C.P. Sameera v. Savithri D.K. and Keerthana P.V. and District Collector, Kannur

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 ``` ## `OP(C) NO. 2264 OF 2022` ``` IN IA 13&14/2022 IN OP(ELE) NO.2/2021 OF MUNSIFF COURT, ``` ## `THALASSERY` ## `PETITIONER/1ST RESPONDENT:` ``` C.P. SAMEERA AGED 47 YEARS D/O AZEEZ, 'SABNA MANZIL', EDAKKAD P.O., KADAMBOOR AMSOM AND DESOM, KANNUR DISTRICT, PIN - 670663 ``` ``` BY ADVS.ASHWIN SATHYANATH VINOD RAVINDRANATH MEENA.A. K.C.KIRAN M.R.MINI M.DEVESH ANISH ANTONY ANATHAZHATH THAREEQ ANVER K. VIDYA K. ``` ## `RESPONDENTS/PETITIONER AND RESPONDENTS 2 AND 3:` ``` 1SAVITHRI D.K AGED 54 YEARS W/O BALAKRISHNAN, RESIDING AT THAIVECHAVALAPPIL HOUSE, P.O.EDAKKAD, KADAMBOOR AMSOM DESOM, KANNUR DISTRICT, PIN - 670663 2KEERTHANA P.V. AGED 25 YEARS W/O RIJU M.K., YEARS, MAVILAKUNNATH HOUSE, KADAMBOOR AMSOM DESOM, EDAKKAD P.O., KANNUR DISTRICT, PIN - 670663 3DISTRICT COLLECTOR, KANNUR COLLECTORATE ROAD, THAVAKKARA, KANNUR, PIN - 670002 ``` O.P.(C) No.2264/2022 : 2 : ``` BY ADVS.V.S.CHANDRASEKHARAN LEKSHMI SWAMINATHAN(K/265/2007) M.V.DAS(K/106/1977) S.JAYAKUMAR(K/187/2015) SHAHIM BIN AZIZ(K/557/2016) N.S.SOUMYA MOL(K/1244/2012) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(C) No.2264/2022 : 3 : Dated this the 20[th] day of March, 2023 ## **J U D G M E N T** Feeling aggrieved by Exts P7 and P8 orders passed in I.A.Nos.13 & 14/2022 in O.P.(Ele) No.2/2021 (in short, ‘election petition’) by the Court of the Munsiff, Thalassery, the first respondent in the election petition has filed the original petition. The respondents are the petitioner and the respondents 2 and 3 in the election petition. 2. The antecedent facts leading to the impugned orders are: - (i) The first respondent has filed the election petition, challenging the election of the petitioner from Ward No:9 of Edakkad West Constituency of Kadampur Grama Panchayat, held on 14.10.2020. - (ii) The petitioner was declared as the returned candidate after having secured 448 votes out of the total 962 votes. The first respondent O.P.(C) No.2264/2022 : 4 : secured 445 and the second respondent secured 68 votes. - (iii) The principal ground of challenge is that six voters had cast their votes in two constituencies. Hence, their votes are void. Consequently, the first respondent is to be declared as the returned candidate. - (iv) The petitioner has resisted the election petition through Ext P2 written statement. - (v) The trial in the case is completed. - (vi) The first respondent filed I.A.Nos.13 & 14/2022 (Exts P3 & P4), to cause the production of the Electronic Voting Machine(EVM) and other documents, and to appoint a technician to give evidence with regard to the EVM. The applications were opposed by the petitioner through Exts P5 & P6 counter statements. - (vii)The court below, by the impugned Exts P7 & P8 orders, has allowed Exts P3 and P4 applications. O.P.(C) No.2264/2022 : 5 : (viii) Exts P7 & P8 orders are patently wrong and erroneous. Hence, the original petition. 3. Heard; Sri. S. Krishnan Unni, the learned Senior Counsel appearing for the petitioner, Sri. V. S. Chandrasekharan, the learned counsel appearing for the first respondent and Sri. S. Unnikrishnan, the learned Government Pleader appearing for the third respondent 4. The first respondent has filed the election petition to declare the election of the petitioner from Ward No.9 of Edakkad West Constituency of Kadampur Grama Panchayat as void, on the ground that the six voters of the said constituency had cast their votes in more than one constituency. 5. The petitioner has resisted the election petition by filing Ext P2 written statement. O.P.(C) No.2264/2022 : 6 : 6. The parties went to trial. Witnesses were examined and documents were marked. 7. Then, the first respondent filed Ext P3 application to direct the election officer to produce the EVM, VIVIPAT, memory chip and the controlling unit used in the election. She also filed Ext P4 application to provide a technician of the State Election Commission to give evidence on the EVM, VIVIPAT, memory chip and controlling unit. The applications were opposed by the petitioner. 8. The court below, after adverting to the rival contentions, has held that the first respondent has established a prima facie case regarding the possibility of double voting and consequently allowed the applications. 9. Now, whether prima facie satisfaction is sufficient to arrive at a conclusion regarding double O.P.(C) No.2264/2022 : 7 : voting and directing the opening of the EVM, is the question posed. 10. The above question is no longer res integra, in view of the empathetic declaration of law by a three Judge Bench of the Hon’ble Supreme Court in **Neelalohithadasan Nadar v. George Mascrene** [1994 KHC 186], wherein it is succinctly held as follows: “14…...If a name has been registered twice enabling a person to take the advantage of voting in two different polling stations. S.62 mandates that if he polls both these votes then both votes are void. A void vote cast is a vote void ab initio. In the nature of things the void taint in the election would have to be traced to the election papers for without that bare oral evidence would be of no use, and at best would be word against word, making application of S.62(4) welling impossible. If the election petitioner on some information, material or otherwise is able to entertain the belief that a particular voter, double registered, is known to have voted twice, he can certainly plead to that fact on his own entertained belief and need not ordinarily resort to giving details of the sources of his information or knowledge or the entertainment of his belief because registration of double vote is by itself the starting point; the exercise of both votes being the second. The election petitioner had specifically mentioned and in clear-cut terms that 19 persons had double voted. The question O.P.(C) No.2264/2022 : 8 : was not resoluble merely on oral evidence, whether they had or had not, except to put those persons into the witness box, hear their version and confront them with the election papers. The sphere of enquiry at that stage is to the voting and not for discovering the name of the person to whom the vote was cast. That inevitably has to be found out after double voting or impersonated voting has been found out leading to the new step to trace them and nullify them. On the pleading of the parties as such, on both sides, a case for inspection at the stage when it was done had been made out. We thus find no error committed in the approach of the High Court.” [Emphasis supplied] ## 11. Relying on the above exposition of law, this Court in **Noushad M.M. v. Thambilali Meethal Rajan & Others** [2014 KHC 470] held as follows: “14…...It is evident from the decisions referred to above that the ballot papers cannot be inspected for the purpose of finding out whether the case set out by the election petitioner is true or not. The ballot papers can be inspected only for the purpose of recounting or for excluding the votes cast by voters who had voted twice and not for the purpose of entering a finding as regards the question whether any particular voter had voted twice. Such a finding has to be entered by the Court having regard to the pleadings and the evidence, oral and documentary before it like the marked copy of the electoral rolls, the counterfoils of ballot papers and other records relating to the election. After entering a finding on that issue, if the finding were to be in favour of the petitioner in the election petition, the Court trying the O.P.(C) No.2264/2022 : 9 : election petition will certainly be justified in ordering an inspection of the ballot papers in the presence of the learned counsel on both sides by the Chief Ministerial Officer and such other staff as the Court may choose to appoint. In the instant case, before entering a finding that all or any of the eight persons named in the election petition had cast their votes twice, the Court trying the election petition ordered inspection of the ballot papers. In the light of the principles laid down by the Apex Court and this Court in the decisions referred to above, such a course of action cannot be sustained. I accordingly hold that the impugned orders are liable to be set aside.” [Emphasis supplied] 12. On an analysis of the principles laid down in the afore-cited decisions, it was imperative for the court below to have entered a specific finding based on the pleadings and materials on record that the alleged voters had cast their votes twice. The prima facie satisfaction of the court below is insufficient to order the opening of the EVM, VIVIPAT, memory chip and the control unit. 13. In the above conspectus, I am definitely of the view that Exts P7 and P8 orders passed by the court below cannot be enforced at present, unless the court O.P.(C) No.2264/2022 : 10 : arrives at a specific contention as to the persons who have cast their votes twice and whether those void votes would materially affect the election. 14. In the absence of the above finding, I hold that Exts P7 and P8 orders are erroneous and premature and warrants interdiction by this Court under Article 227 of the Constitution of India, otherwise, it will cause irreparable injury and prejudice to the petitioner. Hence, I am inclined to suspend Exts P7 and P8 orders, which shall take effect only on the court below answering in the affirmative that there is double voting. Resultantly, I allow the original petition in the following manner. - (i) Exts.P7 and P8 orders shall stand suspended. - (ii) The court of the Munsiff, Thalassery, is directed to proceed with O.P.(Ele)No.2/2021 and render a finding on the issue whether there has been O.P.(C) No.2264/2022 : 11 : double voting and whether it would materially affect the election. - (iii)The implementation of Exts P7 and P8 orders would be subject to the result of the issue of double voting. - (iv)The court below is directed to consider and dispose of the election petition in accordance with law and as expeditiously as possible. Sd/- ## **C.S.DIAS,JUDGE** DST/20.03.2023 //True copy/ P.A.To Judge O.P.(C) No.2264/2022 : 12 : ## `APPENDIX` ``` PETITIONER EXHIBITS: ``` - `EXHIBIT P1 TRUE COPY OF THE O.P. (ELECTION) 2/2021 DATED 13.01.2021 ON THE FILE OF THE COURT OF THE MUNSIFF OF THALASSERY` - `EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 05.04.2021 FILED BY THE PETITIONER IN O.P. (ELECTION) 2/2021 DATED 13.01.2021 ON THE FILE OF THE COURT OF THE MUNSIFF OF THALASSERY` - `EXHIBIT P3 TRUE COPY OF I.A. 13/2022 IN O.P. (ELE.) NO.2/2021 ON THE FILE OF THE COURT OF THE MUNSIFF OF THALASSERY, DATED 29.8.2022` - `EXHIBIT P4 TRUE COPY OF I.A. 14/2022 IN O.P. (ELE.) NO.2/2021 ON THE FILE OF THE COURT OF THE MUNSIFF OF THALASSERY, DATED 29.8.2022` - `EXHIBIT P5 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN I.A. 13/2022 IN O.P. (ELE.) NO.2/2021 ON THE FILE OF THE MUNSIFF COURT, THALASSERY, DATED NIL` ``` EXHIBIT P6TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN I.A. 14/2022 IN O.P. (ELE.) NO.2/2021 ON THE FILE OF THE MUNSIFF COURT, THALASSERY, DATED NIL ``` O.P.(C) No.2264/2022 : 13 : ``` EXHIBIT P7CERTIFIED COPY OF THE ORDER DATED 24.09.2022 IN I.A. 13/2022 IN O.P. ELECTION 2/2021 ON THE FILE OF THE MUNSIFF COURT, THALASSERY EXHIBIT P8CERTIFIED COPY OF THE ORDER DATED 24.09.2022 IN I.A. 14/2022 IN O.P. ELECTION 2/2021 ON THE FILE OF THE MUNSIFF COURT, THALASSERY ``` ``` RESPONDENTS’ EXHIBITS: NIL ```