IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 WP(C).No. 25622 of 2009(O) -------------------------- OP(ELECTION) NO.45/2005 of MUNSIFF COURT, TIRUR .................... PETITIONER(S): --------------- KUNNATHADATHIL KUTTI HASSAN, S/O.AYAMMU, PUTHOOR, CHERUKUNNU, THIROORANGADI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR SMT.M.T.SHEEBA SRI.P.A.RAJESH SRI.K.RAKESH SMT.VRINDA PAUL RESPONDENT(S): --------------- M.ABDUL KAREEM @ KUNHIPPA, S/O.MUHAMMEDKUTTY, PUTHOOR, CHERUKUNNU, THIROORANGADI, MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.25622 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 10th September, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To issue any writ orders or directions to call for the entire records leading upto Exhibit P5 and quash the same. 2. To declare that the order passed by the learned Munsiff, Tirur in I.A.No.238/07 in O.P.(Election)No.45/2005 dated 19.8.2009 is against the settled principles of law, and the same is inoperative. 2. Petitioner is the respondent in a pending Election Petition, O.P.(Election)No.45 of 2005 on the file of the Munsiff Court, Tirur. He was the returned candidate from ward No.XI of Othukungal Grama Panchayat in the last general election. His election from the ward by a majority of three votes was challenged by the respondent, who was the other contesting candidate from the ward. Election of the petitioner as the returned candidate was impeached on various grounds in the election petition, of which reference to all of them is found not warranted. Suffice to state that the grounds canvassed were to the effect that there was double voting by three voters, that two mentally incapacitated persons had cast votes as assisted by companions, that one postal vote was not considered for counting, W.P.C.No.25622/09 - 2 - that some of the votes treated as void were actually valid votes tendered in favour of the petitioner in the election petition etc. The respondent, to substantiate his grounds raised in the election petition, had moved applications for summoning the mentally unfit persons whose votes are stated to have been cast with the assistance of companions as witnesses and also for opening of the election records and examine the counterfoils and the ballot papers etc. Previously, the learned Munsiff dismissed the applications moved by the respondent, against which two Writ Petitions were filed before this court. Both the Writ Petitions were disposed by common judgment dated 18.3.2009 setting aside the order of the learned Munsiff and directing issuance of summons to examine the witnesses cited and also to consider whether election records are to be opened subject to the satisfaction of the court to proceed with steps for a fair and proper adjudication of the dispute in the case. Pursuant thereto, the court below, after hearing both sides, passed P5 order by which it was ordered to inspect the election documents including the ballot papers in the presence of the parties and counsel, fixing the date and time thereof. Propriety and correctness of that order is challenged in the Writ Petition invoking the supervisory jurisdiction vested with this W.P.C.No.25622/09 - 3 - court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and the circumstances presented with reference to P5 order impugned in the Writ Petition, I find no notice to the respondent is necessary and it is dispensed with. Learned counsel for the petitioner assailed P5 order of the court below relying on a number of decisions of the apex court to contend that the secrecy of election is not a matter to be trifled with and the election records are not liable to be opened up unless and until the petitioner who has impeached the election of the returned candidate substantiated his case for opening of such records with convincing and cogent grounds. The respondent has failed to lead such convincing evidence or present any material circumstance justifying the opening of the election records, and in fact, according to the counsel, the pleadings raised in the election petition would also show that he had no definite case even as regards the serial number of the mentally incapacitated persons in the voters list whose casting of votes with the assistance of companions was set forth as a challenge to impeach the election. No further material after P4 judgment rendered by this court was let in by the respondent to W.P.C.No.25622/09 - 4 - substantiate a case for reopening of the election records, submits the counsel. After going through P5 order with reference to P4 judgment rendered by this court earlier and also other materials produced with the Writ Petition, I find no merit in the submissions made by the learned counsel. P5 order passed by the learned Munsiff disclose that after P4 judgment, pursuant to summons were issued to two mentally incapacitated persons, but they did not appear, and, then, an Advocate Commissioner was deputed to examine them. He has reported that both the persons suffer from severe mental illness incapable of giving rational answers. This court in P4 judgment has also negatived the argument canvassed that the votes of mentally incapacitated persons can be cast with the assistance of a companion. Rule 36 of the Kerala Panchayat Raj (Conduct of Election) Rules does not come to rescue to validate such votes cast by a mentally incapacitated person is the view expressed by this court in P4 judgment. So much so, where the Commissioner has reported that the two mentally incapacitated persons suffer from severe mental illness incapable of giving rational answers, if any of their votes had been cast with the assistance of companions, necessarily and inevitably its validity has to be verified and examined. If that be so, W.P.C.No.25622/09 - 5 - opening of the election records is a must and in the given facts of the case, it cannot be stated that the respondent, the petitioner in the election petition, has not made out a case for opening of the election records. I do not find any merit in the challenge raised by the petitioner, the returned candidate, impeaching the correctness of P5 order passed by the learned Munsiff to open the election records, which is found to be absolutely essential for a proper and fair disposal of the election petition. Writ Petition lacks merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE