Devashish Jarariya vs Smt. Sandhya Rai

Heard on I.A.No. 3761/2019, an application under Section 151 of CPC on behalf of Election Commission of India seeking intervention for releasing the Electronic Voting Machines (EVMs) and Voter Verifiable Paper Audit Trail Machines (VVPATs) involved in the petition.

It is the submission of learned counsel for Election Commission of India (for short "ECI") that election was held for Lok Sabha Constituency No. 2 namely Bhind for which voting held on 12/5/2019 and result declared on 26/5/2019 and the election was held using EVMs and VVPATs in accordance with the Representation of People Act, 1951 (hereinafter referred to as "Act of 1951") and Conduct of Election Rules, 1961 (hereinafter referred to as "Rules of 1961"). EVMs of the Polling Stations of Constituency are preserved in MJS College Bhind, wherein classes of Graduation and Post-graduation are to be held but due to pendency of Election Petition the classes have been occupied for preservation of EVMs/VVPATs.

Beside that bye-polls for around 24-25 Legislative Assembly Constituencies are likely to be held soon and therefore, EVM / VVPAT machines are to be used for voting for those constituencies. Therefore, on this count also EVM/VVPAT machines are required to be released so that elections can be held with the help of those machines.

Learned counsel for the ECI also referred the fact regarding State Assembly Election of Bihar, which is in the offing. He further referred different circulars issued by ECI from time to time as well as judgment of Apex Court in the matter of N.Chandrababu Naidu and Ors. Vs. Union of India (Order dated 8/4/2019 in Writ Petition (Civil) No. 270/2019) as well as instructions dated 21/5/2019 issued by ECI in pursuance thereof regarding random selection of VVPATs and counting machines in each State Legislative Constituencies for audit and test of Votes Cast and Votes Counted.

In sum and substance, through the application ECI seeks release of EVM and VVPAT Machines for their use in coming elections.

On the other hand, learned counsel for the petitioner opposed the prayer on the ground that sheet anchor of the case of petitioner is non-compliance of Rule 56-D of Rules of 1961 and subsequent instructions dated 13/10/2017 of ECI; wherein, draw of lots for verification of VVPAT Paper slip of randomly selected polling station has not been conducted and therefore, election is allegedly null and void under Section 100 (1) (d) (iv) of the Act of 1951, therefore, procedure to be followed is yet to be ascertained. Therefore, VVPAT machines are required to be preserved till the evidence is over.

Learned senior counsel for respondent/returned candidate supported the submissions of ECI. According to learned senior counsel, no requirement persist for retention of EVM/VVPAT machines.

Heard rival contentions and perused the documents appended by respected parties in support of their submissions.

The case in hand is in respect of challenge to the election of returned candidate i.e. respondent herein, who is representing Parliamentary Constituency No. 2-Bhind (Scheduled Caste) Lok Sabha Constituency (M.P.) and allegations are in respect of non-conformity of Rule 56-D of Rules of 1961 as well as judgment of Apex Court in the case of Dr. Subramaniam Swamy Vs. Election Commission of India, Civil Appeal No. 9093/2013 decided on 8/10/2013 with Writ Petition (Civil) No. 406/2012 (Rajendra Satyanarayan Gilda Vs. Union of India) as well as instructions dated 13/10/2017 and 21/5/2019 of ECI regarding use of EVM/VVPAT machines for reconciliation of any confusion or disputes regarding casting and counting of votes.

Apex Court in the case of N.Chandrababu Naidu (supra) and connected writ petition passed an order dated 8/4/2019 issued directions for increase of VVPAT machines from One Polling Station per Assembly Constituency to Five Polling Stations per Assembly Constituency. Therefore, it is yet to be ascertained whether compliance of Rules and instructions were carried out regarding tally of casting and counting of votes through VVPAT machines.

Therefore, at this juncture if the EVM/VVPAT machines are directed to be released then this may create anomalous situation or may cause prejudice to any of the parties. Even otherwise, written statement/reply has not been filed by the returned candidate yet, therefore, submissions of other side are yet to be ascertained. Therefore, at this juncture, it would not be in the interest of justice to release the EVM/VVPAT machines.

Needless to say that ECI already has sufficient number of EVM/VVPAT machines and only 25 Assembly Constituencies are going for bye-polls in State of M.P., which can be managed otherwise also by the ECI. Therefore, application at this juncture sans merits and is hereby rejected.

However, looking to the facts situation, parties shall have to complete the pleadings at the earliest and shall have to complete their part of evidence as early as possible so that allegations can be verified on the touchstone of evidence. However, ECI shall always be at liberty to renew the same prayer, if parties show lackluster approach in conduction of case.

Thus, application (I.A.No. 3761/2019) is hereby rejected with aforesaid direction.

Respondent is directed to file written statement/reply on or before next date of hearing.

List the matter in the week commencing 10th  August, 2020.