IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4383 of 2010 1. Shesh Nath Pathak S/O Late Sheo Dutt Pathak R/O Vill.- Neazipur (Dadababa Ke Dera), P.S. Simri, Distt.- Buxar Versus 1. The Election Commission Of India Through Chief Election Commissioner Of India, New Delhi 2. The Chief Electoral Officer Bihar, Patna 3. The State Election Officer, Bihar 4. The District Magistrate Cum Returning Officer 33 Buxar Parliamentary Constituency, Buxar Bihar 5. Public Information Officer Cum Joint Election Officer, Bihar, 07 Mangles Road, Patna-15. ------ For the petitioner : Mr. Ram Suresh Roy, Senior Advocate with Mr. Mithilesh Kumar Sharma For Election Commission : Mr. J.P.Karn, Senior Advocate with Mr. Siddhartha Prasad ---------------------------------- 3. 19.8.2011. Heard learned counsel appearing on behalf of the parties. The petitioner is aggrieved by the orders passed by the statutory authorities under the provisions of the Right to Information Act, 2005 (hereinafter referred to as ‘the Act’), whereby the application filed by the petitioner with a prayer to provide a copy of the print out of votes poled and maintained in Electronic Voting Machine (hereinafter referred to as ‘EVM’) for the entire 33 Buxar Parliamentary Constituency during the general election of 2009, has been rejected. It is not in dispute rather admitted that 2 the petitioner was not a candidate for the election in question but has raised an issue to satisfy himself, apprehending manipulation in the system of electronic voting inter alia on grounds that the system lacked transparency. Mr. Ram Suresh Roy, learned Senior Counsel appearing on behalf of the petitioner, submits that the petitioner had earlier approached this court by filing C.W.J.C.No.8998 of 2009 which was disposed of by order dated 31.7.2009 placed at Annexure-4 of the writ petition, giving him liberty to exercise his right under the Right to Information Act, 2005. He submits that the writ petition was dismissed with an observation that the petitioner has to exercise his right under the Right to Information Act, before any interference is required or a direction can be issued in this regard. It is contended that following the order, the petitioner filed an appropriate application before the Public Information Officer cum Joint Election Officer, Bihar seeking the print out of the votes maintained in the E.V.M. for the 33 Buxar Parliamentary Constituency and which was refused by the Public Information Officer. The petitioner challenged the refusal as communicated 3 vide order dated 5.10.2009, by filing a second writ petition giving rise to C.W.J.C.No.14836 of 2009 and which was disposed of by order dated 4.1.2010 requiring the petitioner to avail the remedy of appeal provided under the Act. The petitioner filed an appeal under the Act giving rise to Appeal Case No.17 of 2009-10. The Chief Election Officer cum Appellate Authority under the Act, vide order passed on 10.2.2010, disposed of the appeal filed by the petitioner in the light of the judgment and order of the Delhi High Court rendered in a similar matter arising from W.P.No.4715 of 2008 (Election Commission Vs. Central Information Commission). The order dated 10.2.2010 is placed at Annexure-7 to the writ petition. It is an admitted position that no second appeal was preferred by the petitioner before the State Information Commission, Bihar, Patna and he has rather chosen to assail the action through the present writ petition. The only issue which falls for consideration is whether the petitioner being a citizen of this country seeking information as regarding the voting in the 33 Parliamentary Constituency of Buxar, has right to obtain the 4 print out maintained in the EVM. The statutory authority, under the Act, has refused the information sought by the petitioner, inter alia, on grounds that the same did not constitute ‘information’ in terms of the provisions underlying Section 2 (f) of the Act. The issue raised in the present writ petition was also the subject matter of the writ proceedings before the Delhi High Court and has been very extensively deliberated upon, in the light of the Statutory provision governing the Right to Information Act, 2005, the Representation of People Act, 1951, and the Conduct of Election Rules, 1961. The Delhi High Court has very elaborately considered the relevant enactments including that present in Rule 93(1A) of the Conduct of Election Rules, 1961, which inter provides that the control units sealed under the provisions of Rule 57C of the rules and kept in the custody of the District Election Officer, can neither be inspected nor produced before any person or authority except under the orders of the competent court, in the back drop of the definition of ‘information’ provided under section 2(f) of the Act. It has been held that the statutory 5 authority under the Act, were themselves statutorily denied access to the said ‘information’ until and unless there be an appropriate direction from a competent court being the Election Tribunal. It has thus been held that as the statutory authority under the Right to Information Act themselves do not have access to the information relating to the voting details of the parliamentary constituency as maintained in the EVM, unless there is an order of competent court, it did not constitute any information under the Act. It is in this background that the details so sought by the petitioner was refused by the Statutory authorities under the Act by the orders impugned and the appeal of the petitioner was disposed of. I am in complete conformity with the views expressed by the Delhi High Court as followed by statutory authority under the Act. Although section 22 of the Act gives the enactment an over riding effect over any other law but the focal point is whether the information being sought, at all constitutes an ‘information’ under section 2(f) of the Act. Admittedly, under the provision of the Election Rules, 1961 and the 6 provision of the Representation of Peoples’ Act, 1951 an election officer has no access to the information relatable to voting details maintained in the EVM, unless there is a direction by a competent court, being the Election Tribunal and none else. In absence of any such direction the Election Officer is not in a position to provide the same on an application made by an applicant under the Right to Information Act, 2005. That being the legal position, no infirmity is found in the order rejecting the request of the petitioner by the Statutory Authority under the Act. The writ petition is dismissed. ahk (Jyoti Saran, J.)