IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15194 of 2008 KUMAR SATYANAND SINGH, SON OF KEDAR SINGH, RESIDENT OF VILLAGE- BELWAR, P.S.- KOTHI, DISTRICT- GAYA :----- PETITIONER. Versus 1. THE STATE ELECTION COMMISSION, SONE BHAWAN, 3RD FLOOR, BIRCHAND PATEL MARG, PATNA. 2. THE DISTRICT ELECTION OFFICER CUM DISTRICT MAGISTRATE, GAYA. 3. THE DISTRICT PANCHAYAT OFFICER, PANCHAYATI RAJ, GAYA. 4. THE RETURNING OFFICER, C.O. IMAMGANJ, GAYA. 5. THE S.D.M., SHERGHATI, GAYA. 6. ABU BAQUER KHAN ALIAS LAKHI KHAN, SON OF LATE HASNATH KHAN, RESIDENT OF VILLAGE- LAWABAR, P.O.- KOTHI, DISTT- GAYA. 7. ALI AHMAD, SON OF LATE TAUHID MIAN, RESIDENT OF VILLAGE- BASURA, P.S.- KOTHI, DISTT- GAYA. 8. AWADH PRASAD @ AWADH KRISHNA, SON OF BISHUN SAO, RESIDENT OF VILLAGE- SOBRI, P.S.- KOTHI, DISTT- GAYA. 9. ASHOK KUMAR MEHTA @ ASHOK KUMAR, SON OF LATE GAURI SHANKAR MAHTO, RESIDENT OF VILLAGE- BAGHAUTA, P.S.- KOTHI, DISTT- GAYA. 10. ADIL KHAN, SON OF LATE NAUSE KHAN, RESIDENT OF VILLAGE- BAHA, P.S.- KOTHI, DISTT- GAYA. 11. AJMERI KHAN @ ADIL RASHID KHAN, SON OF LATE KALIMU REHMAN, KHAN, RESIDENT OF VILLAGE- BASURA, P.S.- KOTHI, DISTT- GAYA. 12. DINESH SINGH, SON OF LATE SADHU SINGH, RESIDENT OF VILLAGE- BARA (KALA), P.S.- KOTHI, DISTT- GAYA. 13. PRAMOD KUMAR SINGH, SON OF LATE SHEO RAKSHA SINGH, RESIDENT OF VILLAGE- BARA (KALA), P.S.- KOTHI, DISTT- GAYA. 14. RAJENDRA YADAV, SON OF KEDAR YADAV, RESIDENT OF VILLAGE- SOBRI, P.S.- KOTHI, DISTT- GAYA. 15. SAFDAR ALI, SON OF HAKIM MIAN, RESIDENT OF VILLAGE- BASURA, P.S.- KOTHI, DISTT- GAYA. 16. SARIFUKHAN, SON OF LATE AMIRUDDIN KHAN, RESIDENT OF VILLAGE- BAHA, P.S.- KOTHI, DISTT- GAYA. 17. SURENDRA PRASAD, SON OF SURYANATH MAHTO, RESIDENT OF VILLAGE- BAGHAUTA, P.S.- KOTHI, DISTT- GAYA :---- RESPONDENTS. ----------- For the petitioner : Mr. Rajendra Prasad Singh, Senior Advocate. Mr. Ramakant Singh, Advocate. For the State Election Commission : Mr. R.S.Pradhan, Senior Advocate. Mr. Sanjeev Nikesh, Advocate. For Respondent No. 6 : M/S. Farooque Moazzam & R.N.Verma, Advocates. ======= 12. 04.01.2011. Heard learned counsel for the petitioner, State Election Commission and the Returned Candidate i.e. Respondent No. 6. 2. By filing this writ petition petitioner is assailing the judgment dated 27.08.2008 passed by Civil Judge, Junior Division, Sherghati in Election Petition No. 02 of 2006/01 of - 2 - 2008, Annexure-1, whereby and whereunder the said election petition has been dismissed after contest. It is submitted on behalf of the election-petitioner that during hearing of the election petition amongst others Issue No. V was formulated for consideration which is quoted hereinbelow. “(V). Whether any manipulation has been done in prapatra (form) 20 & 21?” 3. Said issue was decided against the election- petitioner as the Tribunal did not rely on the report of the Sub-Divisional Officer, Sherghati, Exhibit-5/b. From perusal of Paragraph 11 of the judgment it is quite evident that the Election Tribunal has given sound reasoning for not relying on the report of the Sub-Divisional Officer, Sherghati. While assailing the finding of the Election Tribunal recorded in respect of Issue No. V learned counsel for the petitioner, however, submitted that the tribunal below should have considered and examined Form No. 20 and 21 maintained in connection with Booth No. 165 so as to consider for itself whether votes polled in favour of the election-petitioner on booth no. 165 was manipulated from 27 to 7. It is also submitted that while examining the contents of Form No. 20 and 21 aforesaid the tribunal below if so desired may have called for a report from handwriting expert so as to enable it to verify the submission of the petitioner that there is manipulation in the two forms maintained in connection with booth no. 165. 4. Counsel for the Returned Candidate has opposed - 3 - the aforesaid submission. He states that the pleadings made in the election petition was itself deficient and no allegation with regard to any manipulation in Form No. 20 and 21 maintained in respect of Booth No. 165 was ever made in the election petition. In support of the aforesaid submission learned counsel for the Returned Candidate has relied on the judgment of the Hon’ble Supreme Court in the case of Pradip Buragohain Vs. Pranati Phukan, reported in 2010 (3) PLJR (SC) 177, paragraphs 10 and 12 and submitted that in the trial of election petition it is unsafe to rely on the oral testimony of the witnesses unless oral testimony is buttressed by unimpeachable documentary evidence. 5. Aforesaid submission has been noted only for the purpose of being rejected as if there was no pleading with regard to manipulation in Form No. 20 and 21 maintained in connection with a boot or boots where was the occasion for the trial court to have framed Issue No. V quoted above. Having framed the said issue the trial court examined the same with respect to the report of the S.D.O., Sherghati, Exhibit- 5/b but for the reasons indicated in Paragraph-11 rejected the report. Having rejected the report the trial court should have examined Form No. 20 and 21 maintained in connection with Booth No. 165 either himself or with the assistance of a Handwriting Expert notwithstanding that Court is expert of all experts. For the failure of the trial court to examine the allegation of manipulation in respect to Form No. 20 and 21 maintained in connection with Booth No. 165, I - 4 - set aside the finding recorded by the trial court in connection with Issue No. V and remit back the matter to the trial court to re-examine the aspect of manipulation of Form No. 20 and 21 maintained with respect to Booth No. 165 in accordance with law. The trial court should record its finding with respect to Issue No. V and pass final order in the light thereof as early as possible, in any case within a period of two months from the date of receipt or production of a copy of this order before the trial court, may be by the parties. Before parting with this order, I may observe that until final orders are passed by the tribunal below or fresh election is held the Returned Candidate shall function as Mukhiya of the Gram Panchayat concerned. 6. The writ application is, accordingly, disposed of. P.K.P. (V.N.Sinha,J.)