Remanded

P.G.Shaji v. v.v.Muraleedharan

Kerala HC6 Sept 2012CRP/316/2012

Case brief

AI extract

What is this about?

The High Court quashed a lower appellate judgment in an election challenge involving double voting allegations, observing that the lower court failed to compare signatures with the naked eye as required by law, and remanded the matter for fresh consideration.

What did the court decide?

The judgment of the lower appellate court is set aside, and the matter is remanded for denovo consideration with directions to compare signatures in the presence of parties.

P.G.Shaji Vs v.v.Muraleedharan — Election Law | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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THURSDAY, THE 6TH DAY OF SEPTEMBER 2012/15TH BHADRA 1934

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CRP.No. 316 of 2012 ()

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AS.39/2012 of DISTRICT COURT,THRISSUR ELECTION OP.30/2010 of PRL.MUNSIFF COURT,THRISSUR

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REVISION PETITIONER(S)/APPELLANT/2ND RESPONDENT:

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P.G.SHAJI, AGED 41 YEARS

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S/O.PUTHANTHARAYIL VEETTIL GANGADHARN, CHEMBAMKANDOMDESOM,PUTHOOR VILLAGE,THRISSUR TALUK THRISSURDISTRICT.

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BY ADVS.SRI.T.A.SHAJI

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SMT.NAMITHA JYOTHISH

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RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 :

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V.V.MURALEEDHARAN, AGED 67 YEARS

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S/O.VASUDEVAN,VAYKKATTIL HOUSE,PUTHOOR DESOM

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MARATHAKKARA VILLAGE,THRISSUR TALUK

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THRISSUR DISTRICT-680001.

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K.MURALEEDHARAN,, AGED 47 YEARS S/O.MADHAVAN NAIR,KUNNAPPILLY HOUSE,PONNUKARA DESOM PUTHOOR VILLAGE,THRISSUR TALUK,THRISSUR DISTRICT PIN-680001.

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SAJEEV KADAMBATT,, AGED 29 YEARS S/O.UNNINAIR,KADAMBATT HOUSE,PUTHOOR DESOM PUTHOOR VILLAGE,THRISSUR TALUK,THRISSUR DISTRICT PIN-680001.

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BY ADV. SRI.N.M.MADHU

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V. CHITAMBARESH, J

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C.R.P. NO. 316 OF 2012

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Dated this the 6^th day of September, 2012

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ORDER

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There is a serious flaw in the judgment of the lower appellate court in as much as the alleged signatures of the seven voters found in the counter foils of ballot papers in both the constituencies have not been compared even with naked eye. The lower appellate court in paragraphs 23 to 29 of the judgment has merely stated that the trial court has compared the signatures found in the counter foils and held that seven voters have indulged in double voting. An appellate court is the final court of facts which is bound to compare the signatures in terms of Section 73 of the Indian Evidence Act and assess the evidence in the light of other circumstances.

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The instant case is one where the election is sought to be set aside on the ground of double voting with a specific pleading that PW4 to PW10 have voted in two constituencies. Section 76 (3) of the Kerala Panchayat Raj Act specifies that no person shall vote at a general election in more than one constituency of the same level. It further stipulates that the

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CRP No. 316/2012

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vote in all the constituencies shall be treated as void if a person votes in more than one constituency. The election under the circumstances would be liable to be declared as void in terms of Section 102 (1) (d) (iii) of the Kerala Panchayat Raj Act. The reception of any vote which is void amounts to improper reception exposing the election to the danger of being set aside.

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There is divergence of judicial opinion as to whether the court should take upon the task to compare the signatures with naked eye especially in matter of setting aside an election which upsets the mandate of the people. The decisions in O. Bharathan Vs. Sudhakaran and another [(1996) 2 SCC 704] and Neelalohithadasan Nadar Vs. George Mascrene [1994 (1) KLT 887] are apposite. But the Supreme Court in a later decision in I. Vikheshe Sema Vs. Hokishe Sema [(1996) 4 SCC 53] approved the power of the court to compare the signatures in order to decide the validity of the election. It was observed in paragraph 16 of the judgment as follows:

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“We depute the Registrar (Judicial) of this court to make an inspection after notice to and in the presence of the parties and their counsel,

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CRP No. 316/2012

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of all the said ballot papers, identify the void votes which had been cast in respect of poling station Nos. 56, 29 and 28 and to exclude the said void votes and then count the number of votes received by each of the five candidates. The report should be submitted to this court by the Deputy Registrar within eight weeks”

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4. The lower appellate court has abdicated its duty in not

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comparing the signatures of the seven voters found in the counter foils in both the constituencies before proceeding to appreciate the evidence. I have no option but to set aside the judgment of the lower appellate court for this purpose for a denovo consideration of the appeal on merits. The lower appellate court shall compare the signatures in the presence of the parties and their counsel with prior notice. The lower appellate court is also at liberty to forward the documents to an expert if it bonafide feels that a safe conclusion cannot be arrived at by comparison with a naked eye. The lower appellate court need forward the documents to an expert only it entertains a serious doubt about the similarity of the signatures found in the counter foils of these seven voters. The lower appellate court shall thereafter hear the parties on merits and dispose of

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CRP No. 316/2012

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the appeal afresh. I am not adverting to the other contentions raised by the parties lest it may prejudice their interest before the lower appellate court.

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The court of the District Judge of Thrissur is directed to dispose of A.S. No. 39/2012 on its file within a period of two months from the date of receipt of a copy of this judgment. The interim order dated 03.08.2012 passed while admitting the Civil Revision Petition would continue till the final verdict in the appeal as directed above.

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The Civil Revision Petition is disposed of. No costs.

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V. CHITAMBARESH JUDGE

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ncd

P.G.Shaji v. v.v.Muraleedharan

Case brief

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P.G.Shaji v. v.v.Muraleedharan

Case brief

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