@JUDGMENTTAG-ORDER
G. Bhavani Prasad, J.@mdashE.A. No. 1043 of 2009 under Order VI Rule 16 of the CPC (for short '' CPC '') and Section 151 of CPC is for striking off the pleadings in paras 5, 9, 18 and 20 to 24 of the election petition.
2. E.A. No. 1044 of 2009 u/s 83(1) of the Representation of the People Act, 1951 (for short ''the Act'') is to declare the election petition to be not in conformity with the said provision and to be, hence, not maintainable.
3. E.A. No. 1045 of 2009 u/s 86 of the Act and Order VII Rule 6 of CPC is to declare the affidavit in support of the election petition concerning the alleged corrupt practices to be not in accordance with Rule 94-A of the Conduct of Elections Rules, 1961 (for short ''the Rules'').
4. E.A. No. 1046 of 2009 u/s 82(b) of the Act is to declare the election petition to be not complying with the said provision and to be, hence, not maintainable.
5. The parties are referred to herein as they are arrayed in Election Petition No. 9 of 2009.
6. The factual background for these four applications in Election Petition No. 9 of 2009 is that the schedule for general elections to the Andhra Pradesh State Legislative Assembly along with others was issued by the Election Commission of India on 02-03-2009 and No. 136-Nellimarla Assembly Constituency was among 172 Assembly Constituencies, for which election notification was issued on 23-03-2009. The election Petitioner and Respondents 1 to 10 contested the election to Nellimarla Assembly Constituency. The result of the election was declared by the Returning Officer after counting on 16-05-2009 with the 1st Respondent being declared elected with a margin of 597 votes over the election Petitioner.
7. The election Petitioner filed the election petition contending that he was elected as a Member of Legislative Assembly from 1983 to 2009 from Bhogapuram Assembly Constituency and he never faced a defeat in 26 years. The 1st Respondent is the cousin of Sri Botcha Satyanarayana, a State Cabinet Minister from Vizianagaram district and his wife Smt. Botcha Jhansi Lakshmi was elected from Bobbili Parliamentary Constituency in December, 2006 with a margin of 157 votes. There were allegations about Sri Satyanarayana prevailing upon the Returning Officer misusing his official position and hence, E.P. No. 1 of 2007 filed by the defeated candidate is pending. Rellivalasa village is the native village of the election Petitioner and in all the elections between 1983 and 2004, Telugu Desam Party got huge majority in all the polling booths of Rellivalasa. However, in the impugned election, the election Petitioner secured only 10 votes in booth No. 73 of Rellivalasa and the voting pattern for the Parliament and Assembly reveals that the votes exercised by the voters in Rellivalasa village were not accurately recorded by the electronic voting machine. The Bharathiya Janata Party (BJP) and Bahujana Samaj Party had even no polling agents in the village, but BJP got 319 votes for the Parliament and only 3 votes for the Assembly in that booth. The election agent of the election Petitioner Sri Mahanthi Chinnam Naidu raised objections concerning the functioning of the controlling unit. But the Returning Officer endorsed that no technical defect was found in the controlling unit of polling station No. 73. The large variance in the polling pattern between the Parliament and Assembly elections showed the defect in the electronic voting machines materially affecting the result of the election. The 1st Respondent with his nexus with the functionaries of the State Cabinet prevailed upon the officials and tampered the electronic voting machines. Instances from Sherilingampally, Quthubullapur, Tadipathri, Khammam, Ramagundam, Secunderabad, Alampur, Shadnagar, Parkal, Vijayawada West, Giddalur, Sullurpeta and Panyam about the electronic voting machines not reading the data or not getting opened or wrongly recording the voter preference show that there are defects in the functioning of the electronic voting machines with every possibility of being tampered. The Election Commission did not rectify the defects in spite of complaints. The voters do not know whether their votes were registered as per their choice and renowned experts in electronic field consulted by the election Petitioner explained the vulnerability of the machines to various methods of tampering.
8. The Election Commission of India entrusted the supply of electronic voting machines to the Electronic Corporation of India Limited and Bharat Electricals Limited and after developing the code, the Electronic Corporation of India Limited entrusted using the code into eight bit chips to RENESAS of Japan through a vendor. The designed programme sought to be fused into the chip after manufacturing was given to the vendor directly dealing with the manufacturing company and the manufactured chips after infusing the source code/programme are delivered to the vendor who delivered them to the Electronic Corporation of India Limited and Bharat Electricals Limited. The process threw open a number of opportunities for manipulation of code and the manipulated chips can be delivered to the manufacturer of the voting machines as if they are the original chips. The matter requires a deep investigation, as there is no mechanism or method for verification whether the chip contains the original code or not. Insertion of Trojans which can be activated through a sequence of key process in the original software cannot be detected in mock tests and the certain possibility of insertion of Trojans in the multiple chips in the process of infusion of original software into the chips is not excluded by any cross check for ascertaining the genuinity. The details of the electronic hardware and software used in the electronic voting machines were unavailable for scrutiny by impartial and neutral experts and there is no verified voter paper audit trial as used by developed countries like the United States, United Kingdom, etc. The electronic voting machines are, thus, prone to faulty logic, erroneous data flows, errors in circuit design, mistakes in the software code or data base, etc., which possibly enable rigging. In spite of dynamic key coding, diversion of votes by activating Trojans is possible and the circuit board on the control unit is not sealed. Preservation of the recorded data is also not done and even advanced nations have abandoned use of such machines and reverted to paper ballots.
9. The election Petitioner claimed that the electronic voting machine used in polling station No. 73 of Nellimarla Assembly Constituency was tampered, which can be demonstrated with the help of technocrats and experts in the electronic field. The vulnerability of electronic voting machines to tampering can lead to adjustment of votes in selected constituencies and with the connivance of the election officials, the tampering of the electronic voting machines had taken place in the impugned election.
10. Though an expert committee appointed by the Electoral Reforms Committee recommended in April, 1990 against the electronic voting machines and though an expert committee of the Election Commission of India itself suggested up gradation and evaluation of electronic voting machines with additional features on 29-12-2005, the Election Commission of India has not followed the suggestions.
11. The election Petitioner claimed that the 1st Respondent indulged in fraud and corrupt practices prevailing upon the election officials who did not take any steps to check the electronic voting machines by competent experts in spite of complaints. As the undisclosed source code ID and unavailable checking methods and tools lead to the inability of the election Petitioner to substantiate his contention, the assistance of the Court and electronic experts is required. But for the tampering of the electronic voting machines, the result should have been in favour of the election Petitioner. Polling Station No. 73 in particular indicated the impossibility of the election Petitioner getting only 10 votes in his own village. 431 voters of booth No. 73 gave notarized affidavits stating that they exercised their franchise in favour of the election Petitioner on the symbol of cycle, which proves the corrupt practice of tampering with the machine. The election is, thus, materially affected due to the irregularities, illegalities, corrupt practices and manipulation and violation of the Statute, the rules and the instructions. Hence, the election Petitioner sought for calling for the records and the electronic voting machines, appointment of experts in the electronic field to examine, verify and check the electronic voting machines at random and particularly controlling unit No. E069886 and ballot unit No. D35267 used in polling station No. 73 of Rellivalasa village and report to the Court concerning the vulnerability of tampering and to declare the election of the 1st Respondent as void and the election Petitioner to be duly elected.
12. The 1st Respondent resisted the election petition denying the allegations against Sri Botcha Satyanarayana and Smt. Botcha Jhansi Lakshmi. He also denied the allegations about any technical defects or manipulations in the electronic voting machine or about the voting patterns or about the votes polled in favour of the election Petitioner being not reflected in the controlling unit. While the 1st Respondent specifically denied each of the allegations in the election petition, he denied indulging in any corrupt practices or the involvement of Sri Botcha Satnarayana in any manner. He claimed that none of the allegations amount to corrupt practices and the affidavit in support of the election petition was not properly verified. It was never stated as to when, where, by whom and how any irregularities or illegalities were committed and it was only with the consent of all the political parties who satisfied about the functioning of the electronic voting machines and the absence of possibility of any tampering that the Election Commission of India introduced them in the election process. Sri Botcha Satnarayana against whom allegations were made, is a necessary and proper party and merely because the number of votes polled are reduced in favour of a particular candidate in comparison with the earlier elections, no manipulation can be presumed. The 1st Respondent earned very good reputation as Zilla Parishad Territorial Constituency Member of Denkada Mandal and as Chairperson of Zilla Parishad, Vizianagaram, he undertook many welfare programmes and worked for implementation of the Government programmes. The election was conducted strictly in accordance with the provisions of the Statute and the statutory rules and the Election Petition No. 1 of 2007 against the election of Smt. Botcha Jhansi Lakshmi was dismissed by this Court on 18-08-2009. The election Petitioner did not name a single expert and did not place any prima facie material to show tampering of the electronic voting machines in polling station No. 73 of Rellivalasa village. The 1st Respondent, hence, requested for dismissal of the election petition, which is not in accordance with the provisions of the Statute.
13. On such pleadings, the following issues were settled for trial of the election petition.
1. Whether the control units and ballot units of the electronic voting machines used in 136-Nellimarla Assembly Constituency in general and control unit No. E 025142 and ballot unit No. F-12581 used in polling station No. 73 of Rellivalasa village in particular were defective or manipulated or tampered with?
2. If so, whether the same materially affected the result of the election ?
3. Whether any random or particular examination, verification and checking of such control and ballot units of electronic voting machines by electronic experts regarding their vulnerability for manipulation or tampering can and/or should be resorted to ?
4. Whether the candidate of a political party which consented for the use of electronic voting machines can challenge such use ?
5. Whether the petition is bad for non-joinder of necessary parties ?
6. Whether the election petition and the accompanying affidavit as framed are not maintainable ?
7. Whether any notarized affidavits of voters about the manner of exercise of franchise can be acted upon ?
8. Whether the election of the 1st Respondent has to be declared void and the Petitioner has to be declared elected ?
9. To what relief ?
14. The election Petitioner also filed E.A. No. 537 of 2009 under Order XI Rule 14 and Section 151 of CPC to send for the entire polling material and documents and records and the electronic voting machines for proper adjudication of the election petition. The 1st Respondent resisted the same stating that the election Petitioner cannot seek such relief without establishing prima facie case and the relevancy of the records etc.
15. In E.A. No. 1043 of 2009, the 1st Respondent referred to the allegations made in para 5 against Sri Botcha Satyanarayana, para 9 about defects in and tampering of the electronic voting machines, para 18 about fraud in voting machines particularly in booth No. 73 in Rellivasala, para 20 about the tampering of electronic voting machines in polling station No. 73, para 21 about the voting pattern in polling booth No. 73 establishing such tampering by the 1st Respondent with the connivance of the election officials, para 23 about corrupt practices by the 1st Respondent and para 24 about tampering of the electronic voting machines materially affecting the result. He claimed that these allegations are vague and vexatious and are liable to be struck off.
16. In E.A. No. 1044 of 2009, the 1st Respondent claimed that the allegations made against him in paragraphs 9, 18, 20, 21, 23 and 24 are not in conformity with Section 83(1) of the Act, as no material facts like the date, place or any other material particulars regarding the alleged corrupt practices were mentioned by the election Petitioner. In their absence, the election Petitioner has no cause of action and the 1st Respondent is prejudiced in his defence in the absence of precise material facts and full particulars of the alleged corrupt practices. As such, the election petition is not maintainable.
17. In E.A. No. 1045 of 2009, the 1st Respondent claimed that the affidavit filed by the election Petitioner is not in accordance with Form No. 25 and is not properly verified and is not in accordance with Rule 94-A of the Rules. The copy furnished to the 1st Respondent is not a true copy and hence, the election petition is liable to be rejected.
18. In E.A. No. 1046 of 2009, the 1st Respondent contended that not impleading Sri Botcha Satyanarayana in spite of the specific allegations made against him is in violation of Section 82(b) of the Act and the election petition has to, hence, fail.
19. The election Petitioner in his counter affidavits to these applications contended in E.A. No. 1043 of 2009 that the details of allegations along with supporting materials were furnished and they are not vague or vexatious. The material facts and full particulars were specifically mentioned.
20. In E.A. No. 1044 of 2009, the election Petitioner claimed that specific cause of action arose out of the material facts and full particulars given in the election petition and the precise details are in conformity with Section 83(1) of the Act.
21. In E.A. No. 1045 of 2009, the election Petitioner contended that the affidavit was duly attested by the Commissioner of Oaths in accordance with Form No. 25 and Rule 94-A of the Rules read with Section 83(1) of the Act. The copies of the affidavit were duly served on the Respondents and the true copies contained all details.
22. In E.A. No. 1046 of 2009, the election Petitioner contended that he did not make any specific allegations against Sri Botcha Satyanarayana and hence, he need not be made a party to the election petition.
23. Hence, the election Petitioner desired that all the four applications be dismissed.
24. Among the material papers enclosed to the election petition, the Press Note of the Election Commission of India, dated 02-03-2009 referred to the decision to use electronic voting machines in all the polling stations of the country as was done during the last Lok Sabha elections in 2004 and that first level checking of these electronic voting machines had already been taken up. The Press Note also referred to a two stage randomization procedure to enhance transparency in the allotment of the electronic voting machines at the level of District Election Officer and Returning Officer respectively involving representatives of the recognized political parties at the District level and the candidates and their election agents at the Constituency level. The electronic voting machines were stated to be bearing unique identification numbers. The final result sheet of No. 136-Nellimarla Assembly Constituency shows that the 1st Respondent secured 48,155 votes, whereas the election Petitioner secured 47,558 votes. Out of the total valid votes of 1,47,725, only one other candidate secured 40,037 votes, while the votes secured by other contesting candidates were between 678 and 2,523. Some of the other material papers filed by the election Petitioner along with the election petition were about the voting patterns in the earlier elections, Parliament election and the impugned Assembly election. The Returning Officer after getting the control unit of polling station No. 73 verified by a technician from ECIL about the absence of any technical defect, issued an endorsement to the election agent of the election Petitioner that the control unit was working properly.
25. The election Petitioner also filed 431 identical affidavits of different voters who voted at polling station/booth No. 73 of Rellivalasa claiming that they cast their votes in favour of the election Petitioner, for which they pressed the button of cycle symbol, but they came to know that their votes were not counted in favour of the election Petitioner.
26. Sri A. Jagannatha Rao, learned Counsel for the 1st Respondent/applicant and Sri Kanakamedala Ravindra Kumar, learned Counsel for the election Petitioner strenuously reiterated their respective contentions with reference to various precedents.
27. Each of the four election applications have to be considered and decided on such material on record and in the light of such factual scenario.
E.A. No. 1046 of 2009:
28. Section 82(b) of the Act mandates that the Petitioner shall join as Respondent to his petition any other candidate against whom allegations of any corrupt practice are made in the petition. While Section 82 of the Act refers to only contesting candidates or returned candidates or any other candidates, Section 86(4) of the Act is the only other provision under which any candidate not already a Respondent can be joined as a Respondent. u/s 99 of the Act, a person who is not a party to the petition shall not be named as guilty of any corrupt practice unless he has been given notice to appear before the High Court and to show cause why he should not be so named, and if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who has given evidence against him and of calling his evidence in defence and of being heard. Naming a person who is not a candidate as guilty of any corrupt practice and giving him a notice and an opportunity, thus, arise at the time of making an order u/s 98 of the Act and not before. Precedents have laid down that by necessary implication, no person other than a candidate, as per Sections 82 and 86(4) of the Act, could be impleaded as a Respondent in the election petition.
29. In that background, the reference made to Sri Botcha Satyanarayana and Smt. Botcha Jhansi Lakshmi in the election petition has to be appreciated and the reference in para 5 of the election petition to the relationship between Sri Botcha Satyanarayana and the 1st Respondent and the allegations in connection with the election of Smt. Botcha Jhansi Lakshmi from Bobbili Parliamentary Constituency have nothing to do with the election now in dispute. The Election Petition No. 1 of 2007 filed to declare the election of Smt. Botcha Jhansi Lakshmi as void, was dismissed as infructuous by this Court on a memo filed by the learned Counsel for the election Petitioner therein on 18-08-2009. There was no other reference to these two persons anywhere else in the election petition and the election Petitioner in his counter-affidavit had clearly stated that he did not make any specific allegations against Sri Botcha Satyanarayana. In the light of such circumstances, the election petition cannot be considered to be not maintainable for non-compliance with Section 82(b) of the Act when Sri Botcha Satyanarayana is not a candidate and when he was not specifically accused of being guilty of any corrupt practice in connection with the subject election. Even if any reference to him in the election petition is suggestive by necessary implication of his being guilty of any corrupt practice connected with the subject election, the High Court will have to follow the mandatory procedure of Section 99 of the Act at a later stage and the election petition cannot fail on that ground. Hence, this application is unsustainable and has to fail.
E.A. No. 1045 of 2009:
30. The proviso to Section 83(1) of the Act mandates that where the Petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. Rule 94-A of the Rules prescribes that the said affidavit shall be sworn before a Magistrate of First Class or a Notary or a Commissioner of Oaths and shall be in Form 25. Form 25 prescribes that the Petitioner should make solemn affirmation/oath that the statements made in specified paragraphs in the election petition about the specified corrupt practice and the particulars thereof are true to his knowledge or information.
31. The affidavit in the present election petition specified that sub-paras 8, 9, 23, 24 and 25 of para No. III contained the particulars of corrupt practice/manipulation of electronic voting machines/ irregularities/illegalities. The election Petitioner stated that the contents of sub-para 8 in para No. III about the process of voting, usage of electronic voting machines, objections regarding non-recording of votes in favour of the election Petitioner and refusal of the returning officer for withholding the poll in polling station No. 73, are true to his knowledge and information, as his polling agent was present during the process. The contents of sub-para 9 in para No. III relating to manipulation of electronic voting machines were stated to be true to the knowledge of the election Petitioner and technical and legal advice. The contents of sub-paras 23, 24 and 25 of para No. III were stated to be true to the knowledge and information of the election Petitioner and technical and legal advice. The affidavit was signed before the Assistant Registrar and Oath Commissioner, High Court of Andhra Pradesh.
32. The 1st Respondent claimed that the affidavit is not in accordance with Form No. 25 and the copy furnished to him did not specify whether it is a true copy signed by the election Petitioner or before which authority the said affidavit was affirmed and signed. The election Petitioner asserted that the affidavit was duly attested by the Commissioner of Oaths and that it is in accordance with Form No. 25 duly and properly verified and signed on each page by the election Petitioner.
33. The verification of the affidavit is, thus, questioned to be not in accordance with Order VI Rule 15 of CPC and the copy of the affidavit furnished to the election Petitioner is alleged to be in violation of Section 81(3) of the Act, which should result in dismissal of the election petition u/s 86(1) thereof.
34. Sri A. Jagannatha Rao, learned Counsel for the 1st Respondent relied on
Charge of corrupt practice being quasi-criminal in nature the Court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is the violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of the Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the Petitioner as to the facts stated in the petition which are not to his knowledge and the Petitioner persists that the verification is correct and affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired and tried at all. In such a case petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings; it is no part of duty of the Court suo motu even to direct furnishing of better particulars when objection is raised by other side. Where the petition does not disclose any cause of action it has to be rejected. Court, however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. Petition has to be considered as a whole. There cannot be a partial rejection of the petition.
35. The learned Counsel also referred to
36. The learned Counsel also relied on
37. Similarly in Dr. Shipra v. Shanti Lal Khoiwal AIR 1996 SC 1691, the Apex Court found that in the earlier decisions of the Apex Court cited before it, the question had not arisen whether the copy of affidavit supplied to the Respondent without the attestation portion contained in it (though contained in the original affidavit) can be considered to be true copy. The dismissal of the election petition due to the material defect in the true copy of the affidavit, which is an integral part of the election petition, was upheld.
38. Likewise in
39. The learned Counsel also relied on M. Ranga Reddy v. N. Indrasena Reddy 1997(5) ALD 330, wherein it was concluded that failure to supply the true copy as required u/s 83(1)(c) of the Act by the election Petitioner to the retuned candidate is fatal and the election petition is liable to be dismissed on this ground alone.
40. Sri Kanakamedala Ravindra Kumar, learned Counsel for the election Petitioner, on the other hand, referred to
41. In Sardar Harcharan Singh Brar v. Sukh Darshan Singh and Ors. AIR 2005 SCC 22, the Supreme Court held that the failure to comply with the requirement as to filing of an affidavit under Rule 94-A of the Rules cannot be a ground for dismissal of an election petition in limine u/s 86(1) of the Act. If there was any defect in the affidavit, the election Petitioner should have been allowed an opportunity of removing the defect by filing a proper affidavit or else the effect of such failure should have been left to be determined and adjudicated upon at the trial. The Apex Court followed the earlier decisions, wherein it was held that an election petition is not liable to be dismissed in limine u/s 86 of the Act for the alleged non-compliance with the provisions of Section 83(1) or (2) of the Act or of its proviso.
42. The learned Counsel also relied on
43. Sri Kanakamedala Ravindra Kumar also relied on F.A. Sapa and Ors. v. Singora and Ors>.(1991) 3 SCC 375, in which the Apex Court held that mere defect in the verification of the election petition is not fatal to the maintainability of the petition. It was also held that a defect in the verification, if any, can be cured and it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true. It was also held that the defect in the affidavit in the prescribed Form 25 can be cured unless the affidavit forms an integral part of the petition, in which case the defect concerning material facts will have to be dealt with, subject to limitation, u/s 81(3) of the Act.
44. In Dr.
45. In the present case, each page of the election petition was signed by the election Petitioner and attested by the Assistant Registrar and Oath Commissioner, High Court of Andhra Pradesh. The verification at the end of the election petition clearly specified the contents to be true to the best of his knowledge, information and belief. Similarly, the affidavit filed under the proviso to Section 83(1) of the Act read with Rule 94-A of the Rules was also signed on each page by the election Petitioner and attested by the Assistant Registrar and Oath Commissioner, High Court of Andhra Pradesh and the contents of the affidavit, as already referred to, clearly specified about the basis for the particulars of corrupt practices alleged as knowledge and/or information and/or technical and legal advice and the verification at the end stated that the election Petitioner declared the above stated facts in the affidavit to be true to the best of his knowledge, belief and information and that he believed the same to be true and correct. The affidavit, thus, does not appear to be, in any manner, deviant from the prescribed Form 25 under Rule 94-A of the Rules and the affidavit was sworn in as prescribed by the said Rule with reference to Section 83(1)(c) proviso of the Act.
46. The further objection was about the copy of the said affidavit furnished to the returned candidate not specifying whether it is true copy or it is signed by the election Petitioner or before which authority it was affirmed and signed. It was not claimed in the affidavit in support of this application by the returned candidate that the original affidavit annexed to the election petition and the copy of the affidavit furnished to him are not identical except for the said want of signature of the election Petitioner and the particulars of the attesting authority. Even those allegations about absence of signature of the election Petitioner on the copy furnished to the returned candidate and the absence of specification of the authority before which the affidavit was affirmed and signed, were denied in the counter-affidavit of the election Petitioner.
47. V. Narayanaswamy v. C.P. Thirunavukkarasu(1 supra) was a case where the election petition lacked material particulars, verification of the petition was not in accordance with the Code and the affidavit did not conform to the form prescribed, but the election Petitioner persisted to the contrary. The present case is more like the one covered by Narain Chand Prashar v. Prem Kumar Dhumal and Ors. (2 supra) where the copy was similar to the original in all other respects except, if the allegations of the returned candidate are true, regarding the signature of the election Petitioner or the particulars of the attesting authority. The decision in Dr. Shipra v. Shanti Lal Khoiwal (4 supra), which was followed in N.V. Narasimha Rao v. Somepalli Sambaiah and Ors. (3 supra), Harcharan Singh Josh v. Hari Kishan (5 supra) and M. Ranga Reddy v. N. Indrasena Reddy (6 supra), was explained as confined to the fact situation in that case by a Constitution Bench of the Apex Court in T.M. Jacob v. C. Poulose (9 supra). The Constitution Bench held the wide observations made in Dr. Shipra v. Shanti Lal Khoiwal (4 supra) to have been made in the context of the facts of that case only and the Constitution Bench was of the view that the word ''copy'' occurring in Section 81(3) of the Act is only a copy so true that nobody could by any possibility misunderstand it. Referring to the earlier decisions of the Apex Court, the Constitution Bench reiterated that the election petition could not be dismissed, where there had been substantial compliance with the requirements of Section 81(3) of the Act, in limine u/s 81(1) of the Act. The Constitution Bench construed the expression ''copy'' as meaning a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges/allegations made against him in the election petition. Stating that the requirement is, thus, of substance and not of form, the Constitution Bench concluded that non-mention of the name of the notary or the absence of the stamp and seal of the notary in the otherwise true copy could not be construed to be omission or variation of a vital nature. The principles laid down by the Constitution Bench appear to squarely apply to the fact situation in this case. In F.A. Sapa and Ors. v. Singora and Ors. (10 supra), the Apex Court observed that Section 81(3) of the Act did not prescribe any particular form of attestation by the election Petitioner and the requirement of the provision is met by each copy being signed at the foot thereof by the election Petitioner, apart from holding any defect in verification or form to be curable. In Dr. Vijay Laxmi Sadho v. Jagdish (11 supra), the principles were reiterated. The principles laid down in Sardar Harcharan Singh Brar v. Sukh Darshan Singh and Ors. (8 supra) and Umesh Challiyill v. K.P. Rajendran (7 supra) about the rectifiability of such defects are also of relevance and in any view, the claim in this application appearing to be confined to absence of specification whether it is the true copy which is signed by the election Petitioner or which authority attested the same, the fact situation is squarely governed by the decision of the Constitution Bench of the Apex Court in T.M. Jacob v. C. Poulose (9 supra) and the election petition cannot be considered to be not maintainable due to any defect in the affidavit in support of the election petition.
E.A. No. 1043 of 2009:
48. This application under Order VI Rule 16 and Section 151 of CPC is to strike off the pleadings in the specified paragraphs of the election petition claiming the said allegations to be vague and vexatious. The first of such allegations was made in paragraph 5 of the election petition about Sri Botcha Satyanarayana, a State Cabinet Minister and cousin of the 1st Respondent and the election of his wife Smt. Botcha Jhansi Lakshmi from Bobbili Parliament Constituency, which was under challenge in E.P. No. 1 of 2007 before this Court. Neither the relationship nor the allegations of Sri Botcha Satyanarayana prevailing upon the returning officer to have his wife declared elected taking advantage of his position as Cabinet Minister, were stated to be of any relevance to the election in question herein and it is claimed to have been averred as a statement of fact. While E.P. No. 1 of 2007 was dismissed as infructuous at the instance of the defeated candidate/election Petitioner as already stated, the said averments without anything further are plainly irrelevant and unnecessary for the purposes of this election petition.
49. The next allegation in question is at para 9 of the election petition, where it was claimed that due to the defect in the electronic voting machines, the result in respect of the Nellimarla Assembly Constituency is materially affected and the Petitioner lost the election, whereas the 1st Respondent was declared elected and that it was certain that the 1st Respondent prevailed upon the officials behind the backdrop of his nexus with the top functionaries in the Cabinet of Andhra Pradesh; tampered the electronic voting machines only in order to defeat the Petitioner. In so far as the officials being prevailed upon, which was stated to be a certainty, is concerned, the basis for the election Petitioner believing or asserting the same to be a certainty was not stated and so was the allegation about tampering the electronic voting machines or the nexus of the 1st Respondent with the top functionaries in the State Cabinet. Who were the top functionaries in the State Cabinet, the nexus with whom forms the backdrop for tampering, was not specified and what was the defect in the electronic voting machines, which materially affected the result of the subject election also was not specified. Even if the allegations of the entire election petition are read as a whole, the defect which materially affected the result of the election or the tampering due to the nexus with anybody by prevailing upon the officials concerning the electronic voting machines, were not specified or identified with reference to their nature, date, day, manner and the persons involved.
50. The next allegation requested to be ordered for deletion is in paragraph 18 of the election petition, in which the allegation was that it is certain that fraud has taken place in several voting machines particularly in booth No. 73 in Rellivalasa village. What were the voting machines apart from those in booth No. 73 of Rellivalasa village which were subjected to any such fraud were not specified and what was the fraud which had taken place in respect of the voting machines in booth No. 73 in Rellivalasa village also was not specified. The pleadings of the election Petitioner read as a whole suggest the background in which the election Petitioner believed it to be possible or in his perception certain, but the same will only show the suspicion of the election Petitioner about the occurrence of such fraud and suspicion, however strong it may be, cannot be equated either to an allegation of a material fact or even prima facie probability or proof of the same.
51. Similar was the allegation in para 20 about the electronic voting machines used in the General Elections 2009 being certainly prone to tampering and particularly the electronic voting machine used in polling station No. 73 of Nellimarla Assembly Constituency being tampered. While it was nowhere stated as to when, where, how, by whom and in what manner the electronic voting machine used in polling station No. 73 of Nellimarla Assembly Constituency was tampered, all electronic voting machines used in the General Elections 2009 being tamper prone, as already stated, is the belief and perception of the election Petitioner for the reasons stated by him therein, but not based on any happening of any events in fact to the knowledge or information of the election Petitioner.
52. The allegation in para 21 of the election petition that the voting pattern in the particular polling booth No. 73 and other polling booths in the Constituency will clinchingly establish the tampering of the electronic voting machines by the 1st Respondent with the connivance of the 11th Respondent (the returning officer) and other election officials, is also an inference drawn by the election Petitioner from the voting pattern in the specified booth or other polling booths, but any presumption drawn by the election Petitioner from the voting pattern cannot form the factual foundation for any clinching establishment of the tampering of the electronic voting machines by the returned candidate or the connivance of any election officials with him in that regard without any personal knowledge or information of the election Petitioner or of any other person.
53. In para 23 of the election petition, the allegation sought to be deleted is about the 1st Respondent prevailing upon the election officials to indulge in corrupt practices and the fraud and corrupt practices materially affecting the result of the election. The allegations about the connivance between the 1st Respondent and the election officials in this regard were also not alleged with any specifics and the allegations are in tune with the vague and wholesale generalities being alleged by the election Petitioner in this regard. Any details of the date, day, time, persons involved, manner of fraud or corrupt practices and their material affect on the result of the election, were not specifically forthcoming.
54. Similarly in paragraph No. 24 of the election petition, the allegation requested to be deleted is that but for the tampering of the electronic voting machines committed by the polling officials at the instance of the 1st Respondent, the result would have been in favour of the election Petitioner in the Constituency and particularly polling station No. 73. Except repeated assertions of the alleged tampering of the electronic voting machines, the election petition is devoid of any specified particulars of such tampering.
55. It is in this background that the 1st Respondent seeks deletion of the above specified allegations and Order VI Rule 16 of CPC provides for the Court striking off any matter in any pleading at any stage of any proceedings, if such matter is unnecessary, scandalous, frivolous or vexatious or tends to prejudice, embarrass or delay the fair trail or is otherwise an abuse of the process of the Court.
56. In this connection, Sri A. Jagannatha Rao, learned Counsel for the returned candidate relied on
57. In
58. As Already referred to, the specific allegations sought to be struck off herein also suffer from the same vice of being vague and general lacking exactitude and deficient in identification and specification of the essential ingredients to constitute a corrupt practice or vitiating basis to consider positively negativing the election of the returned candidate. The application has to be, therefore, ordered and these allegations have to be, therefore, struck off from the pleadings.
E.A. No. 1044 of 2009:
59. Section 83(1)(a) of the Act mandates that an election petition shall contain a concise statement of the material facts on which the Petitioner relies and Section 83(1)(b) of the Act mandates that the election petition shall set forth full particulars of any corrupt practice that the Petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice.
60. In Azhar Hussain v. Rajiv Gandhi (12 supra), the Supreme Court referred to
61. In Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi(13 supra), the Supreme Court reiterated that if the allegations contained in the petition do not set out grounds of challenge as contemplated by Section 100 of the Act and if the allegations do not conform to the requirement of Sections 81 and 83, the pleadings are liable to be struck off and the election petition is liable to be rejected under Order VII Rule 11 of Code of Civil Procedure.
62. In V. Narayanaswamy v. C.P. Thirunavukkarasu (1 supra) also, it was reiterated that while failure to plead material facts is fatal to the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment.
63. In Narain Chand Prashar v. Prem Kumar Dhumal and Ors. (2 supra), concise statement of material facts is held to be a sine qua non to an election petition. It was held that words can neither be imported nor implied to search out or infer the intention of the Petitioner.
64. In
65. In
66. In
67. As against the above cited precedents relied on by Sri Jagannadha Rao, learned Counsel for the 1st Respondent, Sri Ravindra Kumar, learned Counsel for the election Petitioner referred to Virender Nath Gautam v. Satpal Singh and Ors. AIR 2007 Supreme Court 581, wherein also it was stated that if the material facts are not stated in a petition, it is liable to be dismissed on that ground. But what particulars could be said to be ''material facts'' would depend upon the facts of each case and no rule of universal application can be laid down. However, it was stated that it is absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party. Particulars, on the other hand, were stated to be details of the case, which is in the nature of evidence a party would be leading at the time of trial. They were stated to amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. However, it was made clear that considering the correctness of the allegations is a prohibited area, which is to be considered and adjudicated only at the time of trial. Whether or not the election Petitioner is able to prove an allegation is a matter of evidence, which can be considered only at the stage of trial, if an allegation is complete in itself.
68. Considering the correctness of allegations and evidence in support of the averments by entering into the merits of the case would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether an election petition was maintainable.
69. Similarly in Sardar Harcharan Singh Brar v. Sukh Darshan Singh and Ors. (8 supra), the Apex Court dealing with an election petition, in which the grounds of corrupt practice and the facts necessary to formulate a complete cause of action have been stated and even the particulars have been given, held that in any case, deficiency in particulars could not have been a ground for dismissing the petition at the threshold and either the election Petitioner should have been allowed an opportunity of removing the defect or the effect of such failure should have been left to be determined and adjudicated upon at the trial.
70. In
71. In F.A. Sapa and Ors. v. Singora and Ors.(10 supra), it was held that the allegations must be established beyond reasonable doubt and not merely by preponderance of probability and it is equally essential that the particulars of the charge or allegation are clearly and precisely stated in the election petition to afford a fair opportunity to the person against whom it is levelled to effectively counter the same. It was also pointed out that if full particulars of an alleged corrupt practice are not supplied, the proper course would be to give an opportunity to the Petitioner to cure the defect and if he fails to avail of that opportunity, that part of the charge may be struck down.
72. In
73. When the contents of the election petition are tested with reference to the principles laid down in the above cited precedents, it is seen that paragraphs 1 to 4 of the election petition about the election process, result thereof and the background of the Petitioner have no bearing on the validity or invalidity of the subject election. While the contents of paragraph 5 are irrelevant to the subject election, the contents of paragraphs 6 and 7 about the voting pattern were intended to impress about the improbability of the election Petitioner securing only 10 votes in polling booth No. 73 of Rellivalasa village. Para No. 8 of the election petition apart from comparing the voting pattern for the Parliament and the Assembly elections in the same booth alleged that the election Petitioner came to know that the votes exercised by the voters in Rellivalasa village have not been recorded by the electronic voting machine accurately to which candidate they voted and that the election agent of the Petitioner raised objections regarding the functioning of the control unit on the date of counting. How the election Petitioner came to know about any incorrectness in the recording of votes by the electronic voting machines in that booth was not further elaborated in any manner and if that alleged knowledge was based on the objections raised by any election agent on the day of counting, it was further stated therein itself that the Returning Officer gave an endorsement that there was no technical defect found in the control unit in polling station No. 73. Para 9 of the election petition again attempts to draw an inference from the voting pattern that the votes cast in favour of Telugu Desam Party must not have been recorded by the electronic voting machine and the allegations about defect in electronic voting machines materially affecting the result of the election and the certainty of the 1st Respondent prevailing upon the officials behind the backdrop of his nexus with top functionaries in the Cabinet of the State and tampering with the electronic voting machines to defeat the election Petitioner were devoid of any details. What was the defect in the voting machines was not stated. Which electronic voting machine in which booth was defective was not stated. Whether it was the control unit or ballot unit that was defective was not stated. Which official was prevailed upon by the 1st Respondent was not specified. The nexus with which top functionary in the Cabinet helped such process was not stated and who tampered with the electronic voting machines and when, where and how was also not stated. What was the basis for the assertion that when the button was pressed against the cycle symbol of the election Petitioner in the ballot unit, the same was not reflected in the control unit, was not stated. While paragraph 10 contains no allegation, paragraph 11 of the election petition is about the complaints in respect of working of electronic voting machines in the specified other Constituencies in the State, which has no relevance to the subject election. Thereafter, in paragraph No. 14, 432 voters of polling station No. 73 were claimed to have approached the election Petitioner declaring that they cast their votes in favour of the election Petitioner and except that statement, the contents of paragraphs 12 to 19 were generalities and while the renowned experts in the electronic field consulted by the election Petitioner were not named or identified, the allegations are about the vulnerability of the electronic voting machines to manipulation and tampering. The claim in paragraph No. 18 about the certainty that fraud had taken place in several voting machines particularly in booth No. 73 in Rellivalasa village is also not supported by stating the basis or reason for that believed certainty. The claim in para 20 that the electronic voting machines are certainly prone to tampering or that the electronic voting machine used in polling station No. 73 of Nellimarla Assembly Constituency was tampered was also not amplified by stating as to who tampered the electronic voting machine used in polling station No. 73, when, where and how. Even if such machines were prone to tampering, the same will not lead to any presumption of tampering of a particular machine or machines. While the election Petitioner desires to establish the vulnerability of electronic voting machines to tampering before the Court and the possibility of manipulations by insertions of Trojans into the original software, none of the contents of paragraphs 20 to 24 of the election petition contained any specific allegation about the manner and details of the alleged fraud and tampering with the electronic voting machines. The belief of the election Petitioner in the possibility of establishment of such fraud and tampering of the electronic voting machine used in booth No. 73 if produced and subjected to testing by experts, cannot be equated to any positive material fact relating to such fraud and tampering being alleged. Though in para 23, the 1st Respondent was alleged to have prevailed upon the election officials to indulge in corrupt practices and fraud, what were those corrupt practices and fraud materially affecting the result of the election due to such connivance was not elaborated. Repeated reiteration of the allegation of tampering of the electronic voting machines by the polling officials at the instance of the 1st Respondent without anything further is not capable of being considered as allegations of any necessary material facts concerning any corrupt practice or any other valid ground vitiating the election. It is only in paragraph No. 25 that there was a specific allegation that 431 (432) voters stated in their notarized affidavits that they voted in favour of the election Petitioner on the symbol of cycle, which itself showed that the electronic voting machine used in polling booth No. 73 must have been tampered materially affecting the result of the election. It is true that the election Petitioner filed 431 affidavits of the voters in booth No. 73 of Rellivalasa along with the election petition, while 10 votes were recorded to have been polled in favour of the election Petitioner by the electronic voting machine. In the absence of any specification as to when, where, by whom and in what manner the relevant electronic voting machine/machines was/were manipulated/tampered, all the necessary material facts constituting a valid and complete cause of action for challenging the election cannot be considered to have been alleged.
74. If the allegations in paragraphs 5, 9, 18 and 20 to 24 of the election petition to the extent they were considered to be liable to be struck off under Order VI Rule 16 of CPC in E.A. No. 1043 of 2009 were to be excluded from consideration, there is not even a remote possibility for claiming any fraud or manipulation or tampering materially affecting the result of the election to have been alleged and specified in the election petition. Even if there is no such deletion of any portions of the election petition from consideration, still the only specific allegations concerning the election process are about an objection by the election agent of the election Petitioner about the electronic voting machine used in polling station No. 73, which was answered by the endorsement of the Returning Officer about the absence of any defect in such machine and 431 voters of the said booth giving notarized affidavits stating that they voted in favour of the election Petitioner. All other allegations in the election petition on the vulnerability of the electronic voting machines were the beliefs or perceptions of the election Petitioner for the reasons stated by him. But any such inferences or presumptions drawn by the election Petitioner on his own logic cannot be equated to any specification of any corrupt practice or vitiating factor positively. After the specific endorsement about the absence of any technical defect in the control unit used in polling booth No. 73 was given by the Returning Officer after getting the said unit examined by a technician of the Electronic Corporation of India Limited, the alleged malfunctioning of the unit cannot be otherwise inferred.
75. The general suspicions about the functioning of the electronic voting machines and their vulnerability to manipulation and tampering cannot lead to a roving inquiry into the election process in this specific election. The grounds for declaring an election to be void were specified in Section 100 of the Act and interestingly, it was held in V. Nagaraj v. The State of Karnataka AIR 2009 KARN 170 that the alleged corrupt practice by manipulation of software technology of electronic voting machines with secret software code was not a ground enumerated in Section 100 Sub-section (1) or Section 101 of the Act. In that case also, the election Petitioner requested for appointment of a panel of expert engineers as Court Commissioners to verify all the subject 213 electronic voting machines so far as manipulation of the secret software code and thereby, diverting the recording of the voting pattern on pro-rata basis so manipulated in favour of the returned candidate and to set aside the election upon the subject electronic voting machines being proved as manipulated. The election petition therein also alleged the manipulation to be by way of undue influence to the Returning Officer in whose custody the electronic voting machines were kept. If this reasoning were to be adopted in the present case, the election petition has to be considered as not maintainable on that ground alone. While appointment of experts in the electronic field to examine, verify and check the electronic voting machines at random and particularly the electronic voting machines used in polling station No. 73 may amount to an attempt to collect evidence vitiating the election, even that request is for a report regarding the vulnerability to tampering in the electronic voting machines and vulnerability to tampering cannot possibly be equated to actual tampering itself.
76. That apart, use of electronic voting machines in the elections was originally not sanctioned and was refused by the Government of India when the Election Commission of India requested for the same and when the Election Commission of India gave a direction and got the votes cast in an Assembly Constituency by means of electronic voting machines, the same was the subject of challenge before the Supreme Court in
77. Subsequently by the amending Act 1 of 1989, Section 61-A was inserted in the Act enabling the giving and recording of votes by voting machines in such manner as may be prescribed and it was specified that any reference to a ballot box or ballot paper in the Act or the Rules should be construed as including a reference to such voting machine. Corresponding amendments were made in the Rules by introducing Chapter II in Part IV of the Rules.
78. Thereafter, the use of electronic voting machines in the election process was the subject of consideration in Michael B. Fernandes v. C.K. Jaffer Sharief 2004 (TLS) 1002884. The election Petitioner challenged the amendments to the Statute and the Rules making a provision for use of electronic voting machines on grounds of inherent defects in the electronic voting machines and their vulnerability to tampering. The learned Judge noted that since A.C. Jose v. Sivan Pillai and Ors. (22 supra) there has been a tremendous advancement in the electronic technology and after examining the scientist, who is one of the co-designers of the electronic voting machine, as a Court witness, the learned Judge opined that the defects of the machine pointed out in A.C. Jose v. Sivan Pillai and Ors.(22 supra) no longer remain relevant and the present improved version of the electronic voting machine takes care of all those defects. The contention that the amendment of the Act and the Rules is ultra vires and bad in law, was repelled, as the amendment to the Act and the Rules was carried out pursuant to the observations of the Supreme Court. The learned Judge proceeded to extract in detail the gist of the evidence of the scientist of Bharat Electronic Limited about the functional efficacy of the machine and the witness categorically stated that the encrypted code and data is unchangeable and indelible by anybody, even by the manufacturer and any attempt to tamper with the encrypted code would only result in damage to the machine. He also stated that the micro controller and memory cannot be manipulated by anybody and that either by manipulation or by accident there is no possibility of transfer of votes from one candidate to another and the machine designed is fully tamper proof. As nothing was elicited in the cross-examination of the witness about the vulnerability of the machine, the evidence was noted as fully inspiring confidence of the Court that the electronic voting machines are fully tamper proof and there is no possibility of manipulation or mischief at the instance of anyone. The learned Judge also noted that after the electronic voting machines have been put to use in the Parliament and Assembly elections, the practical wealth of experience has dispelled abundantly the theoretical unfounded apprehensions of the possible misuse. The learned Judge, therefore, concluded that the invention of the present version of the electronic voting machine is, undoubtedly, a great achievement in the electronic and computer technology and a national pride.
79. In Sharad Madhavrao Patil v. Rohidas Chudaman Patil 2008 (2) BCR 883 also, tampering of electronic voting machines resulting in incorrect recording of the votes cast was the ground of challenge alleging that the returned candidate and his supporters changed the integrated circuit of the electronic voting machines. Though there was some evidence to say that the polling at one or two places had to be stopped due to the defects in the voting machines, as there was no evidence to establish whether the integrated circuit of the voting machines could be tampered, whether the same was done and who was instrumental in the alleged tampering of the voting machines, the charge was considered to have not been established.
80. In Shishupal Natthuji Patle v. Praful Manoharbhai Patel 2010(4) Mh.L.J. 660 by a learned Judge of the High Court of Bombay also, the scope for manipulating and tampering the electronic voting machines was the subject of an issue apart from breach of the statutory rules and guidelines regarding the safety of the electronic voting machines, which materially affected the result of the election. The pleadings in that case were opined not to be specifically alleging the deficiencies or untrustworthiness in the functioning of the electronic voting machines, which materially affected the result of the election.
81. In
82. Electronic Limited under the Ministry of Defence. The machines cannot be reprogrammed and the source code is so designed that it allows a voter to cast his vote only once. The electronic voting machines used by the Election Commission of India were stated to be not comparable with the electronic voting machines used abroad, as the electronic voting machine in India is a fully standalone machine without being part of any network and with no provision for any input, whereas, most of the systems used in other countries are PC based and running on operating systems with possible vulnerability to hacking. As the software in the electronic voting machine chip is one time programmable and is burnt into the chip at the time of manufacture, nothing can be written on the chip after manufacture. The Press Note also detailed the complete procedural security achieved by the elaborate administrative measures and procedural checks and balances aimed at prevention of any possible misuse or procedural lapses. The learned Judge then referred to Michael B. Fernandes v. C.K. Jaffer Sharief(23 supra) and extracted the findings therein. The learned Judge, therefore, concluded that it is for the election Petitioner to demonstrate as to how the electronic voting machines could be tampered with to get the desired result. The correctness of all the technical aspects of the matter as reflected in FA Qs and the Press Note issued and uploaded on its website by the Election Commission of India, were noted to have already been verified on the judicial side in Michael B. Fernandes v. C.K. Jaffer Sharief(23 supra). In that case also, the counting agents of the election Petitioner complained against the counting process, which was allegedly refused to be acknowledged and what was alleged was the possibility of malfunctioning and tampering of the electronic voting machines. The learned Judge concluded that even if the averments made in the election petition are taken at their face value and are accepted in their entirety, no triable issue between the parties would arise in the absence of complete, precise and specific pleadings in respect of the alleged irregularities.
83. In Smt.
84. In the present case also, the absence of an opportunity to the voter to know whether his vote was registered as per his choice, the opinion of "renowned experts" about the vulnerability of machines to tampering, the possibility of insertion of Trojans into the original software, the possibility of replacement of the fused chip, the absence of verified voter paper audit trial, the abandonment of electronic voting machines by several Western advanced countries, etc., are the main grounds of challenge to the election process and more or less similar allegations, suspicions and apprehensions were the subject of consideration in Michael B. Fernandes v. C.K. Jaffer Sharief(23 supra), Mukesh Nayak v. Brijendra Pratap Singh (26 supra) and the other three precedents cited above. The absolute acceptance of the evidence of the scientist/co-designer of the machine in Michael B. Fernandes v. C.K. Jaffer Sharief(23 supra) and the unqualified acceptance of the FA Qs and the Press Note issued and uploaded on its website by the Election Commission of India in Mukesh Nayak v. Brijendra Pratap Singh (26 supra) are of great persuasive value. Allegations of a similar nature were found in the other three precedents to be not disclosing a cause of action and to be not satisfying the test of a concise statement of material facts or the further test of setting forth full particulars of any corrupt practice including as full a statement as possible of the names of the persons, date and place concerning the corrupt practice. As to which corrupt practice specified in Section 123 of the Act was committed, is not clear from the averments of the election petition. Any ground for declaring an election to be void u/s 100 of the Act is not discernable with the required clarity from the pleadings of the election petition. Absence of compliance with Section 83(1)(a) and (b) of the Act has to consequently result in concluding the petition to be not in conformity with the mandatory provision. As already stated, it is only in respect of the control unit and ballot unit used in polling station No. 73 of Rellivalasa village, there was identified suspicion and while the objection of the election agent of the election Petitioner concerning the functioning of the control unit was verified by the Returning Officer through a technical expert of the Electronic Corporation of India Limited immediately, who found no technical defect, the sole basis for the suspicion of the election Petitioner is the alleged approach to him by 432 voters of polling booth No. 73 declaring that they cast their votes in his favour and giving notarized affidavits to him to that effect. However, any such statements by the said voters about the votes cast by them being not registered as per their choice throwing open the possibility of manipulation/tampering, cannot be equated to any specific allegation/contention of the particular control unit or ballot unit being manipulated or tampered with. The voters of the native village of the election Petitioner who is in active public life since decades and held various public offices, could not have in the ordinary and natural course of human events told the election Petitioner anything else but that they voted in his favour. Any justification for formation of strong suspicions on that count may not amount to any specific allegations of manipulation/tampering of machines in the absence of anything further. With the efficacy and integrity of the electronic voting machines being upheld by judicial precedents more than once and with similar pleadings having been found in similar cases to be incapable of constituting a prosecutable cause of action consisting of material facts, the election petition is an obvious attempt to indulge in collection of evidence vitiating the election through experts to verify the electronic voting machines, which is impermissible. Hence, this application to declare the election petition to be not in conformity with Section 83(1) of the Act has to succeed and the election petition has to be considered not maintainable irrespective of the result of E.A. No. 1043 of 2009 to strike off portions of the pleadings.
85. These four applications have to be ordered accordingly.
