shown to have cast their votes. Trial proceeded. In course of trial, two applications by the election petitioner were filed on 01.05.2009 and 26.11.2009 for a direction to recount the votes. Arguments having been concluded, 16.01.2010 was fixed for final orders in the case. On this date, the learned Election Tribunal in the ordersheet records three separate orders which is followed by a lengthy handwritten judgment of over fifteen pages on the same day supposedly delivered in open Court and signed on the same day. The whole argument of the writ petitioner is based on these four orders. Basic submission is that the whole proceeding on this day was conducted contrary to the basic principles of natural justice and fair trial. Mr Thakur appearing for the private respondent, the election petitioner, submits to the contrary. Thus, it would be necessary to note in detail the sequence of events that unfolded on the fateful day of 16th January, 2010 in the Court of the said learned Munsif. As noticed earlier, 16.01.2010 was fixed for final orders. On 16.01.2010, the learned Munsif first records a detailed order which is passed on petitions filed on 01.05.2009 and 26.11.2009 which were making prayers for ordering recount. Court first 5 wonders where such applications were yet not disposed of how the Election Tribunal fixed 16.01.2010 for final orders. In the first order of the said date, Court notices that these applications with their counter affidavits are pending consideration and in order to establish the necessity of recounting, the election petitioner had filed various death certificates which had earlier been marked as exhibits. On this plea, he straightway orders that there is necessity for recounting and that would not violate secrecy of voting. Having passed this order recorded it by hand and signed, he then starts the second order of the same day immediately thereafter. That order now records that the ballot boxes and records, as produced by defendants No 1 to 6 who are official defendants, are opened. Counter folios and votes polled are tallied and marked as exhibits by the Court (presumably as official documents). Whether any party is present or not is not at all recorded? Whether there is objection or not is not recorded? This order then written and signed and closed with so many exhibits having been marked as exhibits then is the third order recorded on the same very day wherein it is recorded that judgment in fifteen handwritten pages is delivered in open Court and the same should be sent to various authorities. Order is signed and closed. The judgment indeed is a lengthy judgment considering various aspects running into fifteen pages of neatly, closely handwritten pages signed on the same day in Court, as alleged in the order. In detail, it discusses the evidences including all those things that were 6 marked as exhibits on the same day. What is of significance is that this third order in which delivery of judgment is recorded, it is for the first time recorded therein that parties have filed hazri. There is no recording that any argument whatsoever was heard. Thus seen, in substance what happened on 16.01.2010, was on pending applications for necessity of ordering recount, the learned Court passes a mechanical order. Having passed that order, without any argument, without noticing the presence of parties (writ petitioner alleges that all was done behind the back whereas the winning election petitioner urges to the contrary), the Court opens ballot boxes, suo motu identifies the despatched counter folios, identifies the ballot papers, marks them exhibits then considers the whole evidence of the case which had protracted for over three years and then delivers the judgment in course of one sitting on one day. Apart from these facts, I do not think there is necessity of noting any other fact as these facts in itself are enough to shock the conscience of the Court. These facts are enough to show that not only the manner in which the proceedings were conducted, the proceedings itself stood vitiated. The conduct of the Election Tribunal does not inspire one bit of confidence much less fairness, impartiality as is expected by an Election Tribunal. In that view of the matter, I am left with no option but to set aside the judgment dated 16.01.2010 as passed by the learned Munsif, Masaurhi in Election Case No 4 of the year, 2006 and 7 remand the matter for a fresh trial. As ballot boxes have already been opened and various counter folios and ballot papers marked as exhibits, the matter would start from this stage where parties would first be heard on objections to such an exercise and then would be heard as a part of conclusion of trial being the final hearing on all issues afresh and after hearing the parties then pass the final judgment. However, considering the manner in which the learned Munsif has conducted himself in this matter, I direct the District Judge, Patna to transfer the file for final disposal on remand by this Court to another Munsif. In the result, the judgment of the Election Case, as aforesaid, is set aside with direction to rehear the matter as above. The writ petitions stand disposed of. Considering the delay in the matter, the Court to which the disposal of this Election Case is assigned, would take steps for early disposal of the case. M.E.H./ (Navaniti Prasad Singh)