Judgment:
ORDER
V. Gopala Gowda, J.
1. Election to Karnataka Legislative Assembly was held on 10-5-2008 and the petitioner had contested the election as an independent candidate in Gandhinagar Constituency, Bangalore. In the results announced, the 5th respondent was declared elected. The petitioner had filed this Election Petition originally with the following prayers:
a). to preserve and, or to verify all the subject 213 of electronic voting machines of the Gandhinagar constituency No. 164, Bangalore City by an expert software engineer;
b) to appoint panel of the experts engineers as court commissioners to verify all the subject 213 electronic voting machines of the Gandhinagar constituency, Bangalore City so far as manipulation with the secret software code (and thereby, diverting the recording of voting pattern on pro-rata basis so manipulated in f/o the 5th respondent);
c) to set aside the declaration of election of the 5th respondent that upon, the subject electronic voting machines were to be proved as manipulated;
d) to pass any other order or for orders deems fit in the circumstances of the case in the interest of justice and equity.
2. Upon verification of the Election petition, the office found that the petition presented was not in accordance with Section 81 of the Representation of People Act, 1951 (hereinafter referred to as the Act) and raised the following objections:
1. Is the Election Petition presented as per the Section 81 of the R.P. Act?. Advocate to clarify.
2. Why respondent No. 1 to 4 made parties in the petition, Advocate to clarify the same. (As per Under Section 82 of the R.P. Act 1951).
3. Are the contents of the Election Petition as per Section 83(1)(c) and 83(2) of the R.P. Act Advocate to clarify.
4. Election Petition is not accompanied by an affidavit in form No. 25, the same to be clarified by the Advocate.
5. The copies of the Election Petition to be attested by the petitioner under his own signature to be a true copy of the petition as per Section 81(3) of the R.P. Act, 1951.
6. The petitioner to sign the petition and verified in the manner laid down in CPC for verification of the pleadings.
7. The affidavit to be sworn before a magistrate 1st class or a Notary or a Commissioner of oath referred to in the provision to Sub-section (1) of Section 83 of the R.P. Act.
8. Affidavit to be filed in form No. 25, the same to be clarified by the Counsel appearing for the petitioner.
9. Correct size of covers to be furnished for issue of notice.
10. Petition to be signed by the adv. for the petitioner.
11. Respondent copy to be signed and verified in the manner lay down in CPC for verification of pleadings as per Section 81(3) of the R.P. Act
12. Respondent copy to be attested as true copy of the petition under the own signature of the petitioner as per Section 81(3) of the R.P Act.
13. Documents which are filed with the petition to be attested by the petitioner.
14. Vakalath to be filled-up and Advocate for the petitioner executed the signature of the petitioner in the vakalath.
15. C.C of Form No. 21C and 21E to be filed.
Learned Counsel for the petitioner has not complied with the office objections within the stipulated time as required under Rule 9 of Election Petition Procedure Rules (hereinafter referred to as 'the Rules'). Since the election petition was not in accordance with Section 81 of the Act, as per Section 86(1) of the Act, the petition ought to have been dismissed. When the matter was listed before the Court for the first time, a memo was filed on behalf of the petitioner seeking two weeks time to comply with office objections. Accordingly, two weeks time was granted with clear order that the petition will be dismissed if there is non-compliance.
3. Thereafter, as per the office note, except office objections (2) and (15), the other objections have been complied with. It is curious to note that in the guise of complying with the office objections, the Counsel for the petitioner has retained page Nos. 1 and 2 of the petition and replaced the other pages by virtually amending the election petition inserting the following to the pleadings:
At para 6;
unlike, other politicians causing service just before the elections just for the purpose of winning the elections.
At para 7, 10, 14 & 16:
The said manipulation is by way of undue influence to the Returning Officer in whose custody the electronic voting machines are kept and distributed to the polling staff under his charge. Hence, the said corrupt practices are Under Section 123(2), (7) and 8(2) of the R.P Act, 1951 for furtherance of prospectus of success by the 5th respondent in collusion.
In the prayer portion also, the following additional prayer is inserted:
b) the subject manipulations is by way of undue influence to the Returning Officer in whose custody the electronic voting machines are kept and distributed to the polling staff under his charge. Hence, the said corrupt practices are Under Section 123(2), (7) and 8(2) of the RP Act 1951 for furtherance of prospectus of success by the 5th respondent in collusion and hence, required to declare the election of 5th respondent as null and void.
All these amendments are made without obtaining order of the Court for such amendment.
4. In the petition filed originally there was an interim prayer to the following effect:
Wherefore, the petitioner prays this Hon'ble Court be pleased to pass an interim order directing the respondents 3 and 4 to preserve/seize all the subject 213 electronic voting machines of the Gandhinagar constituency No. 164, Bangalore city, so as to verify and to prove the manipulations played by fraud by way of secret software code under corrupt and bribery practices by the 5th respondent, in collusion, conspiracy and abetment in the interest of justice and equity.
There was no verification of the petition. But, while complying with the office objections, the interim prayer is removed and in its place verification is added.
5. While the election petition was presented on 8/7/2008, the Affidavit verifying the petition was sworn to subsequently on 29/8/2008. After amending the petition as mentioned above, a plain verifying affidavit is filed which is neither signed by the petitioner nor sworn to it, which is neither acceptable nor maintainable.
6. In the original petition filed, there was no reference to Form Nos. 21-C and 21-E and they are not produced. On the pretext of complying with the office objections, the same are referred to in paragraph 5 of the petition and the said documents are produced as Annexures-B & C respectively. This is not permissible in law.
7. When the matter was posted before the Court regarding maintainability of the petition, an application was filed seeking time for further compliance. Time was granted making it clear that if full compliance in accordance with law is not done, the petition will be dismissed. Since the papers re-filed were not in accordance with law, they have been ordered to be returned. But the Counsel has not taken the returned papers.
8. After all these things, learned Counsel for the petitioner has filed I.A.I/2008 seeking permission to carry-out the insertions which are extracted above, I.A.II/ 2008 to delete respondents 1 to 4, and I.A.III/2008 to direct the Election Commissioner to seize and preserve all the Electronic Voting Machines used in the election to the Gandhinagar constituency. Thereafter, a memo was filed not pressing I.A.I/2008 with liberty to file fresh application. Accordingly, I.A.I/2008 was dismissed as not pressed. I.A.IV/2008 is filed seeking permission to amend the petition to incorporate the extracted insertion in paragraphs 7, 10, 14 & 16 and also to add the prayer. The said application is followed by another Memo seeking to consider the said application. Submissions of the learned Counsel for the petitioner were heard regarding maintainability of election petition as also on I.A.IV/2008.
9. I.A.IV/2008 is not maintainable as the same has been filed for amending the petition. But amendment has already been made without obtaining Court order. Permission cannot be granted to make insertion to the pleadings and prayer when it has already been done. Had such application been filed before effecting the amendments, the Court would have considered it and appropriate orders would have been passed. Therefore, I.A.IV/2008 is dismissed as not maintainable.
10. Regarding maintainability of election petition, it has to be held against the petitioner for more then one reason. The petition is not maintainable for the following reasons:
a). The petition is not in accordance with Section 81 of the Act. An election petition can be filed on any of the grounds enumerated in Section 100(1) or 101 of the Act. According to the learned Counsel for the petitioner, the petition is filed on the ground of corrupt practice. The alleged corrupt practice according to the petitioner, is manipulation of software technology of Electronic Voting Machines with secret software code. This is not a ground enumerated in Section 100(1) or 101 of the Act. On this ground alone the election petition is liable to be dismissed.
b). As per the proviso to Section 83 of the Act, since the petition is filed on the ground of alleged corrupt practice, it should be accompanied by an Affidavit in the prescribed form. As already observed in paragraph 5 above, the petition was filed on 8-7-2008 but the Affidavit was sworn to subsequently on 29-8-2008. That means, as on the date of presentation of the petition the sworn affidavit was not accompanying the petition. After attending the office objections, the Affidavit was replaced by unsigned and unsworn affidavit. Thus, in the eye of law virtually there is no affidavit at all. For this reason also the election petition is not maintainable.
c). As per Rule 7 of the Rules, the election petition complete in all respects should be presented. In the instant case, the petition presented was not complete in all respects. That is why the Counsel has made insertions in the petition without orders of the Court and application is filed seeking ratification.
d). Section 123 of the Act deals with corrupt practices. Though under what provisions the corrupt practice alleged was not mentioned initially, in the insertions made it is mentioned that they are under Section 123(2), (7) and 8(2) of the Act. Sub-section (2) of Section 123 of the Act pertains to 'undue influence' involving direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right. That is not the case pleaded in the petition. Sub-section (7) is in respect of obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance(other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person.... This is also not the case of the petitioner. Sub-section (8) pertains to booth capturing, which is not the case of the petitioner. Thus, the petition as presented is not on any of the grounds enumerated in Section 123 of the Act much less the provisions mentioned in the insertions.
e). Under Rule 9 of the Rules, the office objections should have been removed within three days or within the period extended by the Court. In this case the objections are not removed within the stipulated time or extended period.
f). All the copies are not attested by the petitioner as true copy of the petition and therefore there is noncompliance of Section 81(3) of the Act.
g). The amended petition cannot be taken into consideration in view of the fact that the amendments are made by inserting the pleadings and additional prayer without Court order and proper verifying affidavit. If the original petition as filed is taken into consideration, it is not verified as provided under Section 83(1)(c) of the Act.
h). The petitioner has unnecessarily made respondents 1 to 4 parties. After the office raised objections, I.A.II/2008 is filed to delete them. Since the election petition itself is liable to be dismissed, there is no need to pass any order on this application.
i). The petition is lacking full particulars of alleged corrupt practice as to the names, date and place. There is non-compliance of Section 83(1)(b) of the Act.
j). The prayers made are also not specific and clear. The prayers are not in accordance with Section 84 of the Act.
11. The learned Counsel for the petitioner sought to justify the amendments made on the ground that no new ground is pleaded but the corrupt practice already pleaded has been elaborated with provisions of law. The attempt made by him in this regard is a futile exercise. The way in which he has handled the petition by replacing the pages with insertions, additions, deletions and alterations speaks of the callousness. Be that as it may, it is not a fit case to proceed with trial and the petition is liable to be dismissed on the ground of maintainability.
12. For the aforementioned reasons, I.A.IV/2008 is dismissed. The election petition is also dismissed under Section 86(1) of the Act as not maintainable.
13. The Registrar shall comply with Rule 19 of the Rules.