Shyni Santhosh v. Cyriac George

## **CR** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 23RD DAY OF JULY 2020 / 1ST SRAVANA, 1942** ## **CRP.No.59 OF 2020** **AGAINST THE JUDGMENT IN AS (ELECTION) 94/2019 DATED 13-12-2019 OF DISTRICT COURT, KOTTAYAM** **AGAINST THE ORDER IN OP(ELE) 2/2015 DATED 31-05-2019 OF MUNSIFF COURT, PALA** ## **PETITIONER/APPELLANT/1ST RESPODENT:** **SHYNI SANTHOSH, AGED 40 YEARS W/O. SANTHOSH, RESIDING AT KIZHAKKEKKARA HOUSE, RAMAPURAM BAZAR P.O., PIN 686 576, VELLILAPPALLY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** **BY ADVS. SRI.PHILIP T.VARGHESE SMT.V.T.LITHA** ## **RESPONDENTS/RESPONDENTS/PETITIONER AND RESPONDENTS 2,3,4:** - **1 CYRIAC GEORGE @ BENNY KACHIRAMATTAM AGED 49 YEARS SON OF GEORGE, RESIDING AT KACHIRAMATTAM HOUSE, RAMAPURAM BAZAR P.O., PIN 686 576, VELLILAPPALY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** - **2 JOSEPH ZACHARIAS @ OUSEPHY SON OF ZACHARIAS, AGED 71 YEARS,** **RESIDING AT MUNDAKKAL THEKKNATTU HOUSE, MARANGADU KARA, RAMAPURAM BAZAR P.O., PIN 686 576, VELLILAPPALLY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** - **3 PURUSHOTHAMAN NAMBOOTHRI, AGED 67 YEARS** **SON OF SREEDHARAN, RESIDING AT KURUVANICKAL ILLAM, MARANGADU KARA EZHACHERRY P.O., PIN 686 576, VELLILAPPALLY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** **CRP.No.59 OF 2020 2** **4 SUNIL, AGED 39 YEARS SON OF KESAVAN, RESIDING AT KIZHAKKEKKARA HOUSE, RAMAPURAM BAZAR P.O., PIN 686 576, VELLILAPPALLY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** **R1 BY ADV. P.S.GEORGE R1 BY ADV. SRI.K.C.VINCENT** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRP.No.59 OF 2020 3** ## **ORDER** The controversy in this case relates to the elections to ward No.7 of the Ramapuram Grama Panchayat and one among the pivotal issues in focus is the manner in which the attestation of the signature of a voter casting a postal ballot is to be done by the Attesting Officer in Form No.16 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995. 2. The elections were held on 5.11.2015 and the results were declared on 7.11.2015, leading to the declaration of the petitioner herein - Smt.Shyni Santhosh, to be elected, having secured 484 votes. 3. The 1[st] respondent - Shri.Cyriac George, was the closest candidate, securing 482 votes; and he, thereupon, challenged the elections under the provisions of the Kerala Panchayath Raj Act, 1994 (hereinafter referred to as ‘the KPR Act’ for short) on four grounds, namely:- (a) One of the votes ## **CRP.No.59 OF 2020 4** cast in one of the booths has not been recorded in the voting machine; (b)that three postal ballot votes are void because the statutory Form No.16 accompanying them, have not been signed by the voters; (c) that six votes in booth No.1 had not been recorded; and (d) that a person by name Shri.Rajendran cast his vote twice. 4. The election petition filed before the Munsiff’s Court, Pala, as O.P.No.2/2015, was resisted by Smt.Shyni Santhosh asserting that all the afore allegations are unsustainable and unfounded; thus praying that same be dismissed. ## 5. The Munsiff’s Court, Pala, thereafter, took the petition to trial and marked Exts.A1 to A6 on the side of the petitioner - Shri.Cyriac George; while Exts.B1 and B2 were marked on the side of the respondent therein - Smt.Shyni Santhosh. The Court also marked Exts.X1 to X12 as Court exhibits and examined PW1 to PW10 on the side of the petitioner; ## **CRP.No.59 OF 2020 5** while DW1 to DW5 were examined on the side of the respondent. 6. After evaluating the evidence and materials on record, the Munsiff’s Court allowed the petition finding that at least two postal votes are invalid, since the statutory Form No.16 declarations accompanying them were not signed by the respective voters; and further that one vote in Booth No.2 had not been recorded in the voting machine. It then proceeded to declare the elections to be vitiated; however, without conceding to the request of Shri.Cyriac George - the 1[st] respondent therein, to declare him to have been elected. 7. The judgment of the Munsiff’s Court, Pala, was taken up in appeal through A.S. (Election)No.94 of 2019 by Smt.Shyni Santhosh, which was heard by the learned Principal District Judge, Kottayam, leading to the impugned judgment, whereby, the findings and holdings of the Munsiff’s Court, ## **CRP.No.59 OF 2020 6** Pala have been confirmed and affirmed. 8. It is this judgment of the learned Principal District Judge, Kottayam, in the afore Appeal Suit, is now impugned before this Court. 9. I have heard Shri.Thomas Kachiramattam, learned counsel appearing for the petitioner - Smt.Shyni Santhosh and Shri.K.C.Vincent, learned counsel appearing for respondent No.1 - Shri.Cyriac George. 10. The records reveal that respondents 2 to 4, who were the other candidates in the elections, remained exparte throughout and did not prosecute the proceedings, which situation continues unchanged even before this Court, since they are neither present in person nor represented through counsel, even though service of notice on them is complete. 11. As I have already indicated above, there were four grounds of challenge raised by Shri.Cyriac George, but two among them – namely, that six votes in Booth No.1 was not ## **CRP.No.59 OF 2020 7** recorded and that certain Shri.Rajendran had cast his vote twice - were given up even before the Munsiff’s Court, Pala. Therefore, the only issues relevant are whether one vote in Booth No.2 had not been properly recorded in the voting machine and whether three postal ballot votes were void as alleged by Shri.Cyriac George. 12. When I go through the judgments of the Trial Court and the Appellate Court, it is evident that said Courts have found concurrently that one vote in Booth No.2 had not been properly recorded; while two postal ballot votes were void because the statutory Form No.16 accompanying them were not signed by the respective voters. 13. When I evaluate the merits of the contentions of the petitioner - Smt.Shyni Santhosh, I must bear in mind that the jurisdiction of this Court has been invoked only under Section 115 of the Civil Procedure Code (CPC for short); and therefore, that she ## **CRP.No.59 OF 2020 8** cannot expect this Court to act as a second Appellate Court. The jurisdictional province of this Court is only to verify whether the Courts below have acted within their jurisdiction and if their conclusions recorded in the orders are worthy in law and are forensically correct. 14. When I examine the judgments and the materials available on record, it is indubitable that the Courts below have found concurrently that the votes allegedly cast by PW3 Shri.Prasanth Kumar and PW5 - Shri.Anish Sebastian are void, since Form No.16 accompanying them had not been signed by them. 15. While arriving at this conclusion the Courts examined Ext.X5(b)and Ext.X5(a) - which are the applications for postal ballots made by Shri.Prasanth Kumar (PW3) and Shri.Anish Sebastian (PW5) respectively - against Ext.X7(c) and Ext.X7(d), which are the Form No.16 declarations accompanying the ## **CRP.No.59 OF 2020 9** said ballots. The Courts found that the signatures of the afore mentioned voters in the documents are completely at variance, but still did not immediately jump into the conclusion that they were void for that reason, but minutely scrutinized the documents and evidence on record to finally hold so. 16. The evidence on record as regards PW3 - Shri.Prasanth Kumar also consists of Ext.A6(b), which is the Attendance and Passport Register of the Kerala Police Academy, Thrissur, where he was working as an officer, produced on record through PW10 - the concerned officer in charge of the said record. 17. In the 2[nd] page of Ext.A6(b), as serial No.12, the Courts found that PW3 - Shri.Prasanth Kumar had been directed to report to the Deputy Commissioner of Police, Thrissur, for Local Body Elections on 31/10/2015; and further that, in page 3 ## **CRP.No.59 OF 2020 10** thereof, he returned to duty at the Kerala Police Academy only on 08/11/2015. The Courts also examined Ext.A5(a) General Diary maintained by the Kerala Police Academy to notice that PW3 - Shri.Prasanth Kumar, with Identity Card No.1302, had been deputed to the Chelakkara Police Station for election duty, thus concluding that he could not have been present for the elections to the Ramapuram Grama Panchayat held on 05/11/2015 or to present himself before the Gazetted Officer, who attested the Form 16 application, namely DW4 - Smt.Jessy C.Kappen, on 06/11/2015. 18. The Courts also found that there was absolutely no evidence to show that PW3 - Shri.Prasanth Kumar had left his official duties, as deputed by the Kerala Police Academy, on any date between 31/10/2015 and 08/11/2015, thus arriving at the opinion that he could not have participated in the election or to have presented himself before ## **CRP.No.59 OF 2020 11** the Gazetted Officer for having his Form No. 16 declaration attested. 19. The Courts, in addition, noticed that the signatures of PW3 - Shri.Prasanth Kumar on Ext.X5(b) (his application for postal ballot) and Ext.X7(c) (Form 16 declaration) were markedly different, which justified invocation of Section 73 of the Indian Evidence Act to hold that the latter document had not been signed by the said person. For this purpose, the Court also had examined the admitted signatures of PW3, including on his deposition sheets. 20. Next, coming to PW5 - Shri.Anish Sebastian, the Courts examined Ext.X12 series, which were the Attendance Register of the Rapid Response and Rescue Force for the month of November, 2015, which was marked through PW8-the officer in custody of the same. The said document shows that PW5 - Shri.Anish Sebastian was on guard duty on the 4[th] ,5[th ] and 6[th] of November, 2015, and that he ## **CRP.No.59 OF 2020 12** was on ‘tapal duty’ on the 7[th] and 8[th] of the said month. The Courts also noticed that the signatures of Shri.Anish Sebastian on Ext.X5(a) (his application for postal ballot) and Ext.X7(d) (Form 16 declaration) were so different that, even on a cursory examination, no one could say that they were even similar, much less the same. The Courts also saw that the name of Shri.Anish Sebastian was shown as Shri.Aneesh in Ext.X7(d), thereby holding that the said Form 16 declaration had not been presented by him before DW4 - Smt.Jessy C.Kappen, the concerned Gazetted Officer. 21. The deposition of Smt.Jessy C.Kappen, as DW4, also lend strength to the holdings of the Munsiff Court and the District Courts, since she testified that she neither knew either PW3 or PW5 personally; nor were introduced to her by any other person, personally known to her. 22. This is crucial because, going by ## **CRP.No.59 OF 2020 13** the format of Form No.16 declaration, a Gazetted Officer is expected to identify the voter either through personal knowledge; or on the voter being identified, to his/her satisfaction, by another person, who is personally known to him/her. 23. The statutory form of attestation in Form No.16 of the Rules is as below: ## **ATTESTATION OF SIGNATURE** The above has been signed in my presence by …............ the elector, who is personally known to me/has been identified to my satisfaction by ............. (identifier) who is personally known to me. Signature of identifier, if any : Signature of attesting Officer : Designation and address : : 24. The words 'to his satisfaction' in the afore form is extremely important because the concerned officer cannot attest every declaration that is brought to him but only in those cases where he knows the voter personally; or when the voter is identified by another person known to him. However, in ## **CRP.No.59 OF 2020 14** the latter case, there is an added obligation on the officer that the identity of the voter, who is introduced to him by another, is sufficiently established through reliable documents and materials, so as to enable him to form the satisfaction regarding the voter's identity. The purpose behind mandating such an attestation is obviously to prevent the mischief of impersonation and misuse of ballot votes. The declaration in Form No.16 is mandated by Rule 22 of the Rules, which seeks to ensure the above, by giving it a statutory habiliment. Therefore, needless to say, unless the Gazetted Officer personally knows the voter; or satisfies himself as to his identity - in the event of the voter being identified by another person who is also known to him - he would obtain no statutory competence to make the attestation. 25. However, in this case, DW4, in her testimony, admitted that she neither knew the voters, nor were they identified by another ## **CRP.No.59 OF 2020 15** person known to her. To exacerbate the error, she was unable to say on what basis she had identified PW3 and PW5, except that she relied on some identity cards, which she was unable to describe before the Munsiff’s Courts; but expressly admitting that she had not written its details in the declarations signed by her. She was also asked specifically as to whether she knew that PW3 and PW5 were Officers of Police and Rapid Response and Rescue Force respectively, to which, her answer was to the negative. She was also unable to say anything as regards the physical features of PW3 and PW5, or to even remember anything about them sufficient to show that she had identified them properly before attesting the declarations. 26. The Courts below, therefore - and rightly in my firm view - concluded that the postal ballot votes, allegedly cast by PW3 and PW5 are void; and then went on to consider the second ground of challenge, ## **CRP.No.59 OF 2020 16** namely, that one vote in Booth No.2 had not been recorded in the Electronic Voting Machine. On this aspect, the evidence consisted of Ext.X3(d), the Vote Register in Form No.24A of the Rules and Ext.X9(a), the details from the Electronic Voting Machine. The Courts below have concurrently found that though Ext.X3(d) showed 704 voters had claimed ballots, only 703 votes had been registered in the Machine. Since, as per the applicable statutory procedure, the details of any voter who had claimed his ballot but had not cast, his vote was to be recorded in Ext.X3(d) - in terms of Rule 35D or Rule 35F(4) of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995-the same was also examined from that angle. However, there was no such record, but Smt.Shyni Santhosh asserted that one of the voters may have voted for the District and Block Panchayats, but failing or refusing to vote at the Grama Panchayat level. However, this being only ## **CRP.No.59 OF 2020 17** speculative, without any evidence to support it, both the Courts found in favour of Shri.Cyriac George on this issue also. 27. The learned Munsiff’s Court thus declared the elections to be vitiated on account of the fact that when these three votes are taken out of the equation, both the candidates - namely Smt.Shyni Santhosh and Shri.Cyriac George - would get the same number of votes, namely 482. These findings and holdings have been approved by the Appellate Court also. 28. When I examine the conclusions of the Trial Court, affirmed by the Appellate Court, I must record upfront that I cannot find them to be in error, since the evidence and documents on record have been meticulously examined by them, before arriving at their respective opinions. 29. There is absolutely nothing on record to show that PW3 or PW5 had any occasion to leave their official posts, either on the ## **CRP.No.59 OF 2020 18** date when the elections were held on 5/11/2015; or on the day on which Form 16 declarations are stated to have presented before DW4. 30. Interestingly, the contention of the petitioner - Smt.Shyni Santhosh, as voiced by her learned Counsel Shri.Thomas Kachiramattam, is that the Courts ought to have presumed that PW3 and PW5 had left their official posts ‘unofficially’ and without any documentation to such effect, so as to cast their votes; and that they were subsequently forced to lie in Court, since they would be found guilty in having done so. I am afraid that this is too conjectural and speculative to be even noticed by this Court, particularly when, as I have already said above, the Courts below have examined all the relevant documents to hold unequivocally that PW3 and PW5 could not have left their official posts or positions during the relevant period without sufficient official ## **CRP.No.59 OF 2020 19** documentation, which fact is unequivocally admitted to by PW10 and PW8 - their controlling officers. 31. That being so said, I will now deal with the other grounds impelled in this petition. 32. The first is that the evidence of DW2 and DW3-the Postmen who had delivered the postal ballots at the addresses of PW3 and PW5 – ought to be given sanctity and therefore, that it must be taken by this Court that the said ballots were received by these persons. This contention is of no real consequence because even if it is so acceded, there cannot be an automatic presumption that PW3 and PW5 had subsequently cast their votes. 33. The next ground urged is that both PW3 and PW5 are under the influence of Shri.Cyriac George – the 1[st] respondent herein, and that the evidence of DW4 - Smt.Jessy C.Kappen is protected by the ## **CRP.No.59 OF 2020 20** judgment of the Hon’ble Supreme Court in _**Sanjay Kumar Bajpai v. Union of India & Others [1997(10)SCC 312],**_ which provides that a presumption regarding official acts should be drawn. 34. The afore contentions cannot obtain any approval at this stage because, as I have already indited afore, the evidence on record do not establish, in any manner, that DW4 had acted properly or diligently in the discharge of her official duties, since her deposition shows that she had no idea who were before her while she attested the Form 16 declarations. This is more so because, she has been unable to recollect which were the identity cards or documents, based on which she had made the attestation, nor are its details, admittedly, mentioned in the Form 16 declarations. A presumption of validity of an official act can attach only if the said act is found to have been done as per law and established procedure and not otherwise. In ## **CRP.No.59 OF 2020 21** this case, having seen otherwise, I cannot support the attestation by DW4 as being one eligible for such presumption. 35. That said, the allegation of influence of Shri.Cyriac George over PW3 and PW5 are totally without support in the evidence and hence cannot appeal to this Court either. 36. Finally, it is predicated that the burden of proof for showing that PW3 and PW5 did not cast their votes - after receipt of the ballots by them at their addresses at Ramapuram having been established through DW2 and DW3, Postmen - is squarely on them; and that since this burden has not been discharged by them, this Court must find in favour of Smt.Shiny Santhosh. Here again, as I have already seen earlier, the deposition of PW3 and PW5, juxtaposed by all the other evidence and material on record, clearly show that they had no occasion to travel outside their official duty on 05/11/2015 or on **CRP.No.59 OF 2020 22** 06/11/2015, when the elections in question were held and Form 16 declarations are seen attested respectively. Their clear and unimpeached testimonies discharge any burden on them and I, therefore, repel these contentions of the petitioner. 37. When I so conclude, am also aware that the Courts below have found that one vote was missing in Booth No.2 of Ward No.7 of the Ramapuram Grama Panchayat. The learned Appellate Court has opined that this will not materially alter the results of the elections, since the difference between the closest candidates was more than one. This opinion of the Appellate Court is only to mean that since two postal ballot votes have been found vitiated, reduction of one vote in the Electronic Voting Machine in Booth No.2 - which certainly stands proved-by itself would be of little consequence, since Shri.Cyriac George had, even before the Munsiff’s Court, given up his prayer that he be declared ## **CRP.No.59 OF 2020 23** elected. Obviously, therefore, the Appellate Court was justified in holding that this factum by itself is irrelevant. However, I fail to see how this conclusion can offer any benefit or solace to the petitioner In the afore circumstances, I find absolutely no reason to interfere with the concurrent findings of the Munsiff’s Court and the District Court, and thus dismiss this CRP; however, without making any order as to costs, taking note of the rather peculiar circumstances involved. Before parting, I deem it appropriate that a copy of this judgment be made available to the State Election Commission for their information, since most of the issues in this case could have been avoided had the Gazetted Officer acted strictly in terms of the statutory provisions. Even though it is not statutorily mandated and without meaning it to have any effect on the case at hand, this Court certainly feels it a **CRP.No.59 OF 2020 24** desideratum that in cases where the Attesting Officer is not personally aware of the voter, the document or the identity cards relied on by him/her to identify the voter - based on the introduction made by another person - be also recorded in the declaration itself, so that if any such contentions come up in future, the said officer will be in a better position to explain the basis on which he/she has acted. This is only a suggestion, which the State Election Commission may consider. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** **MC/27.7.2020**