“it is considered expedient to send the registers of voters
(Form 17A) which were already procured from the District Election Authority under sealed cover to the Director of Regional Forensic Science Laboratory (FSL), Police Training Centre, Banderdewa, Arunachal Pradesh requesting him to conduct scientific examination and verification of signatures/finger prints appearing in Form 17A and to ascertain as to whether the thumb impression and signatures contained and recorded in Form 17A (voters register) were put single handedly and fraudulently by few persons as a measure of impersonation of the genuine voters concerned and after such scientific examination/verification to submit report to the Registry of this Court is sealed cover within 3rd of May, 2012. The registry was directed to take steps accordingly. This order dated 19.3.2012 passed by the learned Judge was challenged by the appellant by filing Special Leave Petition 12707 of 2012, by pointing out that such an order could not be made in the teeth of the judgment and order rendered by this Court in Civil Appeal No. 1539 of 2012. However, the appellant, preferred to withdraw the SLP No. 12707 of 2012 subsequently, with a liberty to agitate the questions raised therein, if required, when the main Election Petition was decided.
22.The learned Judge proceeded to examine court witnesses including finger print expert, CW3. Thereafter, the court examined the defence witnesses, and after hearing the arguments of the counsel for both the parties allowed the Election Petition, and held that the election of the petitioner was void. On the basis of the calculations of votes made by the learned judge, he held that the first respondent had received more votes, and therefore, declared him as elected from the constituency concerned. It is this order which is under challenge. 23. Now, as can be seen from the narration above, the Election Petition was filed only on the ground of booth capturing. The respondent No. 1 himself accepted that he could not name any person involved in the act of booth capturing. The evidence on record clearly showed that, apart from some allegations, there was no material evidence placed in support thereof. The petitioner tried to claim impersonation and double voting as a facet of booth capturing. This submission was already rejected by this Court while deciding C.A No. 1539 of 2012 (supra) by holding that impersonation and double voting would amount to deception and it will be a facet of improper reception of votes and not booth capturing. Booth capturing involves use of force and that was not established. The petition was not filed on the ground of improper reception of votes. Even if that ground was to be looked into, the respondent No. 1 accepted in his evidence that he had no direct evidence regarding casting of votes by impersonation.
24.The learned judge has clearly transgressed the limits of his jurisdiction, by going into the exercise of calling for the handwriting and finger print experts, and comparing the voters’ signatures and finger prints with the help of the records in Form 17A, when that was clearly held to be impermissible in the present case itself. This is apart from the fact that this has resulted into a waste of the time of the Court, which is so precious. The evidence was recorded on a number of dates and so many witnesses, including public officers, were called when their evidence was not required. It would be relevant to refer to the observations of this JUDGMENT Court in paragraph 12 of Azar Hussain v. Rajiv Gandhi reported in AIR 1986 SC 1253 in the context of rejecting an election petition summarily, at the threshold, where such a case is not made out. The observations are to the following effect,
“12. Learned counsel for the petitioner has next argued that
in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. ………..”
(emphasis supplied)
25.The judge clearly ignored that the law declared by this Court is binding on all courts within the territory of India under Article 141 of the Constitution of India, and judicial discipline required him to follow the mandate of the Constitution. He entered into an impermissible exercise, and deleted the votes received by the appellant which he considered to be tainted votes. It is quite shocking to see that the learned judge has proceeded to delete the votes of the appellant from 8 polling stations, although the grievance was only about Ruhi and Roing polling stations. By making these deductions, he came to the conclusion that the respondent No. 1 had received 826 votes more. As can be seen from JUDGMENT paragraph 28 of the judgment, rendered in Civil Appeal No. 1539 of 2012, that at best the case of the first respondent was that there were double entries of voters in 1304 names. The allegation was only with respect to two polling stations. In those polling stations, the appellant had received 1873 votes. Even if these 1304 votes were to be deleted, it would not affect the result materially since the appellant had won with a margin of 2713 votes. The learned judge, therefore, ignored that even if the ground of improper reception of votes under section 100(1)(d)(iii) was to be taken, the respondent no.1 had failed to establish that the result of the election of the appellant had been materially affected by such improper reception of votes. The decision of the learned judge was therefore clearly flawed and untenable.
26.Thus, the learned judge went into the counterfoils of the voters inspite of the fact that this court had already ruled in the judgment in C.A. 1539 of 2010, that in the facts of the present case, no case was made out for calling of the counterfoils. It is not that he was unaware of the judgment rendered by this court. He referred to this judgment in Para 9(i) by stating that CA No. 1539 of 2010 was preferred against his judgment and order dated 14.9.2010. Thereafter, he specifically noted “the said Civil Appeal was allowed vide judgment and order dt. 2.2.2012 dismissing the aforesaid M.C. (EP) No. 5 (AP) of 2010 under Section 83(1) of the R.P. Act as reported in (2012) 3 SCC 236.” Thereafter, however he proceeded to act exactly contrary to the direction emanating from the dismissal of M.C. (EP) No. 5 (AP) of 2010, which amounts to nothing but JUDGMENT judicial indiscipline and disregard to the mandate of Article 141 of the Constitution of India. This is shocking, to say the least, and most unbecoming of a judge holding a high position such as that of a High Court Judge. We fail to see as to what made the judge act in such a manner, though we refrain from going into that aspect.
27.Before we conclude, we may state that it is unfortunate that such acts of judicial impropriety are repeated inspite of clear judgments of this court on the significance of Article 141 of the Constitution. Thus, in a judgment by a bench of three judges in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and Anr., reported in (1997) 6 SCC 450, this court observed,
“32. When a position, in law, is well settled as a result of
judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.” We may as well refer to Para 28 of the State of West Bengal & Ors. v. Shivanand Pathak and Ors., reported in (1998) 5 SCC 513, wherein this court observed,
“If a judgment is overruled by the higher court, the judicial
discipline requires that the judge whose judgment is overruled must submit to the judgment. He cannot, in the same proceedings or in collateral proceedings between the same parties, rewrite the overruled judgment…”JUDGMENT
28.In the circumstances, we have no option but to allow this appeal and set aside the impugned judgment and order rendered by the learned judge of Gauhati High Court dated 12.11.2012. The Election Petition filed by the respondent no. 1, bearing Election Petition No. 1(AP) of 2009, renumbered as Election Petition No. 1 (AP) of 2012, shall stand dismissed. The parties will bear their own costs.
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( G.S. Singhvi ) .J.
( H.L. Gokhale ) New Delhi Dated: May 10, 2013