Ratan Kumar v Mallinga Maniyani and Dayananda

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN TUESDAY, THE 28TH DAY OF OCTOBER 2014/6TH KARTHIKA, 1936 OP(C).No. 2239 of 2013 (O) ------------------------------(OP 15/2010 of PRL.MUNSIFF COURT, KASARAGOD) PETITIONER: --------------- RATAN KUMAR, S/O.JANARDHANA NAYAK, PANDY IN ADOOR VILLAGE KASARAGODE TALUK, KASARAGODE - 671 121. BY ADVS.SRI.K.I.MAYANKUTTY MATHER SRI.P.RAHUL RESPONDENTS: ------------------ ## 1. MALLINGA MANIYANI, S/O.NARAYANA MANIYANI, AVANDOOR, ADOOR VILLAGE P.O.PANDY, KASARAGODE TALUK, KASARAGODE - 671 121. ## 2. DAYANANDA, S/O.THYAMPANNA NAIK, PANDY, ADOOR VILLAGE P.O.PANDY, KASARAGODE TALUK, KASARAGODE - 671 121. R1 BY ADV. SRI.I.V.PRAMOD THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2239 of 2013 (O) ------------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------- - EXT.P1: TRUE COPY OF O.P. NO.15/2010 FILED BEFORE THE MUNSIFF COURT, KASARGODE DATED 18/11/2010. - EXT.P2: TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER BEFORE THE PRINCIPAL MUNSIFF COURT, KASARAGODE IN O.P. 15/2010 DATED 12/1/2011. - EXT.P3: TRUE COPY OF THE DEPOSITION GIVEN BY PW1 IN O.P 15/2010 DATED 12/11/2012. - EXT.P4: TRUE COPY OF THE DEPOSITION GIVEN BY PW2 IN O.P 15/2010 DATED 26/11/2012. - EXT.P5: TRUE COPY OF THE DEPOSITION GIVEN BY PW3 IN O.P 15/2010 DATED 26/11/2012. - EXT.P6: TRUE COPY OF THE ORDER OF THE PINCIPAL MUNSIFF COURT, KASARAGODE IN O.P. 15/2010 DATED 25/6/13. RESPONDENT(S)' EXHIBITS: NIL. --------------------------------------- // True Copy // P.A. To Judge. smp ## **P.BHAVADASAN, J.** **--------------------------------------------------Original Petition (Civil) No.2239 OF 2013 --------------------------------------------------Dated this the 28[th] day of October, 2014.** ## **J U D G M E N T** Under challenge is Ext.P6 order whereby the court below having formed the opinion that three voters voted at two different places, decided to verify the ballot papers and ordered opening of ballot papers accordingly. 2. The petitioner before this Court was elected from Ward No.11 of Pandy Constituency of Dhalampady Grama Panchayath in the election held on 23.10.2010. Altogether 791 votes were polled. The petitioner before the court below, who is the 1[st] respondent herein, challenges the election on the ground of double voting. The 1[st] respondent herein obtained 365 votes as against 367 votes polled in favour of the petitioner. On the basis of number of votes obtained, the petitioner was declared as elected. 3. The main ground of challenge before the court below was double voting by certain persons. Though eight persons **O.P.(C) No.2239/2013** **2** were named as guilty of double voting, ultimately, the petitioner before the court below succeeded in establishing only three persons were suspected of double voting. They are PWs 1 to 3. 4. The court below, on the basis of evidence of PWs 1 and 3, even though they had disputed the signature in one of the counterfoils, drew the inference that it is possible that they had voted twice and therefore called for opening of the ballot papers. Objection is taken to the said order. 5. Sri.K.I. Mayankutty Mather, learned counsel appearing for the petitioner, assailed the decision of the court below to open the ballot papers to ascertain the identity of the candidate for whom PWs 1 to 3 have voted in the constituency on a very short ground. Learned counsel pointed out that verification of ballot papers is not a matter of course and right and it is done only in exceptional circumstances. The court which decides to verify the ballot papers will have to prima facie be satisfied that there are strong grounds to infer double voting by the persons concerned. One does not begin by examining ballot papers to ascertain for whom the suspected persons voted. It is a condition precedent **O.P.(C) No.2239/2013** **3** to establish that the persons concerned are guilty of double voting as proved by the evidence adduced in the case. Learned counsel had no dispute regarding the proposition that the method by which double voting could be conclusively proved is by verification of the ballot papers. But the learned counsel was of the opinion that the court should have atleast verified the signature in the two counterfoils and then found out whether there is any similarity between them. There may be other telling circumstances to point out the guilt of the persons concerned. Merely because the Presiding Officer feels that the person concerned must have voted in two places by itself may not be a ground for verification of the ballot papers. That impression has to be gathered from evidence on record and it should be based on materials available in the case. It cannot be on the basis of assumptions and presumptions. The failure on the part of the court below to compare the signatures is fatal. For the said proposition, learned counsel relied on the decision in _**Sauda Beevi** vs._ _**Subaida Pareeth**_ (2012 (4) KLT 832). Learned counsel also relied on the decision in _**Vijayan** vs._ _**Lakshmi**_ (2013 **O.P.(C) No.2239/2013** **4** (1) KLT 94) regarding the principles and pleadings adopted in such cases. 6. Learned counsel appearing for the petitioner read out the chief examination of PWs 1 and 3 and pointed out that these witnesses have either denied their signature on one of the counterfoils or pleaded ignorance about their signature. Probably, in such circumstance, comparison of signatures might be an exercise in futility. But still the court has to undertake that exercise and if the court comes to the conclusion that signatures are different, that may not be the end of the matter. The court will be certainly entitled to look into other items of evidence to come to the conclusion that the allegation of double voting is established. However, according to the learned counsel, the mere assumption that it must have been double voting is not sufficient. Learned counsel pointed out that in the absence of any such evidence, the court below should not have ordered examination of ballot papers. Learned counsel also conceded that true that the petitioner could have challenged this in appeal that may have to be filed from the ultimate decision. But the **O.P.(C) No.2239/2013** **5** consequence would be the same. The appellate court would have no option but to allow the appeal and remand the matter. That exercise could be avoided at that point of time following the proper procedure. There is no reason as to why the said procedure could not be adopted. Viewed from that angle, learned counsel sought to sustain the challenge under Article 227 of the Constitution of India. 7. Learned counsel appearing for the respondents contended that the court below was satisfied on perusal of the evidence before it that there is clear case of double voting by PWs 1 to 3 and that finding is based on evidence on record. It is not necessary, according to the learned counsel, that the signatures on the two counterfoils in respect of the persons who are alleged to have double voted should be identical. In almost all cases it will be different. If the court forms the opinion that the signature on the two ballot papers is the sole criteria to determine double voting, it would be fatal. Certainly and surely, according to the learned counsel, the court can look into other circumstances and other items of evidence to come to the **O.P.(C) No.2239/2013** **6** conclusion that there has been double voting. That is what has been done by the court in the case on hand and there can be no grievance for the petitioner in that regard. It is however pointed out that merely because ballot papers are directed to be opened, it does not mean that it is the end of the matter as far as the petitioner is concerned. If there is any grievance for the petitioner, he is free to agitate it in appeal which may have to be filed against the ultimate decision. In other words, the contention is that the challenge is premature. 8. True, viewed in a technical manner, the contention has considerable force. But, then the consequence of non interference at this point of time will also have to be considered. If it is shown that the court below has not cared to compare the signature in the two counterfoils, that may be an irregularity. Even assuming that the signatures differ, as rightly pointed out by the learned counsel for the respondents, it does not preclude the court concerned from looking into other items of evidence to come to the conclusion that there has been double voting. But there must be other items of evidence to come to the conclusion **O.P.(C) No.2239/2013** **7** that there has been double voting. Merely because a person's name appears in two voters' list in two different constituencies is not by itself sufficient to hold that there has been double voting. Going by Section 76(3) of the Panchayath Raj Act, if a person votes in more than one booth that is penal and fatal and both votes became invalid. There should be proof with regard to the voting done in more than one booth. Normally one has to go by voters' list, counterfoils of the ballot papers and also the particular ballot paper. On a comparison of signature on the two ballot papers in two different constituencies, the court may draw an inference that it is the same person. Question arises when signature differs or when the person concerned denies the signature in one of the ballot papers. It may not be sufficient for the court then to say that the court is satisfied that the person has voted in two different places. There has to be other items of evidence which persuades the court to come to the conclusion that there has been double voting. The satisfaction of the court has to be based on materials and evidence and it cannot be a mere inference drawn on the basis of assumptions and **O.P.(C) No.2239/2013** **8** presumptions. 9. It is well settled that trial of election petition is similar to a criminal trial. It does not depend upon preponderance of probabilities. Proof required is of much higher standard and if that standard is to be applied in the case on hand, merely because voters' list contain the names of PWs 1 to 3, it does not lead to an inference that it must be the same person especially when the person concerned has either pleaded ignorance about the signature or has denied his signature in one of the ballot papers. Of course, the court can compare signatures and come to the conclusion that they are identical even when it is denied or ignorance is pleaded. But that exercise has to be necessarily adopted. If, on the other hand, signature does not help the court, the court is not precluded from looking into other items of evidence to come to the conclusion that there has been double voting. 10. In the case on hand, in respect of PWs 1 and 3, neither of the exercises have been undertaken. One of them pleaded ignorance about her signature in one of the ballot papers and the **O.P.(C) No.2239/2013** **9** other has categorically denied the same. The court did not bother to compare the signature or atleast to prima facie verify whether the denial or plea of ignorance is true. If it is found that the comparison of the signature does not help the court, the court will have necessarily to look into other items of evidence to come to the conclusion that there has been double voting. As already stated, the mere fact that the name of a person appears in two voters' list by itself is not conclusive or sufficient to draw a conclusion that there has been double voting. Viewed from that angle, challenge against the present order has to succeed in the absence of any convincing finding based on materials available on record regarding the guilt of double voting attributed to PWs 1 and 3. 11. Faced with the above situation, learned counsel appearing for the respondents pointed out that if this Court is of the view that such evidence is lacking, the respondents may be given liberty to adduce further evidence in that regard and they may be allowed to attempt to sustain its challenge. **O.P.(C) No.2239/2013** **10** 12. The request of the learned counsel appearing for the respondents seems to be reasonable. For the above reasons, this Original Petition is allowed. The impugned order is set aside and the matter is remanded to the trial court for fresh consideration of the double voting as far as PWs 1 and 3 are concerned. The parties will appear before the trial court on 10.11.2014. They will be allowed to adduce further evidence if they so choose. The court below shall dispose of the matter within a period of two months from the date of appearance of the parties provided the parties co-operate. Sd/- **P.BHAVADASAN JUDGE** smp