Smt. Rekha Devi and ors. Vs. State of U.P. and ors. - Court Judgment

Excerpt:
[v. ramasubramanian, j.] - tamilnadu societies registration act; bar council of tamil nadu election rules - rule 2(xiv); code of civil procedure (cpc) - order 1 rule 8 - section 91; societies registration act; companies act, 1956; representation of the people act, 1951 - section 64a - on a memo filed by the learned judge-commissioner, after the conclusion of the elections to the state bar council on 4-3 2011, i passed an order on 8-3-2011, invalidating all the votes polled in the district court campus at nagercoil and at padmanabhapuram. 3. to recapitulate, the last election to the bar council of tamil nadu was held on 20.9.2005 and the council was constituted on 12.10.2005. by the first resolution, an election schedule was finalised and the secretary of the state bar council was appointed as the returning officer. on the morning of the polling date, the presiding officers shall hand over the ballot papers to the polling officer. the presiding officers of the courts to whom the task of receiving the ballot papers and sending them back are entrusted, shall each nominate one senior and respectable member of the local bar, in which the polling booth is located, to be a poll observer. within 2 days of the conclusion of the poll, every independent poll observer shall send a report about the conduct of the election in his booth directly to the commissioner. all the polling officers of all the 172 polling booths shall take the advice/orders of the commissioner from time to time, to ensure the conduct of the elections in a free and fair manner. the commissioner is requested to file a report after the conclusion of the poll. before counting of the votes, 4 or 5 districts ballot boxes to be opened and mixed in a big box in order to prevent voting particulars of each bar. the voting in the elections to the bar council is no doubt by secret ballot. but a few bar associations, located in courts where some of the polling booths will come up, have a membership of less than 100 or 50 advocates. after the polling, the ballot boxes shall be handed over by the judicial officers to the deputy superintendent of police within whose jurisdiction the polling booth is located. apart from the polling officers nominated under the statutory rules, by the returning officer (secretary to the bar council) to each of the 172 booths, the presiding officers of the respective courts also nominated one senior and respectable member of each of the local bar as independent poll observers in each of the 172 booths. apart from these regular polling officers (172) and the independent poll observers (172), the learned judge commissioner also sent about 40 special observers to certain places which were considered as sensitive, by virtue of past experience. in their report, messers.l.chandrakumar and v.parthiban, advocates sent as special observers to nagercoil, had stated the following:- at the beginning itself, the local observer, the polling officer, volunteer and the other advocates who gathered at the polling arena have unequivocally informed the undersigned special poll observers that the bar had unanimously taken a decision to vote for only one candidate. when the polling commenced at 10.00 a.m., the polling officer, who was expected to discharge his duties impartially and without partisan approach, started issuing ballot papers to the voters after marking first preference vote to one candidate. at that time, approximately, around 550 votes had been polled. out of total 948 votes, 921 votes came to be polled in the fashion (except of course few votes) as indicated above. the report received from mr.k.chandru, observer at nagercoil polling booth, makes a sad reading. the polling officer refused to use the indelible ink. 23. apart from the report of the special observers of the present elections (2011) and the report of the special observer of the previous elections(2005), the judge commissioner had also received a complaint before the date of the poll, from one member of the local bar about the intentions of the naercoil bar association. the total number of voters : the total number of votes polled: 218 rules 20 and 25(2) of the bar council of tamil nadu election rules read as follows:- voting papers when invalid: the expression "returning officer" is defined under rule 2(xiv) of the bar council of tamil nadu election rules to mean the person appointed by the bar council to conduct the election. 42. in circumstances of this nature, there are 2 options available namely (i) to countermand the poll in these 2 booths and order re-poll or (ii) to declare the votes polled in these 2 booths as invalid. 43. i am conscious of the consequences of invalidating the votes polled at two booths, by invoking rule 25(2), especially when the election is by means of a single transferable vote. 44. in any case, the bar council of tamil nadu election rules does not speak of any alternative other than invalidating the tampered ballot boxes under rule 25(2). the learned judge may proceed to count the votes from all other booths from 9.3.2011 onwards and file a report. all the members of the plaintiff-association are also members of the bar council of tamil nadu. one of the directions was to the presiding officers of the courts in which the 172 election booths were spread over, to nominate a senior and respectable member of the local bar to be an independent poll observer. even the presiding officers of nagercoil and padmanabapuram courts have nominated members of the local bar as independent observers. there is no dispute about the fact that an independent poll observer was nominated by the district court, nagercoil and an independent poll observer was nominated at padmanabapuram. the polls were held on 4.3.2011. even till date the polling officer as well as the independent poll observer from nagercoil had not sent their reports. 43. as stated earlier, the unanimous resolutions of bar associations, to vote for a particular candidate, would fall under three categories viz.:- cases where bar associations were bought out. the voters were not allowed to cast their votes. out of 948 votes, about 920 votes are reportedly polled. but, 920 voters never turned up for voting. the present poll does not manifest the wish of the voters. 53. section 15(2)(a) of the advocates act, 1961, empowers the bar council to make rules, providing for the election of members by secret ballot. 56. rule 18 of the said rules prescribes that voting shall be in person at the polling booth and not by proxy. rule 19 deals with the mode of supply of voting papers. 58. rule 22 (1) indicates the method of voting. 59. rule 23 prescribes the procedure for sealing of ballot boxes after close of poll and the transmission of the ballot boxes to the returning officer. rule 35 deals with election disputes and rules 36 to 38 deal with the constitution and powers of an election tribunal. rule 40 deals with appeals against the orders of the election tribunal, to the bar council of india. there is no provision for the returning officer to order re-poll. a.no.1628 of 2011 (padmanabhapuram bar) despite the above instructions issued by the election commissioner and despite the court orders, if the polling officer/poll observer had permitted some persons to vote without showing any kind of identity, it would clearly amount to a violation of the prescriptions. another interesting contention raised by the padmanabapuram bar association is that they have a membership of about 298 voters and that only 218 voters cast their votes. the independent poll observer nominated by the local judicial officer for overseeing the poll in padmanabhapuram booth was mr.alwin vethamony. the secretary of the local bar association had already been nominated as the polling officer by the returning officer (secretary of bar council), in terms of rule 16 of the bar council of tamil nadu election rules. the appointment of the independent poll observer was in addition to the polling officer nominated by the returning officer. if a person so nominated by the judicial officer, to be an independent poll observer, has himself violated court orders and the instructions issued by the election commissioner by identifying several members of the bar and permitting them to vote without any kind of identity, the same cannot be condoned. as in the case of the booth at district court campus, nagercoil, the independent poll observer of padmanabapuram mr.s.alwin vethamony also did not send his report, immediately after the elections.1. heard learned counsel for the applicants and the learned a.g.a. the applicants, through the present application under section 482 cr.p.c., have invoked the inherent jurisdiction of this court with the prayer that the proceeding of case no. 3894 of 2009, under sections 420, 467, 468, 471 i.p.c., p.s. kotwali, district kanpur nagar pending in the court of special chief judicial magistrate, kanpur nagar be quashed.2. the contention of the learned counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with malafide intentions for the purposes of harassment. he pointed out certain documents and statements in support of his contentions.3. from the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. all the submissions made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this court under sections 482 cr.p.c. at this stage only a prima facie case is to be seen in the light of the law laid down by the supreme court in cases of r.p. kapur versus state of punjab, air 1960 sc 866, state of haryana versus bhajan lal, 1992 scc (cr) 426, state of bihar versus p.p. sharma, 1992 scc(cr) 192, and lately zandu pharmaceutical works ltd. versus mohd. saraful haqe and another (para 10), 2005 scc (cr.)283. the disputed defence of the accused cannot be considered at this stage. 4. moreover, the applicants have got a right of discharge under section 239 or 227/228 cr.p.c. as the case may be through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the trial court.5. in the event such an application is filed within one month from today, the trial court is directed to consider and dispose it off within a period of two months from the date of it's filing. the prayer for quashing the proceeding is refused.6. the criminal miscellaneous application is rejected with a direction that the bail prayer of the applicants be considered on the same day after hearing the public prosecutor. with the aforesaid directions, this application is dismissed.

Judgment:
1. Heard learned counsel for the applicants and the learned A.G.A. The applicants, through the present application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this court with the prayer that the proceeding of case no. 3894 of 2009, under Sections 420, 467, 468, 471 I.P.C., P.S. Kotwali, district Kanpur Nagar pending in the court of Special Chief Judicial Magistrate, Kanpur Nagar be quashed.

2. The contention of the learned counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with malafide intentions for the purposes of harassment. He pointed out certain documents and statements in support of his contentions.

3. From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this court under Sections 482 Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur versus State of Punjab, AIR 1960 SC 866, State of Haryana versus Bhajan Lal, 1992 SCC (Cr) 426, State of Bihar versus P.P. Sharma, 1992 SCC(Cr) 192, and lately Zandu Pharmaceutical Works LTD. versus Mohd. Saraful Haqe and another (Para 10), 2005 SCC (Cr.)283. The disputed defence of the accused cannot be considered at this stage.

4. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C. as the case may be through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the trial court.

5. In the event such an application is filed within one month from today, the trial court is directed to consider and dispose it off within a period of two months from the date of it's filing. The prayer for quashing the proceeding is refused.

6. The criminal miscellaneous application is rejected with a direction that the bail prayer of the applicants be considered on the same day after hearing the Public Prosecutor. With the aforesaid directions, this application is dismissed.