Patna High CourtBijay Kumar Singh vs Sumit Kumar Singh on 24 June, 2015Author:Navaniti Prasad SinghBench:Navaniti Prasad SinghIN THE HIGH COURT OF JUDICATURE AT PATNA

                      Election Petition No.1 of 2010
======================================================
Bijay Kumar Singh, son of Sri Mohan Singh, resident of village - Nawadah,
Silfari, P.O. - Madhopur, P.S. - Chandra Mandi, District - Jamui.

                                                            ..........Petitioner
                                     Versus
Sumit Kumar Singh, son of Sri Narendra Singh, resident of village and P.O.
- Pakari, P.S. - Khaira, District - Jamui.
                                                      .... .... Respondent
======================================================
Appearance :
For the Petitioner       :      Mr. S.B.K.Mangalam, Advocate

For the Respondent :  Mr. Prabhat Kumar Verma, Sr. Advocate
======================================================
  CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH
                          C.A.V. JUDGMENT
Date: 24-06-2015

                 By this Election Petition, the election petitioner Sri Bijay

      Kumar Singh has challenged the election of Sri Sumit Kumar Singh,

      the sole-respondent who has been declared elected as a member of

      15th Bihar Legislative Assembly from 243, Chakai General

      Assembly Constituency in the district of Jamui for which elections

      were held on 01.11.2010.

                 2. At elections, after scrutiny, 12 candidates were found

      validly nominated to contest the elections which list was published

      by the Returning Officer on 18.10.2010. The elections were held on

      01.11.2010at 286 Booths. On 24.11.2010, counting was done and

      result declared. The election petitioner who was the official
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015-2-candidate of Lok Jan Shakti Party secured 21,618 votes and came

      second. The sole contesting respondent Sri Sumit Kumar Singh who

      was the official candidate of Jharkhand Mukti Morcha secured

      21,806 votes, and was accordingly declared the winner by a margin

      of only 188 votes. The third was Sri Falguni Prasad Yadav the

      official candidate of Bhartiya Janta Party who secured 20,259 votes,

      the difference being 1,547 votes from the winning candidate. The

      rest of candidates including the Congress candidate could not cross

      four figures total.3.    As would be seen from the above, the winning

      margin was a narrow 188 votes giving cause to the election

      petitioner to raise all pleas that could be available to impeach the

      elections, but fortunately, there has been no allegation leveled with

      regard to any corrupt practices. At the very outset, it may be noticed

      that as the returned candidate i.e. the sole-respondent Sri Sumit

      Kumar Singh happened to be the son of a sitting minister of the

      coalition government of Janta Dal United and Bhartiya Janta Party, a

      feeble suggestion was made by the election petitioner that the

      official involved in the elections were more favourably disposed to

      the returned candidate. Rightly this was not pursued by the election

      petitioner seriously in any respect.4. The election petition was filed on 07.12.2010. By
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015-3-order dated 20.01.2011 notices were directed to be issued to the sole

      contesting respondent through two processes firstly directly to the

      contesting respondent and then court made a request to the Secretary

      of Bihar Legislative Assembly to serve a copy of the election

      petition on the sole respondent as he had been elected a Member of

      the Legislative Assembly, but regrettably the Secretary of the

      Legislative Assembly returned the same without service pointing out

      to the court that the Secretary of the Legislative Assembly could not

      be made to act as an agent of the court nor was its job to serve notice

      on its members forgetting that this court had only requested the

      cooperation to expedite the matter of appearance. Ultimately when

      all other modes to serve notice on the elected Member could not

      fructify, by order dated 25.03.2011, court directed to publish notices

      for substituted service through newspapers and it is only thereafter

      that the sole respondent appeared through Sri Prabhat Kumar Verma,

      learned Senior Counsel. Upon written statement being filed learned

      counsels agreed and eight issues were framed by order dated

      15.07.2011 which are as under: -(i)       Whether the election petition itself is
                                liable to be dismissed in view ofSection
                                86of the Representation of People Act,
                                1951 inasmuch as two copies of the
                                election petition have not been submitted
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015-4-along with the election petition and
                                served to the respondent as required
                                underSection 81of the said Act ?(ii)      Whether election petition is liable to be
                                dismissed for not setting forth full
                                particulars        supported   by verification
                                under the forms (statutorily prescribed in
                                relation to allegation) with respect to
                                allegation of corrupt practices even
                                though there is no such issue?(iii)     Whether the election petition discloses
                                any cause of action and, in absence
                                thereof, is liable to be dismissed in view
                                ofSection 83read withSection 87and/or
                                Order VI Rule 16 orOrder VII Rule 11 of
                                the Code of Civil Procedure?(iv)      Whether there was absence of Polling
                                Officials or Polling Officers at Booth Nos.99, 100, 135 & 196 in the constituency
                                concerned at the relevant time deprived
                                voters of their right to vote and, thus,
                                materially affected the election and
                                results of election, especially when the
                                winning margin was only about 188
                                votes?(v)       Whether recovery of Electronic VotingMachines of booth Nos. 62, 63, 64 & 65from a private unauthorized premises is
                                material fact of irregularity affecting the
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015-5-election?(vi)      Whether the counting of votes in respect
                                of Booth No. 33 was legal or not in
                                accordance with law. If it was not in
                                accordance with law still that materially
                                affect the result of election of the sole-respondent?(vii)     Whether            there   has   irregularities
                                committed during counting of votes which
                                has materially affected the result of
                                election?(viii)    Whether the election petition is not
                                maintainable in absence of necessary
                                parties. In other words, it must fail for
                                non-joinder of parties?5. Due to typographical mistake in regards issue no. (iv)

      instead of booth No. 136 booth No. 196 was typed and later ordered

      to be corrected. Out of the issues so framed issue no. 1, 2, 3 & 8 are

      at the instance of the contesting respondent in aid of dismissal of the

      election petition, whereas, issue nos. 4, 5, 6 & 7 are material for

      election petitioner's case and setting aside the election.6. First, I would like to deal with issue no. 5 with regard

      to alleged recovery of electronic voting machines of booth nos. 62 to

      65 from a private unauthorized premises. On behalf of election

      petitioner, initially, various evidences were led, both documentary
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015-6-and oral, to show how, when the EVMs were being transported after

      voting, to the election centres at Jamui, the Polling Officers of the

      said booths had deviated from the route and were found in a private

      residence with the EVMs. It was sought to be argued that having

      been recovered from unauthorized premises after the polls, but,

      before collection of EVMs and counting thereof, it should be taken a

      material irregularity affecting the elections and the votes polled

      should either be discarded or fresh polling be ordered. But when

      confronted with the proceedings of the review meeting Ext. R/3, Ext.

      R/3/1 & Ext. R/3/2, where note was taken of these four EVMs and

      that there had been no complaints or protests at that time by the

      election petitioner. Sri S.B.K. Mangalam, learned counsel for the

      election petitioner, conceded that he would not seek court's finding

      on this issue and, as such, would not press the issue for adjudication.7. In fairness to Sri Mangalam, it must be noted that the

      Polling Officers had given an explanation that they had been

      travelling in an open tractor trolley and it had been drizzling and, as

      such, when they reached Jamui, near the election centre, there being

      a long line of vehicles waiting to deposit the EVMs, they got down

      from the tractor trailer and went to one of the polling officer's

      residence nearby to dry and change. The district authorities found

      them there, but upon close scrutiny of the EVMs, they were not
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015-7-found tampered in any manner. It is because of this reason that the

      election petitioner did not raise any grievance at the review meeting

      or after the counting of votes in this regards.8. In view of the aforesaid, this court does not decide the

      said issue which is dismissed as not pressed.9. Regarding issue no. 1 as raised by the sole contesting

      respondent, it may be noticed that the grievance of the respondent is

      that the copies of the election petition as served did bear the

      signature or attestation of the election petitioner and, as such, in

      terms ofSection 81(3)of the Representation of People Act, 1951,

      the election petition should be dismissed in terms ofSection 86thereof.10.     Suffice to say that the election petition is not

      defective in any manner. It has the signature in original of the

      election petitioner and is duly verified and annexures attested, but it

      appears that copies that are meant to be served on the contesting

      respondent being singular in the present case, they were true

      photocopies of the election petition itself. If any, it is a hyper-

      technicality and a mere irregularity. It would not vitiate the

      proceedings leading to dismissal of the election petition itself. The

      issue is thus decided against the respondent and in favour of the

      election petitioner.Patna High Court E.P. No.1 of 2010 dt.24-06-2015-8-11. With regard to issue no. 2 that the election petition

      should be dismissed as it does not set forth full particulars supported

      by verification in respect of allegation of corrupt practices. Again

      suffice to say as noticed in the issue itself, the election petitioner is

      not made corrupt practice as a ground for invalidating the election of

      the returned candidate i.e. sole contesting respondent. Thus, if there

      is no such issue of corrupt practice being raised for adjudication

      and/or decision, the mandatory requirement of setting forth

      particulars supported by verification in this regard is not required

      and the election petition cannot be dismissed on this ground. It

      would have been a totally different matter if making an issue of

      corrupt practice, the pleadings are not in accordance with the

      mandatory provisions in this regards. In such an event, there being

      no pleadings of which cognizance could be taken by the court in

      relation to corrupt practice the election petition could have been

      dismissed but that is not the case. Accordingly, this issue is decided

      in favour of the election petitioner as against the contesting

      respondent.12. Regarding issue no. 3 that the election petition does

      not disclose any cause of action and in absence thereof in view ofSection 83read withSection 87of the Act as also Order VI Rule 16

      orOrder VII Rule 9 of Code of Civil Procedure, the election petition
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015-9-ought to be dismissed. This issue has been raised by the respondent

      to scuttle the proceedings. Having gone through the election petition,

      there is sufficient pleadings and material facts to give cause of action

      to election petitioner to pursue the matter. This is not the stage

      where the evidence has to be seen, because, it is well established that

      it is only material facts that have to be stated and not all evidence in

      support thereof in the election petition. Facts in this regard to sudden

      change of polling booths without intimation, non-arrival of polling

      staff in polling booth in time, recovery of EVMs from unauthorized

      premises have been clearly pleaded. It is another matter whether it

      can be substantiated by evidence, but that is a matter of trial and not

      of pleading. This court finds that there are sufficient facts which are

      material facts which have been pleaded and on that count the

      election petition cannot be dismissed summarily without going

      through the evidence which is brought on record in course of trial.

      The issue is, thus, decided against the respondent and in favour of

      the election petitioner.13. Issue no. 8 is with regard to absence of necessary

      parties. In fairness to Sri Prabhat Kumar Verma, learned Senior

      Counsel for the respondent, he could not show as to which necessary

      party was omitted to be made a party to the election petition as it

      was the election of the returned candidate that was challenged. It
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 10 -was not challenged on the ground of corrupt practices. The official

      witnesses cannot be said to be necessary parties muchless witnesses

      who had conducted the election process. Necessary parties are those

      in whose absence the election petition itself becomes not

      maintainable.Section 82of the Act provides for the parties who

      shall be joined as respondent to the election petition. This court finds

      nothing in the aforesaid provision which obliged the election

      petitioner to make anyone else as a party to the election petition in

      view of relief sought for and, thus, this issue also decided against the

      respondent and in favour of the election petitioner.14. That leaves us with issue nos. 4, 6 and 7. Regarding

      issue nos. 6 & 7, they are inter-connected in the sense it relates to the

      EVM appertaining to booth no. 33 and what happened at the time of

      counting of votes on 24.11.2010.15. The election petitioner has pleaded in the election

      petition that when the EVM of booth no. 33 was brought on the

      counting table it was found that one of the paper seals was tampered,

      when the EVM cover was opened it was found that the EVM

      machine was on and had not been switched off and the battery had

      exhausted and the machine was not in a position to display the votes

      (paragraph 36 of the election petition). The Returning Officer then

      sent for mechanic of the company who came with technical support.
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 11 -He operated the machine to give the readings (paragraph nos. 39 &

      40 of the election petition). The recording showed only three votes

      in favour of petitioner, whereas 394 votes were shown in favour of

      the contesting respondent. The margin of votes of the victim being

      188 votes. This was a material irregularity in counting of votes. This

      machine ought not to have been taken into account.16. On behalf of the sole contesting respondent, it is

      submitted that there is no pleading of any specific irregularity which

      could vitiate the counting in respect of this booth. It is submitted that

      the election petitioner is only trying to draw adverse inference which

      is not sufficient.17. Sri Subir Rajan, Returning Officer for the elections

      has been examined as RW 14 (OW 14). In his deposition, he has

      admitted that when the EVM was brought for counting it did not

      display the votes. He admits that he had called the technician to

      connect the EVM with another device and then it reflected the

      number of votes. He was questioned as to what was the device he

      replied that he was not knowing not being a technical man.18. If we see the pleading in the election petition, the

      evidence of Returning Officer who is also the Presiding Officer, it

      would be abundantly clear that everyone was aware that by mistake

      the EVM was left on while sealing the same. The internal seal of the
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 12 -EVM was not found tampered. It is only some paper seal of the

      cover of the EVM that was alleged to be tampered. If the machine is

      left on, then taking into consideration the fact that the voting was

      done on 01.11.2010 and counting was done on 24.11.2010, there

      cannot be any doubt that the battery would have drained out. This is

      admitted in the election petition itself. All that the technician did

      upon being called, was he connected the EVM to a fresh battery

      pack and accordingly read the result contained therein. How can this

      be termed as any material irregularity in counting affecting the

      polls? What is the material irregularity is neither pleaded nor proved.

      It may further be noted that there was no written complaint made or

      protest registered immediately at the time of counting by the election

      petitioner in this regards.19. In view of the aforesaid facts, it has to be held that

      it does not stand established that the counting of votes in respect of

      booth no. 33 was wrong, illegal or not in accordance with law and

      the votes polled in said booth cannot be discarded for any reason.

      The issue is thus decided against the election petitioner and in favour

      of the respondent. These two issues are decided accordingly.20. That leaves us with issue no. 4, in relation to which,

      there has been substantial contest. Both the parties have agreed that

      issue no. 4 as originally framed needs to be reframed for clarity.
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 13 -With consent of the parties, the issue was reframed to bring out the

      real dispute in question for adjudication as under :"Whether the results of election in respect of polling
                      booth nos. 96, 97, 100 and 136 were materially
                      effected vitiating the election results because of the
                      change of polling booth denying the right of voters to
                      cast their votes."21. Election petitioner's submission is that number of

      voters who were covered by the aforesaid four booths were about

      4500 and the winning margin was only 188. Because of the sudden

      last minute change in the location of booths which was contrary to

      the mandatory instructions of the Election Commission of India, the

      voters were caught unaware and there was nil voting. Had there been

      free and fair elections and voters permitted to cast their votes, as

      they were entitled to, the results would have material changed.22. Sri Verma, learned Senior Counsel for the contesting

      respondent submitted that it was factually wrong to state and it was

      not supported by evidence that the booths were changed without

      notice to anybody. To the contrary, booths were changed in

      consultation with the candidates and with full knowledge of the

      candidates and it had the approval of the Election Commission of

      India. Nil voting was because of the booths being hyper sensitive
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 14 -and there was serious threat from the extremist. He further submitted

      that merely because there was nil voting no inference can be drawn,

      as to how the votes could have been polled, if they were polled.

      There is no evidence on record to show that the voting would have

      gone in favour of the election petitioner. It is established that votes

      are scattered and there is no material to predict or show as to how

      many people would have voted and in what manner they would have

      voted.23. In order to appreciate the contention on behalf the

      election petitioner, it would be first necessary to refer to certain

      provisions of the Handbook of Returning Officer as issued by the

      Election      Commission of India (hereinafter referred to as

      "Commission"). This contains the entire guideline as laid down by

      the Commission with regard to conduct of election which virtually

      covered every aspect of the entire process and lays down the

      procedures to be followed.24. Chapter 2 of the handbook deals with polling station

      and has reference toSection 25of the Representation of People Act,

      1951 (hereinafter referred to as the "Act"). Clause 1 of this chapter

      clearly inter alia provides that once the list of polling stations are

      published by the approval of the Commission and the same is

      proposed to be adopted, no fresh approval of the Commission is
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 15 -necessary and if any modification are proposed, the Commission's

      approval be obtained well in advance at least two weeks before the

      last date for the withdrawal of candidature. It is not in dispute that

      the list of polling booths was duly published on 15.10.2010, whereas

      last date for withdrawal of candidature was 18.10.2010.25. The next relevant part of the handbook is Clause 7.1

      of this chapter which provides that once the list of polling stations is

      duly notified that would be the list of polling stations for that

      Constituency. Clause 7.2 thereafter provides that District Election

      Officer can correct only printing or clerical mistakes, if any, after

      such publication. Clause 9 deals with modification in the list. The

      important Clauses would be Clauses 9.3, 9.4 and 9.5 which are

      quoted hereunder:9.3     Once the lists are approved, requests
                                  from political parties and individuals for
                                  shifting of the polling stations from one
                                  village to another or from one site to
                                  another should be considered, only in
                                  extremely exceptional cases where there
                                  are overriding considerations of public
                                  convenience for the change proposed. If
                                  the district Election Officer/Returning
                                  Officer is satisfied, he should consult
                                  other political parties and contesting
                                  candidates and then only make his
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 16 -recommendations to the Commission in
                                  the matter.9.4   District Election Officer should, on no
                                  account, make any change in the location
                                  of polling stations already approved by
                                  the     Commission,     without    its   prior
                                  approval, as any change may ultimately
                                  result in the election being declared void.9.5   Where changes become inevitable and
                                  have to be made, such changes should be
                                  referred to the Commission for its
                                  previous approval. The changes should be
                                  fully     publicized   and   all   contesting
                                  candidates and political parties, etc.,
                                  informed in writing.26. These provisions must be read withSection 62of

      the Representation of People Act, 1951 which gives a statutory right

      to vote to every voters who is in the voters list. It is as a consequence

      of this right which is exercised by the voters in a free and fair

      manner that the true election results are to be declared.27.     From the reading of the aforesaid provisions as

      made in the Handbook by the Commission, it is apparent that what is

      contemplated is that the list of polling stations must be finalized at

      least two weeks before the last date of withdrawal, thereafter, only

      printing and clerical mistakes can be corrected. If there is an urgent

      need of modification, then it can only be done with the prior
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 17 -approval of the Commission and due intimation has to be given to

      the persons concerned.28.     Now, let us examine the evidence which is

      documentary and oral in regards this issue.29. First, the documentary evidence - the 15th Bihar

      Legislative Assembly Elections having been announced, it appears

      that a wireless message was sent on 02.10.2010 by the District

      Election Officer cum Collector, Jamui, to various Assistant Election

      Officers and others seeking views with regard to change or re-

      location of polling station. This has been referred to in the reports

      which were filed thereafter which are Exhibits - R7 and R7/1, both

      being dated 04.10.2010, the letters from Chakai Sub-division and

      Sono Sub-division to the District Election Officer. In the said two

      documents, there were recommendations for shifting certain booths

      including booth no. 92, 96, 97, 99, 100, 115, 132 and 136 and the

      reasons for this was that these booths were located in extremists

      affected areas within dense forest where election personnel's safety

      would be compromised. Then we have Exhibit - 26, the letter dated

      13.10.2010 of the Superintendent of Police, Jamui, to the Collection,

      Jamui, who happens to be the D.E.O. as well, giving the list of

      booths which required to be changed in view of the difficulty of the

      election personnels in extremist areas. The booths as recommended
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 18 -earlier for change are also included in this list. We then have the list

      of booths for the Constituency as was finally published on

      15.10.2010. 18.10.2010 was the last date for withdrawal of the

      candidature with date of poll on 01.11.2010. It appears that

      thereafter the District Election Officer cum Collector, Jamui, called

      a meeting on 21.10.2010 of all the candidates of political parties for

      discussion with regard to change of location of some polling booths.

      The election petitioner undisputedly attended the said meeting as

      well. This would be evident from Exhibit - R8/1 and R 8. This also

      incorporates the decision taken in the said meeting which is then

      recorded on 22.10.2010. On 22.10.2010, the District Election Officer

      vide Exhibit - R9 which is the same as Exhibit - 15, makes his

      recommendation to the Chief Election Officer, Bihar with regard to

      changes of booths. This was then immediately published as reports

      in the local Newspapers which is Exhibit - O & P. The next

      document is letter dated 26.10.2010 of the Election Commission of

      India (Exhibit - R 23) to the Chief Election Officer, Bihar,

      according approval to the proposed changes in the location of the

      polling booths and this letter is dated 27.10.2010 forwarded to the

      District Election Officer, Jamui, by Chief Electoral Officer, Bihar.

      We then have Exhibit - 32, the press notification in newspapers

      dated 30.10.2010, notifying the change of 10 locations of booths in
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 19 -respect of Chakai Constituency.30. Thus, from the aforesaid sequence of documentary

      evidence brought on record, it would be seen that though various

      objections called for by the District Election Officer on 02.10.2010

      with regard to change of polling booths and responses were received

      on 04.10.2010. Whereafter on 15.10.2010, the final publication of

      polling booths was made which was three days prior to the last date

      of withdrawal of nomination which was 18.10.2010. Yet, on

      21.10.2010, a fresh meeting was called for and decisions taken

      therein to shift certain booths in which not only election petitioner

      but his local party president was also present apart from other

      candidates and political parties. This decision taken was on

      22.10.2010 sent to the State Election Officer for approval. The

      approval from the Election Commission of India received on

      26.10.2010 and transmitted to Jamui on 27.10.2010. This were also

      published in the Newspapers on 22.10.2010 and subsequently the

      official communication was also issued on 30.10.2010. Accordingly,

      voting was held on 01.11.2010, where as noted above, in about five

      booths there were no voting at all. The election petitioner contends

      that this was primarily because of sudden change of location of

      polling stations without information to the voters. But, the stand of

      the respondent is that the change was known to everybody, but,
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 20 -because of the disturbed areas and extremist warnings people did not

      vote. Thus, there is no cause for re-polling on these booths.31. Second, the oral evidence - Now, when we come to

      oral evidence. One has to keep in mind that we are dealing with a

      election dispute. The parties and witnesses are committed voters

      having allegiance to one or the other political party, therefore, it is

      not safe to blindly rely upon the said evidence, because, it is likely to

      be prejudiced. Both the sides have brought in evidence who are

      voters in respect of the said booths. Election petitioner's witnesses

      state that they had no information about change of booth when they

      went to the booth they found no one there, they waited and returned.

      On the next date they came to know that the location of booth had

      changed. Authorities did not take any step to publicize the change of

      location in the locality which are to be affected. On the other hand,

      the witnesses on behalf of sole respondent being equally committed

      voters have said that when they went to vote on the new polling

      stations they found large number of people waiting there but out of

      fear of extremist they could not gather courage to vote. Had it been

      peaceful time they would have voted.32. The oral evidence that is available on this issue may

      now be noted. First, the District Election Officer-cum-District

      Magistrate, Jamui, Sri Bipin Kumar, who was examined as RW-17,
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 21 -has clearly stated that he had received a recommendation for change

      of location of about ten booths in relation to this election and at his

      instance meeting of all political parties was called for on 21.10.2010,

      and the proceedings were recorded as Ext. R/8. He then sent the

      recommendation by his letter dated 22.10.2010 to the State Election

      Officer as Ext. R/9 which was duly approved by the Election

      Commission of India. He received the approval on 27.10.2010,

      which changes were then notified in the Newspapers. In the cross-

      examination, he admitted that he was aware of the instructions

      contained in the handbook issued in regard to change of location of

      polling booth as prescribed by the Election Commission of India.33.      Election petitioner examined seven witnesses on

      this issue. They are voters of booth nos. 96 and 99 only and the

      election petitioner himself. P.W.1, namely, Md. Nazam Ansari,

      being voter of booth no. 96, has deposed that he went to the polling

      station did not find any arrangement there. There were large number

      of voters who were there, he returned, and on the next day, he came

      to know that the booth had been changed denying him right to vote.

      If he had known the new location earlier he would have gone and

      cast his vote. Similar is the evidence of P.W.2, P.W.3, P.W.4, P.W.5

      and P.W.6. P.W.4 admits in cross-examination that their area was

      Naxal affected area. P.W.7 is the election petitioner himself. On this
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 22 -issue, he admits that at booth no. 97 only eleven votes were cast, but,

      he asserted that it was not by the voters but by the polling staff

      themselves. He does not disclose as to how he got this information.

      He states that in the six polling booths, in respect of this issue, there

      were 4472 voters who were his supporters and they had been

      deprived of right of voting because of the change of location of

      booth. In his cross-examination, he states that the change of location

      of booths, as made by the District Administration, was not informed

      to him nor was it communicated to the people of the locality

      concerned. He has stated that he had visited booth nos. 96, 97, 99,

      100 several times including the date of election.34.     Now, we come to the evidence on behalf of sole

      contesting respondent. Twelve witnesses have been examined on

      behalf of the respondent, who were voters of different booths under

      consideration. They have admitted that though there was no official

      communication about change of location of booths they were aware

      of the change but because of Maoist/Naxal threat, though they had

      gone to the new booth they did not cast their vote out of fear. They

      have admitted that if the elections were conducted in a peaceful

      atmosphere they would have voted.35.     I may note that RW-7, namely, Md. Abbas Ansari,

      who was voter in respect of booth no. 136, has categorically stated
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 23 -that his villages are highly affected by Maoist activities and the

      villages are not connected by motorable road. He has been Mukhiya

      of the Gram Panchayat since 2006, and if, the elections were held in

      a fearless atmosphere he would have voted. He states that polling

      staff was there but none of the villagers cast their vote and they

      returned.36.    Sri S.B.K. Mangalam in support of the election

      petitioner submits elaborating his points that the directions issued by

      the Commission in the shape of the Handbook laying down

      procedures are mandatorily to be complied with. They are to ensure

      free and fair elections and infraction thereof must lead to invalidity

      of polling/voting          calling for re-poll. His submission, thereafter,

      would be that the mandatory guidelines as contained in the

      handbook,         relevant      parts        whereof   quoted   above,   clearly

      contemplates that changes or modification in the locations of polling

      booths should be made two weeks before the last date of withdrawal

      of candidature and that too with prior approval of the Commission.

      He has referred extensively to the case ofMohinder Singh Gill and

      Anr. Vs. Chief Election Commissionersince reported in AIR 1978

      SC 851 = 1978 (1) SCC 504; to show that directions are mandatory

      and binding on the authorities and have to be scrupulously followed.37. With reference to documentary evidence he would
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 24 -plead that before finalizing the polling stations, the District Election

      Officer cum District Magistrate cum Collector, Jamui, itself sent out

      wireless messages on 02.10.2010 to the authorities seeking their

      views in the matter. Responses were received from Chakai Sub-

      Division and Sono Sub-Division Ext. R/7 and Ext. R 7/1 being dated

      04.10.2010 as also from the Superintendent of Police, Jamui (Exhibit- 26 dated 13.10.2010). But, on 15.10.2010, the final list of booths

      was published without incorporating those changes. This was three

      days before the last date for withdrawal of candidature. Once, the

      final list of candidates was published then on 21.10.2010, after final

      publication of list, as noted above, a meeting was called and then on

      22.10.2010, recommendations were made for change of location of

      booths which was ultimately approved by the Commission on

      26.10.2010. The official Newspaper publication whereof was made

      on 30.10.2010 whereas elections were to be held on 01.11.2010.

      This was in complete breach of provisions of the Handbook. That

      apart, with reference to the recommendations that were received by

      the District Election Officer, he would argue that the consideration

      for change was not for the benefit of the voters but only for the

      protection of the electoral officers on duty. He would argue that if it

      was not safe for the electoral officer to reach the villages then how

      can it be assumed that it was safe for the villagers to leave their
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 25 -village and their original booths and travel to another village miles

      away to cast their vote. This consideration for change was bad. Then

      the changes were affected too late in the day and no official visited

      the village to inform about the changes. He, thus, would submit that

      the polling on the aforesaid changed booths which recorded nil

      voting with exception of 11 votes in booth no. 97 require re-polling.

      This exercise was designed to prejudice the election petitioner who

      had large support in those areas. This takes greater importance when

      the winning margin was only 188 of the total number of voters in

      this changed booth involved were about 4500. According to him,

      this did not reflect the true Will of the voters.38.    On the other hand, Sri P.K. Verma, learned senior

      counsel appearing for the returned candidate being sole respondent

      submitted that the documentary evidence would clearly show that

      not only the election petitioner participate in the meeting dated

      21.10.2010 which considered the change of location of booths but he

      never protested. He was fully aware of the changes. The changes

      were reported by the press immediately after the meeting. Approval

      of the Commission having been received, it was also officially

      notified in the press, thus, it was for the election petitioner to ensure

      that his voters were accordingly informed and there was time

      enough. The true reason for nil voting was not shifting of booths but
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 26 -of fear of extremist who had called for boycott of elections and

      threatened voters.39.In the beginning, I would refer to the judgment of

      the Apex Court in the case ofThakur Sen Negi Vs. Dev Raj Negisince reported in AIR 1994 SC 2526 wherein in paragraph - 3 this is

      what their Lordships have said which read as such:"It must be remembered that in an election
                      dispute, the evidence is ordinarily of partisan
                      witnesses and rarely of independent witnesses
                      and, therefore, the court must be slow in
                      accepting oral evidence unless it is corroborated
                      by reliable and dependable material. It must be
                      remembered that the decision of the ballot must
                      not be lightly interfered with at the behest of a
                      defeated candidate unless the challenge is on
                      substantial ground supported by responsible and
                      dependable evidence."40.       Then, I must noted thatSection 100of the

      Representation of People Act, 1951 is complete in itself with regard

      to grounds of challenge.Section 100(1)provides ground on which

      the election of returned candidate can be held to be void, nothing can

      be inferred nor anything can be omitted. If we refer to the aforesaid

      so far as the facts of the present case is concerned, the case could

      only come underSection 100(1)(d)of the Act. But, before invoking
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 27 -the same, it must be shown that the results of the election has been

      materially affected as has been held in the case ofChhedi Ram Vs.

      Jhilmit Ramsince reported in AIR 1984 SC 146; that it is by facts

      that has to be shown, in fact, if elections were held, the results would

      be materially different. A mere probability would be speculative and

      not a reliable test. This is relevant because what is said by election

      petitioner is that if the voting had taken place he would have secured

      more votes on those booths where there was nil voting but because

      of sudden change of location.41.      We must keep in mind that out of the entire

      electorate, it is not that everybody would vote. Then even, if they

      vote, at the time of casting their vote, there are different

      considerations. There is no hard and fast rule as to who would vote

      for whom. The votes get scattered and who would get how many

      votes is then purely speculative.In this connection, I may also refer

      to recent judgment of the Apex Court in the case ofKalyan Kumar

      Gogoi Vs. Ashutosh Agnihotri and Anr.since reported in (2011) 2

      SCC 532; wherein it was alleged that about 200 to 300 voters could

      not cast their vote because of shifting of the polling booth and thus

      materially affected the election. This was negative as there was no

      proof of facts as to how it materially affected the elections. The

      Apex Court upheld the decision of the High Court dismissing the
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 28 -petition challenging the election.42. I may then refer to another recent decision of the

      Apex Court in the case ofMangani Lal Mandal Vs. Bishnu Deo

      Bhandarisince reported in (2012) 3 SCC 314; wherein the Apex

      Court in paragraph 11 of the reports clearly was of the opinion that

      merely because there was non-observance of statutory rules election

      could not be set aside unless it is shown that such non-observance

      resulted in materially affecting the results. It is not only to be

      pleaded, but proved.43.     Keeping these principles in mind, I would now

      examine the evidence. First, so far as the statutory procedure is

      concerned, no doubt, it is binding, but in exigency of situation

      change in polling booth with approval of Election Commission of

      India even after the last date of withdrawal of candidature cannot be

      said to be an infraction of law or procedure necessitating

      intervention by courts in an election petition.44.      The documentary evidence, as noted above, it

      clearly shows that the election petitioner was fully aware of the

      changes that were being made and he had participated in the meeting

      and had raised no objection regarding the changes. He and his party

      were fully aware of the changes and if his voter base was getting

      affected, it was expected to him to take effective steps to secure his
 Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 29 -interest by informing his voters. Reports were there in the

      Newspapers well in time, then to say that location of booths were

      suddenly changed and the voters were caught unaware is not of

      much consequence.45. In the facts aforesaid, the ocular evidence, as noted

      above, is partisan. There is clear evidence that there were Maoist

      threat. Whether it was because of change of location or Maoist threat

      that votes were not cast is again speculative and in absence of any

      concrete fact proved no concrete opinion can be formed. But the fact

      remains that people did not vote for various reasons. If people did

      not vote, the administration cannot be blamed nor can the returned

      candidate be blamed. As noted, as per the decision of the Apex

      Court above, the result are not to be lightly interfered with, unless

      cogent evidence is brought on record to show otherwise. In the

      present case, the evidence is surely discrepant.46.     In the result, upon the facts as noted above, this

      Court is unable to come to a finding that the results of election by

      virtue of change of location of booth materially affected the results

      in order to avoid the elections in respect of the booths aforesaid.

      Thus, this issue is decided against the election petitioner and in

      favour of the respondent.47. Before closing, I would only observe that all the
      Patna High Court E.P. No.1 of 2010 dt.24-06-2015- 30 -recommendations for change of location of booth are based upon the

           safety and security of electoral officers. It cannot be disputed that

           they are integral part of the process, but at the same time, the

           Election Commission of India and the officers associated with

           election should consider that this is an election where right of voters

           is the first consideration. In the present case, in an extremist

           disturbed area asking the voters to leave their villages and travel

           through extremist affected territories, where the officers dread to

           travel, to another village to cast their vote would be unreasonable. In

           none of the communications, this aspect of the matter is taken into

           account. It is hoped that this aspect be kept in mind by the Election

           Commission of India in future before according approval for change

           of location of booth and that to so close to the voting day.48. In view of the issues as decided above, the election

           petition must fail and is dismissed, accordingly.(Navaniti Prasad Singh, J.)
Rajeev/A.F.R.

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