SHYAMA KANT DUBEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS order shall dispose of C.W.J.C. No. 6129/2002 (Shyama Kant Dubey V/s. The State of Bihar and Ors.) Shambhu Singh Versus State Of Bihar and C.W.J.C. No. 6342/2002 (Pran Nath Singh V/s. The State of Bihar & Ors.)

(2.) THE facts in nutshell are that the present petitioner Shyama Kant Dubey, petitioner Pran Nath Singh of C.W. J.C. No. 6432/2002 and number of others contested the election for the office of Mukhiya of the constituency known as South Gaundhara. After conclusion of the election and count of the votes the present petitioner Shyama Kant Dubey was declared elected by margin of six votes. Being aggrieved by the said results Pran Nath Singh, the election petitioner filed an election petition inter alia submitting that from the records and the diary maintained by the Polling Officer it would clearly appear that there were number of bunglings in the counting, certain unsocial elements had taken -over the polling booth and had used signed and unsigned votes. It was also submitted by him that from the records available it would clearly appear that only 486 votes were cast while the counting was of 496 votes. Shyama Kant Dubey, the returned candidate contested the election petition tooth and nail and submitted before the Court that the elections were free, were not adversely affected because of any ministerial/clerical mistake and as his election results were in accordance with the results the election petition be dismissed. The learned trial court afforded proper opportunities of hearing to the parties, recorded the evidence of the witnesses, received the documentary evidences and vide its order dated 15th April, 2002 (Annexure -1) observed that the elections were adversely affected because of wrong counts and because certain unsocial elements have caputred the booth. While observing that the counting was illegal it also observed that the present petitioner Shyama Kant Dubey had committed corrupt practices, and, accordingly allowed the election petition.

(3.) IN a petition under Article 227 of the Constitution of India when correctness, validity and propriety of an order passed by subordinate Tribunal is challenged the High Court does not sit as a Court of appeal. It does not look into sufficiency or insufficiency of the evidence but would look into the decision making process. Under the law the judgment of the election petition would be final and cannot be challenged anywhere but in my opinion to a limited extent the High Court can look into th the order is patently illegal, is contrary to law or is in teeth of the provisions of law or the decision suffers with the decision making process then the High Court can interfere in the matter. In the present matter the learned election Tribunal has considered the entire oral evidence available on the record, it has also given due consideration to the documentary evidence filed on the side of the election petitioner. From Annexure -A to Annexure -D it would clearly appear that contrary to the instructions issued by the Election Commission certain interpolations were made. Instead of making correctness by adding or deleting or by such other procedure as allowed by the Election Commission, the concerned officers have scored off the entire results and had given the fresh figures. This apparently is an illegality which may adversely affect the election and the election results. From Annexure -D the diary of the election Officer it would clearly appear that at about 4 -4.15 P.M. certain unsocial elements entered into the election booth mishandling the officers snatched the ballot papers, some were torn and some after affixation of the seals were put in the ballot boxes. It is also in the diary that those unsocial elements/miscreants wanted to take away the ballot boxes but because of the interference of the guards they could not succeed in their illegal designs. Relying upon these facts the election Tribunal held that the elections were not peaceful. It also observed that total 486 votes were cast while the result was declared in relation to 496 votes. If the margin of victory was more than ten votes then obviously the present petitioner/returned.candidate could maintain before this Court that even if the ten votes were illegally counted in his favour or were reduced from what he has received then too the election results would not be adversely affected. In the present case the margin is six votes only. If the margin is six votes and the illegality is in Shambhu Singh Versus State Of Bihar relation to ten votes then obviously the results are adversely affected. While recording the finding the learned Tribunal observed "that the third party committed corrupt practices to see that the petitioner succeeds". Further, in paragraphs 42, 43 of the order it did not record even a single finding that the corrupt practices adopted by the Election Officer or the miscreants was at the instance of or under the directions of the returned candidate. In absence of such a finding, in my considered opinion the Court below cannot observe that the present petitioner also committed corrupt practices. That part of the order appears to be illegal and deserves to be set aside.