Patna High Court refused to issue interim orders on prayers of Kumari Anita, Munger Lok Sabha candidate

In Kumari Anita Vs. Election Commission of India, Justice Rajeev Ranjan Prasad of Patna High Court passed an order on June 3, 2024 adjourning the hearing for twelve weeks. This writ application was filed praying for issuance of an appropriate writ, order or direction in the nature of mandamus or any other writ, order or direction under article 226 of Constitution of India inter alia declaring: the Election Commission of India to conduct re-polling in the booths No. 33 to 60, 200, 201, 202, 205, 207, 208, 209, 210, 211, 212, 213, 219, 221, 222, 223, 224, 225, 226, 227, 228, 229, 232, 233, 234, 235, 236 Mokama Vidhan Sabha Constituency, Booth No. 236, 237, 238, 265, 266, 349, 392, Lakhisarai Assembly Constituency and Booth No. 157 and 179 Suryagarha assembly constituency. It also prayed for issuance of an appropriate writ directing the Respondent No. 1 to remove the D.M./D.E.O., Avaneesh Kumar Singh (District Election Officer) Munger parliament constituency (28) Bihar from all administrative responsibilities, for issuance of an appropriate writ directing the Respondent authorities to supply copies of the 17-C forms in terms of the Rule 93 of Conduct of Election Rules, 1961 and sought direction for Election Commission of India to ensure the free and fair election and counting is conducted in the Munger Parliament constituency (28) Bihar.

The petitioner's counsel submitted that as far as the prayer for removal of the District Magistrate/District Election Officer Avaneesh Kumar Singh is concerned, there is no personal allegation against him and that is why he is not made a party respondent by name in the writ application. He further submitted that the petitioner has lost her confidence in the District Election Officer, Munger because despite there being multiple complaints made by the petitioner with regard to the several occurrences which took place on different polling booths wherein a class of voters were not allowed to cast their vote, the District Election Officer did not take any action rather he reported to the Chief Election Officer, Bihar that the entire election was conducted peacefully. For this reason, the petitioner has drawn an inference that serious manipulations had occurred with the complicity of the local administration and despite widespread instances of booth capturing and rigging at various locations, no effective actions were taken. The petitioner suspected collusion between the administration and JDU candidate.

The Court observed that the statements made in the writ application are not very specific. There is no allegation of bias, personal malice against the District Election Officer. "Allegation of collusion between the administration and the JDU Candidate would be a disputed question of fact and this Court, at this stage, in absence of any clinching and irresistible material on the record would not take a view so as to direct respondent ro. 1 to remove the District  Election Officer of Munger Parliamentary Constituency from all administrative responsibilities. The prayer for removal of the District Magistrate/District Election Officer, Munger Parliamentary Constituency is, thus, refused."

The petitioner's counsel submitted that Rule 93 of the Conduct of Election Rules, 1961 is an open ended provision and a candidate has an independent right to get a copy of Form 17-C by depositing appropriate fee in terms of Rule 93 of the Rules of 1961. He also submitted that the agents of the petitioner at different polling booths of Munger Parliamentary Constituency have not been made available Form 17-C at the end of the election hour. He took the Court through Rule 49-S of the Rules of 1961 to submit that sub-rule (1) and sub-rule (2) of Rule 49-S are mandatory in nature and the Presiding Officer would be obliged to furnish to every polling agent at the close of the poll a true copy of the entries made in Form 17-C after obtaining a receipt from the said polling agent therefor and shall attest it as a true copy. It has been submitted that at some of the polling booths, Form 17-C were made available but in large number of the polling booths, the said Form 17-C were not handed over to the polling agents of the petitioner.  

The Court has recorded that the petitioner's counsel realized that he has not laid the foundation of facts in the writ application to demonstrate that at any point of time, either the polling agents of the concerned booth or the candidate had made any complaint to the District Election Officer regarding non-supply of Form 17-C at the end of the polling hour. He admitted at the Bar that there is no categorical statement in this regard and there is not even a statement to the effect that in which booth or at how many booths of the Munger Parliamentary Constituency the Form 17-C were not made available." 

He submitted that his main contention is based on an interpretation of Rule 93 of the Rules of 1961 because he is invoking his independent right to obtain Form 17-C which is available to him under Rule 93 of the Rules of 1961. At the fag end of his submissions that he submitted that he would be contented if the Court directs the District Election Officer to make available a copy of Form 17-C in accordance with Rule 93 of the Rules of 1961. 

It was submitted that the petitioner's claim with regard to non-supply of Form 17-C to the polling agents has no basis to stand. The polling came to an end on 13.05.2024 at 6:00 pm, neither on the said date nor thereafter till 26.05.2024 any complaint was made either by any polling agent or by the candidate saying Form 17-C was not made available to them. It was pointed out that on 27.05.2024, the petitioner, who is the candidate herself, submitted an application which is Annexure P-11 to the writ application in which she requested for making available copies of Form 17-C of all booths in terms of Rule 93 of the Rules of 1961. In this application submitted to the District Election Officer, Munger (Annexure P-11) she has not even whispered that Form 17-C were not made available to her polling agents. 

The Court was taken through Article 329(b) of the Constitution of India and it has been argued on the strength of the judgment of the Hon’ble Supreme Court in the case of Mohinder Singh Gill vs. Chief Election Commissioner, New Delhi and Ors. reported in (1978) 1 SCC 405 that Article 329(b) that there is a blanket ban of litigative challenges to the electoral steps being taken by the Election Commission and its officers. The submission is that in such circumstance the writ application is not entertainable when the counting of votes would be going to take place only tomorrow from 8:00 am.

It was further submitted that so far as the applicability of Rule 93 of the Rules of 1961 is concerned, that issue is not required to be gone into at this stage. It is submitted that Rule 93 does not envisage a situation like the present one where the EVM machine and all the relevant documents including Form 17-C are kept in the strong room which is under seal and is likely to be opened tomorrow only at the time of counting. At this stage, the District Magistrate, Munger who is the District Election Officer of the Parliamentary Constituency, Munger has also sought permission to mention that in fact when the strong room would be opened tomorrow and the counting will start, at that very time Form 17-C (Part 1 information) would be available and the representative of the candidate would be in a position to look into the same.

It is recorded in the order that when the petitioner's counsel understood the submissions made by the District Election Officer, Munger, he expressed his satisfaction and submitted that in such circumstance, for the present, this Court may not go into the issue of applicability of Rule 93 of the Rules of 1961 and it may be left open for academic discussions later on. In that view of the matter, no interim order is required to be passed by this Court as regards prayer no. (iii).

The Court concluded that so far as prayer no. (iii) is concerned, this has remained only significant for academic discussions and this Court may consider this issue at an appropriate time after the parties shall exchange their respective affidavits. It found that in view of what has finally transpired, no order is  required to be passed with regard to prayer no. (iv) and there is no gainsaying that the importance of free and fair election has always been taken as a backbone of the democracy and for the present, there is nothing on the record to take a view that the authorities concerned shall not conduct the election in free and fair manner.

Notably, at the outset, when this Court was moved as Civil Application and Motion Bench during vacation for notifying the matter, after hearing for a while about the subject matter of the writ application, Justice Prasad  informed the petitioner's counsel that his village falls within the Munger Lok Sabha Constituency, therefore, he would not like to hear the matter as it may be construed otherwise but Mr. Aljo K Joseph, the counsel for the petitioner insisted saying that the matter involves only question of law and there would be no conflict of interest, therefore, in view of the urgency, the matter be heard by this Court. In view of this submissions, the Court took up the matter for consideration for interim relief, if any, as it was also submitted that if it is not heard, it will become infructuous.

The counsel for the State as well as the Election Commission of India prayed that the matter be adjourned for twelve weeks to enable them to file their respective counter-affidavits on the issue of Rule 93 of the Rules of 1961.