V.N. Rajesh v. Sibu Devasia and Rajiv RAJU

``` OP(C) NO. 602 OF 20231 ``` # **`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. 602 OF 2023 ``` ## **`OPELE 1/2021 OF MUNSIF COURT, KANJIRAPPALLY`** ## **`PETITIONER/S:`** ``` V.N.RAJESH, AGED 41 YEARS,S/O.NARAYANA PILLAI, VALIYAPARAMBIL HOUSE, THAMBALAKKADU KARA, ANAKKALLU P.O., KANJIRAPPALLY VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT, PIN - 686508 BY ADVS. P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT ANNA LINDA EDEN HARIKRISHNAN S. S.SREEKUMAR (SR.) ``` ## **`RESPONDENT/S:`** ``` 1SIBU DEVASIA, AGED 43 YEARS,S/O.DEVASIA, KUNNEPPARAMBIL HOUSE, KAPPADU P.O. THAMBALAKKADU KARA, KANJIRAPPALLY VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT., PIN - 686508 2RAJIV RAJU @ UNNIKKUTTAN, AGED 36 YEARS,S/O.RAJU, ANIKKATTUKUNNEL HOUSE, THAMBALAKKADU KARA, ANAKKALLU P.O., KANJIRAPPALLY VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT., PIN - 686508 ``` ``` OP(C) NO. 602 OF 2023 ``` ``` 2 ``` ``` BY ADVS. MOHAN JACOB GEORGE P.V.PARVATHY (P-41)(K/000036/1991) REENA THOMAS(R-364) NIGI GEORGE(K/1169/2012) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 602 OF 2023 ``` ``` 3 ``` ## **JUDGMENT** The original petition is filed challenging Ext.P3 order dated 13.03.2023 passed in Ele.O.P.No.1/2021 (in short, ‘election petition’) by the Court of the Munsiff, Kanjirappally. The petitioner is the 1[st] respondent and the respondents are the petitioner and the 2[nd] respondent before the court below. 2. The relevant background facts leading to the impugned order are: (i) The petitioner is the returned candidate in the elections held on 10.12.2020 to Ward No.IV of Manjappally Constituency of Kanjirappally Grama Panchayat. (ii) The petitioner was duly declared elected on 16.12.2020 after having secured 610 votes. The 1[st] respondent secured 607 votes and the 2[nd] respondent secured 150 votes. (iii) The 1[st] respondent has challenged the election of the petitioner on the ground that there was improper reception of void votes, because six electors had cast their ``` OP(C) NO. 602 OF 2023 ``` ``` 4 ``` votes in two constituencies in flagrant violation of Section 102(1)(d)(iii) of the Kerala Panchayat Raj Act, 1994 (in short, ‘Act’). The petitioner has opposed the election petition through Ext.P2 written statement. (iv) The court below formulated five issues and parties went to the trial. (v) The 1[st] respondent examined PWs.1 to 19 and marked Exts.A1 to A11, X1 to X72 and C1 to C13. The petitioner and the 2[nd] respondent did not let in evidence. (vi) The court below, after hearing both sides, on an erroneous appreciation of the pleadings and materials on record, by the impugned Ext.P3 order, has rendered a finding on issue No.(i) holding that PWs.10 to 13 and 17 have cast their votes twice. (vii) Ext.P3 order is ex-facie erroneous and wrong. Hence, the original petition. 3. Heard, Sri.S.Sreekumar, the learned Senior Counsel appearing for the petitioner and Sri.Mohan Jacob George, the learned Counsel appearing for the 1[st] ``` OP(C) NO. 602 OF 2023 ``` ``` 5 ``` respondent. 4. Sri.S.Sreekumar vehemently impeached the impugned order principally on the ground that the court below has on its own volition, with naked eyes, indulged in the exercise of comparing the signatures of PWs.10 to 13 and 17 in the Voters Registers and other materials in the two constituencies under Section 73 of the Indian Evidence Act. He placed strong emphasis on the decision of the Honourable Supreme Court in **State (Delhi Administration) v. Pali Ram [1979 KHC 525]** to drive home the point that it is not advisable for a Judge to take up the task of comparison. Instead, the prudent and advisable course is to seek the opinion and assistance of an expert. He also placed reliance on the decisions of the Honourable Supreme Court in **Bharathan v. Sudhakaran [1996 KHC 97]** and **Ajay Kumar Parmar v. State of Rajasthan [2012 KHC 4540]** and the decisions of a Division Bench of this Court in **Chandrasekharan Nair v. M/s. Olympic Credit Corporation, Kottayam and** ``` OP(C) NO. 602 OF 2023 ``` ``` 6 ``` **another [2014 (1) KHC 710]** and **Antony K.O. and another v. M.K.Krishnankutty Menoki and others** **[2017 (1) KHC 479]** to buttress the legal position on Section 73 of the Indian Evidence Act. It was his submission that the findings in the impugned order that PWs.10 to 13 and 17 have cast their votes twice is erroneous. Likewise, the court below has pre-judged the election petition, which has caused prejudice to the petitioner,. Hence, the impugned order is to be set aside. 5. Sri.Mohan Jacob George assiduously countered the above submissions and defended the impugned order. He contended that the learned Munsiff was perfectly justified in rendering a finding on issue No.(i) that PWs.10 to 13 and 17 have cast their votes twice, which is the proper course to be followed by Courts, because of the profusion of precedential authority, especially the law laid down by the Honourable Supreme Court in **Neelalohithadasan Nadar v. George Mascrene [1994 KHC 186].** He also drew the attention of this Court to the ``` OP(C) NO. 602 OF 2023 ``` ``` 7 ``` decisions of this Court in **Sauda Beevi K.S. v. Subaida Pareeth and others [2012 (4) KHC 802]** and **Anitha v. Beena [2004 KHC 748]** to reinforce the impugned order. 6. The point is, is there any error in Ext.P3 order warranting interference by this Court under Article 227 of the Constitution of India. 7. The petitioner is the returned candidate to Ward No.IV of Manjappally Constituency of Kanjirappally Grama Panchayat in the election held on 10.12.2020. 8. Indisputably, the petitioner secured 610 votes, the 1[st] respondent secured 607 votes and the 2[nd] respondent secured 150 votes. Thus, the margin of victory is three votes. 9. The 1[st] respondent has assailed the election on the specific allegation that five electors namely Subeena Suneer (PW10), Shiyas (PW11), Ajimon (PW12), Suresh (PW13) and Elias (PW17), have indulged in double voting, rendering their votes void, which has materially affected the election, warranting the election of the petitioner to be ``` OP(C) NO. 602 OF 2023 ``` ``` 8 ``` set aside. 10. The election petition is resisted by the 1[st] respondent through Ext.P2 written statement, who has denied the allegation of double voting. 11. The parties went to trial. PWs.1 to 19, including the twice were electors who allegedly cast their votes examined as PWs.10 to 13 and 17. 12. During the course of the proceeding, the 1[st] respondent gave up the contention that six voters had cast their votes twice, and confined the assertion to five voters. Consequently, the crux of the issue has dwindled down to whether PWs.10 to 13 and 17 have cast their votes twice, if substantiated, doubtlessly, materially affects the election. ## 13. The court below formulated five issues. - (i) Did the persons named in the Election Petition cast their vote twice? - (ii) If yes, was it a corrupt practice of the Respondent? (iii) Is the election of the first Respondent as member of Kanjirappally Panchayat from Manjappally Ward No.4 to be set aside? - (iv) Is the Petitioner to be declared as duty elected from Manjappally Ward No. 4 of Kanjirappally Panchayat? - (v) What shall be the order as to costs? ``` OP(C) NO. 602 OF 2023 ``` ``` 9 ``` 14. After a threadbare analysis of the pleadings and materials on record, the court below has lucidly answered issue No.(i) in the affirmative, that PWs.10 to 13 and 17 have cast their votes in two constituencies, thereby rendering their votes void. 15. Sri.S.Sreekumar’s sheet anchor is the comparison exercise carried out by the court below is in hostile disregard to the _ratio decidendi_ in **Pali Ram** and **Bharathan** (supra). 16. I completely disagree with the canvassed proposition, in view of emphatic declaration of law by the three-Judge Bench of the Honourable Supreme Court in ## **Neelalohithadasan Nadar** (supra), holding as follows: “15. In the matter of correlation and employment of Section 73 of the Evidence Act, the High Court took support from a decision of this Court in Fakhruddin v. The State of Madhya Pradesh (AIR 1967 SC 1326). The High Court justified its step of comparison in paragraph 13 of the judgment under appeal as follows: "Learned counsel representing the first respondent raised a contention that this Court should not take the part of an expert in handwriting to compare the signatures of witnesses to find out whether they were signatures of the same person. According to counsel, the disputed signatures should be sent to experts for their opinion. In the alternative it is ``` OP(C) NO. 602 OF 2023 ``` ``` 10 ``` contended that petitioner should examine persons familiar with the signature of the witnesses to establish the identity of signatures. Handwriting may be proved on admission of the writer or by the evidence of some witness in whose presence it was written. This is direct evidence. In the absence of such direct evidence, opinion of handwriting expert or of some who is familiar with the writing of the person is relevant. Thus besides direct evidence which of course is the best method of proof, the law makes two other modes also as relevant, i.e., a writing may be proved to be the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to compare the handwritings on a scientific basis. A third method is also provided by the Evidence Act in Section 73. It is comparison by the court with the writing made in the presence of the court or admitted or proved to be the writing of the person. The Court can apply its own observation to the admitted or proved writings and to compare them with the disputed one. This comparison depends on an analysis of the characteristics in the admitted or proved writings and of the same characteristics in large measure in the disputed writing. Even if there is the opinion of the expert on the handwriting, it is subjected to the scrutiny by court. The expert's opinion is not the final word. The court must see for itself whether it can safely be held that the two writings are of the same person. To this extent, court may play the role of an expert. The court can accept the disputed signature to be that of the witness when it is satisfied on its observation that it is safe to accept the same. In this view, I do not think it necessary to have the admitted signature of the witness to be compared with the signature in the disputed counterfoils of the ballot paper by any expert. This Court can scrutinise the characteristics of the signatures. If it finds that the disputed signature has the same ``` OP(C) NO. 602 OF 2023 ``` ``` 11 ``` characteristics in large measure with the admitted signature, it can safely come to the conclusion that both are of the same person." The High Court finally recorded its satisfaction or otherwise in the case of signatures resulting in double voting and impersonation, and signatures and thumb impression not tallying at all. No meaningful argument on facts in regard thereto was addressed before us except to the approach of employing Section 73 of the Evidence Act. It was urged that the High Court should not have become an expert. **We, however, are of the view that when larger public interest is served by expeditious disposal of an election petition, then the course adopted by the High Court, as suggested from the afore-extraction, is in conformity therewith. Although courts should be slow in resorting to this method, we do not find it faulted, more so when the courts resort to exercise of such power is approved in two other cases of this Court in State (Delhi Administration v. Pali Ram [(1979) 1 SCR 931] and Murari Lal v. State of M.P.[(1980) 2 SCR 249].** As a sequitur the finding recorded by the High Court on issue 1 is perfectly sound.” ## 17. The above view has been reiterated by this Court in **Sauda Beevi** ’s case (supra), after a survey of the precedents holding the field, holding thus: “6. xxxx xxxx xxxx xxxx xxxx It is thus clear that the appellate court had not taken upon itself the task of comparing the signatures with naked eye as empowered under Section 73 of the Indian Evidence Act, 1872 even though it was a final court of facts. **There was a divergence of judicial opinion as to whether the election court could indulge in the comparison of the disputed signature or writing with the admitted or proved signature or writing. Divergent views were so expressed in Neelalohitadasan Nadar v. George Mascrene, 1994 KHC 186 : 1994 (1) KLT 887] : 1994** ``` OP(C) NO. 602 OF 2023 ``` ``` 12 ``` **Supp (2) SCC 619 and O.Bharathan v. K.Sudhakaran and another, 1996 KHC 97 : 1996 (2) SCC 704 : 1996 (1) KLT 466 : AIR 1996 SC 1140. But this Court chose to follow the dictum in Neelalohitadasan Nadar's case in Mohammed Rafi.S. v. Fathahudeen and others, 2008 (3) KHC 644: ILR 2008 (3) Ker. 641] The same was done in Indulekha v. Preetha Kumari and others, 2010 (2) KHC 113 : ILR 2010 (2) Ker. 468: 2010(2) KLT SN 26 also obviously because the decision in Neelalohitadasan Nadar's case was rendered by a Larger Bench. I also notice that the dictum in Neelalohitadasan Nadar's case has been quoted with approval in Kuldip Nayar v. Union of India, 2006 KHC 1079: 2006 (7) SCC 1 : JT 2006 (8) SC 1: AIR 2006 SC 3127 to hold that purity of election is utmost than secrecy.** ” ## 18. In **Anitha v. Beena [2004 KHC 748]** , this Court again following **Neelalohithadasan Nadar,** held as follows: “15. xxxx xxx xxx xxx xxx xxxx The learned Munsiff on a comparison of admitted signatures of Chandra Babu available in the deposition and Ext.X19(a) found that Chandra Babu himself had voted on both places. The District Judge interfered on the reason that Ext.X18 marked voters list produced by the Returning Officer did nor, contain a tick mark or underlining with red ink as in the case of other votes actually cast in that division. But in the face of Ext.X19 vote register pertaining to Manakkad division which contains the full signatures of the voters whose votes were actually cast, it will have to he found that non underlying or non ticking against the name of Chandra Babu in Ext.X18 is an omission. The served summons and the deposition contains the indisputable signatures of Chandra Babu and on my comparison also I find that the learned Munsiff's view that these signatures and the signature on Ext.X19(a) compare favourably cannot be said to be unreasonable. Chandra Babu could obtain ``` OP(C) NO. 602 OF 2023 ``` ``` 13 ``` registration of a vote in Manakkad also, in view of the obvious position that his wife's house belongs to that division. Even though the suggestion that Chandra Babu is a Congress worker belonging to U.D.F. is denied, I am of the view that the District Judge was not justified in interfering with the finding of the learned Munsiff that Chandra Babu's vote in Palkulangara is void due to double voting.” ## 19. Again, in **Indulekha v. Preetha Kumari and Others [2010 (2) KHC 113]** this Court held thus: “6. xxxx xxxx xxxx xxxx First of all the question canvassed as to the competency of the courts to compare the disputed writings and signatures and to express an opinion thereof on comparison with the admitted writings and signatures without the assistance of an expert, over which both sides have presented divergent and conflicting versions relying on the judicial pronouncements in support of their respective case is not of much significance. **There is no need to examine which among the rival view is acceptable as there is a binding decision by the apex court indicating that the dispute is no longer res integra, but it has been settled. The Apex Court in Neelalohithadasan Nadar v. George Mascrene and others {1994 (2) Suppl. SCC 619} has held that when larger public interest has to be served by expeditious disposal of election petition, it is open to the court to compare the admitted signatures of the voters with the disputed counterfoils or documents. True, there is a note of caution in that judicial pronouncement that the court should be slower in adopting that course. So much so, at least in the case of disputes over writings and signatures in the counterfoils or documents relating to an election proceeding, the empowerment of the court to compare the disputed writings and signatures cannot be doubted at all. But whether the court has to do such exercise, without seeking the assistance of an expert depends upon the facts of each case. The above judgment having been rendered by a three judges** ``` OP(C) NO. 602 OF 2023 ``` ``` 14 ``` **bench of the Apex Court, the binding force of that decision over and above the pronouncement made by benches of lesser number of Judges need not at all be stated.** Suffice to state that an Election Tribunal, a court trying an election petition, is fully competent to compare the admitted signatures of the voters with the disputed counterfoils or documents, but it should be slower in adopting that course. Whether that course has to be adopted or not depends upon the materials produced, and the court trying the election petition has to exercise its discretion judicially in proceeding with the exercise of comparing the admitted signatures of the voters with the disputed counterfoils or documents. The challenge raised in the revision by the learned counsel for the returned candidate, the revision petitioner, that the court cannot compare the counterfoils of the voter with the admitted signatures and it has to seek the assistance of an expert, if at all the writings or signatures are disputed, in the light of the binding judicial pronouncement as referred to above has no merit at all. That line of attack pressed into service to assail the concurrent decision of both the courts is meritless.” 20. It is contextual and apposite to refer to the observations made by this Court in **Ravindran Pillai N. v. Gopakumar Rajan and another [2009 (3) KHC 490]** on the presumption of casting votes after the introduction of photo identity cards, which reads as follows:- “12. After the issue of photo identity cards to the voters and preparation of electoral roles with photos, it may not be correct to examine the question of double voting with respect to presumptions to be drawn thereof as laid down by this Court in Kunhiraman v. Krishna Iyer (1962 KLJ 289). In the above decision, it has been held that there is a presumption that both votes were not cast by the same ``` OP(C) NO. 602 OF 2023 ``` ``` 15 ``` person which is stronger than the presumption that every vote is cast by the elector concerned, but after the issuing of photo identity cards wherein a presiding officer of a polling station issues a ballot paper to an elector or allow him to cast the vote by using the electronic machine, only after identification of his photo identify card or some other documents acceptable enough to identify the voter, the chances of impersonation of a voter is practically impossible. So much so, the similarity of the signatures in the respective vote account registers of these three witnesses has to be viewed in the backdrop that these voters had been issued identity cards in those wards also, other than ward No.38 of Kalamassery Municipality and their impersonation in casting of votes in those wards can be ruled out unless it is shown that someone else had cast their votes even by forging an identity card and without any objection raised by the agents of the candidates present in the booth challenging that impostor.” 21. On a careful and close reading of the impugned order, it can be deciphered that the court below has arrived at the finding on issue No.(i) not solely based on the comparison, but on an overall analysis of the entire materials on record, which has been candidly articulated in the impugned order. 22. The court below has rendered a specific finding on double voting before proceeding to the next stage. I completely endorse and confirm the course adopted by the court below, which is in conformity with ``` OP(C) NO. 602 OF 2023 ``` ``` 16 ``` **Neelalohithadasan Nadar** (supra) and **Naushad M.M. v. Thambilali Meethal Rajan and others [2014 KHC 470]** , laid down by this Court. 23. An up-shoot of the above discussion impels me to confirm the impugned order, which is justiciable and in consonance with the authoritative precedents holding the field. 24. It is trite; the exercise of the power of superintendence of this Court under Article 227 of the Constitution of India is to keep the courts of the District Judicature within their bounds of authority and to see that they do the duty as expected of them. The High Court is not vested with any unlimited prerogative to correct all decisions made within the limits of the jurisdiction of the subordinate courts. The exercise of this power and interfering with the orders of the courts is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains ``` OP(C) NO. 602 OF 2023 ``` ``` 17 ``` uncorrected. It is well-nigh settled that while acting under the Article, the High Court is not acting as an appellate court to substitute the judgment of the subordinate courts. In the above conspectus, this Court does not find any ground to hold that the court below has exceeded its powers and authority in rendering the impugned order, warranting interference by this Court under Article 227 of the Constitution of India. The original petition is meritless and is, hence, dismissed. **Sd/-** ## **C.S.DIAS, JUDGE** okb/20.3.23 //True copy// P.S. to Judge ``` OP(C) NO. 602 OF 2023 ``` ``` 18 ``` ## **`APPENDIX OF OP(C) 602/2023`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF ELE O.P. NO. 1 OF 2021 FILED BY THE 1ST RESPONDENT BEFORE THE MUNSIFF'S COURT, KANJIRAPPALLY Exhibit P2TRUE COPY OF WRITTEN STATEMENT FILED BY THE PETITIONER / 1ST RESPONDENT IN ELE O.P. NO. 1 OF 2021 BEFORE THE MUNSIFF'S COURT, KANJIRAPPALLY Exhibit P3TRUE COPY OF ORDER DATED 13/02/2023 IN ELE O.P 1/2021 OF THE MUNSIFF'S COURT, KANJIRAPPALLY Exhibit P4TRUE COPY OF THE DEPOSITION OF PW10 Exhibit P5TRUE COPY OF THE DEPOSITION OF PW11 Exhibit P6TRUE COPY OF THE DEPOSITION OF PW12 Exhibit P7TRUE COPY OF THE DEPOSITION OF PW13 Exhibit P8TRUE COPY OF THE DEPOSITION OFPW17 ```