Appellate Division Cases
(Civil)
PARTIES
Dr. Alauddin Ahmed …………………Appellant
-vs-
Md. Idris Ali Bhuiyan and others …………Respondents
JUSTICE
Syed J. R. Mudassir Husain C J
Mohammad Fazlul Karim J
M. A Aziz J
Amirul Kabir Chowdhury J
JUDGEMENT DATE: 30th October, 2004
The Constitution of Bangladesh, Article 31,49.
Md. Shajahan Vs. Md. Sadeq 38 DLR(AD)
275, Styed A Jalil Vs.Mahub Alam 46
DLR(AD) 96 and Muzaffar Hossain Vs. Md.
Humayun 48 DLR (AD) 59.
The Election Tribunal is at liberty to consider the effect of having such hole in the gunny bag while inspecting the documents sent in the said bag and the Tribunal may examine the presiding officer and or other election officers concerned in the poll of Burudia High School Polling Centre as to the position/circumstances causing hole in the gunny bag. Mere appearance of hole in the gunny bag in which the documents have been sent cannot, in our view, invalidate the order of the Tribunal Calling for the records in question ……………….(16)
In order to maintain the sanctity of the election, the packets inside the gunny bag should be scrutinized carefully and strictly and in the fitness of things examination of the Presiding officer or concerning polling staffs may be indispensably necessary to ascertain as to whether the packets and contents inside the packets are intact and would unerringly show that the ballot papers, the counterfoils of the issued ballot papers and the marked copies of the electoral rolls were not tempered with by some malicious hands meanwhile in order to create evidence/ground for undoing the election……………………..(18)
Civil Appeal No. 75 of 2004 (From the Judgment and Order dated 26.10.2003 passed the
High Court Division in Election Petition No. 02 of 2001)
Rokunucldin M ahmud. Senior Advocate, instructed bx Md. Nowab Ali, Advocate-on-
Record…………………. For the Appellant
Khonker Mahbubuddin Ahmed, Senior Advocate, instructed by S.R. Khoshnabish,
Advocate-on-Record……………. For Respondent No. 1
Not represented………………… Respondent Nos. 2-4
JUDGMENT
1. Amirul Kabir Chowdhury J :- This appeal at the instance of Dr. Alauddin Ahmed respondent in an Election Petition arises out of order dated 26.10.2003 passed by the High Court Division in Election Petition No.2 of 2001 allowing partly an application filed by the Election Petitioner directing the Returning officer and Deputy Commissioner, Kishoregonj to send the documents detailed in the schedule of the application.
2. The facts leading to the appeal are that the respondent No.l filed Election Petition No.2 of 2001 before the High Court Division under Article 49 of the Representation of the People Order 1972 in short the Order praying for a declaration that the election of the returned candidate i.e present appellant is void and for a declaration that the election petitioner respondent No. 1 has been duly elected as member of the parliament of the 8 Jatiya Sangsad Election from 165, Kishoregonj-1, constituency and for other reliefs alleging, inter alia, that in the polling at 26, Burudia High School Polling center at about 10 A.M . On the date of election some outsiders illegally entered into the polling station, drove out the agents of the election petitioner respondent No.l, snatched away the ballot papers from the election officers on duty and stamped the seal of the symbol boat thereon and stuffed the same in the ballot boxes and because of the foul means the respondent No. 1 got himself declared elected by a margin of 112 votes.
3. The appellant appeared and contested the petition filing written statement denying the allegations and stating, inter alia, that the election at 26. Burudia High School Polling Centre was held peacefully and the allegations of outsiders entering the election booths, driving out of the appellant’s agents, snatching away of the ballot papers or dropping the same, stamping the symbol of boat on he ballot papers were false. The High Court Division recorded evidence and heard argument of the parties till 22.10. 2003 and on that date the respondent No.l filed an application for directing the Rtuming Officer and Deputy Commissioner, Kishoregonj to send the documents detailed in the schedule of the application and the respondent No.l filed a written objection against the said application. The application being hard the learned Single Judge of the High Court Division by the impugned order directed the Deputy Commissioner, Kishoregonj to send (I) packets containing the ballot papers, (II) packets containing the counterfoils of issued ballot papers and (III) packets containing the marked copies of the electoral rolls.
4. Being aggrieved the appellant moved this Division and the leave thus has been granted to consider the submissions as under: “Mr Rokonuddin Mahmud, the learned Counsel appearing for the petitioner submits that the above impugned order was communicated to the Deputy Commissioner, Kishoregonj who was directed to send the Election Tribunal the packets containing the ballot papers, packets containing the counterfoils of issued ballot papers, and packets containing marked copies of the electoral rolls relating to 26 Barudia High Court Police Station and in compliance, those packets reached the High Court Division packed in a gunny bag which was shown to the High Court Division on 11.11.2003 and it was found that the above gunny bag contains a big hole measuring 10 ½ X 10 ½ and it was also found that because of the such big hole it was possible to bring out ballot papers and other documents and to insert those after manipulation and that the jurisdiction of counting of ballot papers lies elsewhere and even the Election Tribunal cannot count the ballot papers unless a foundation is made out and it becomes necessary in support therefor.”
5. In support of the appeal Mr. Rokonuddin Mahmud, the learned Counsel submits, inter alia, that the High Court Division committed error in allowing the application of the respondent No.l which was filed after inordinate delay inasmuch as the parties adduced evidence and argument was also heard from both the parties. Referring to the application of the respondent No.l to call for the records in question Mr. Rokonuddin Mahmud has drawn our attention towards the last portion of the prayer wherein prayer has been made to take the documents called for in evidence and for counting the ballots. Taking clue there from the learned counsel submits that recording the evidence of the parties being completed and even argument being heard the prayer for taking the documents called for in evidence without examining competent officers/persons, the application was liable to be thrown out.
6. He emphatically submits that these things ought to have been done at the time of examination of the presiding/Assistant presiding officer/polling officers and thereafter he submits that at the time of counting of the ballots there was no objection by the respondent No.l or his agents. He has also referred to the evidence of RWs. 4 and 5, two witnesses taking part in the conduct of the election of disputed Burudia High School Polling Centre. Referring to the statements made in the election petition itself the learned Counsel Submits that the allegations now made asto illegal entry of outsiders at the polling centre, snatching away ballot papers and putting the seal into the ballot boxes have not been mentioned in the election petition for laying down the foundation thereof nor there is any allegation as to violation of Article 31 of the order and hench the documents called for to prove the same at this belated stage cannot be maintained.
7. In support of his submissions Mr. Rokonuddin Mahmud has referred to the decisions in the cased of Md. Shajahan Vs. Md. Sadeq reported in 38 DLR(AD) 275, Styed A Jalil Vs.Mahub Alam reported in 46 DLR(AD) 96 and Muzaffar Hossain Vs. Md. Humayun reported in 48 DLR (AD) 59.
8. Mr. Khondker Mahbubuddin Ahmed, learned Counsel appearing for the respondent No. 1 referring to Article 31 of he order submits that in the statements made in paragraphs 7, 8, 12 and 16 of the application under Article 49 of the Order laid down the foundation for the allegations mentioned in the application for calling for the records and there is no necessity to mention the law i.e Article 31 of the Order.
9. He further submits that the case of the respondent is not a case praying for recounting but there are allegations of the respondent to the effect that on the election day outsiders entered into the polling station drove out his agents, snatched way the ballot papers from the election officers and stuffed the ballot papers into the ballot box after putting the seal of the symbol boat and in order to appreciate the said allegations reiterated in the evidence recorded by the Tribunal, it was essentially necessary to call for the documents in question and hence the Election Tribunal did not commit any error in allowing the application.
10. We have considered the submissions and perused the materials on record. Mr. Rokounddin Mahmud in his submission emphasized that the election petitioner respondent could not make any foundation for calling for the records and as such the impugned order suffers from error. On perusal of the application under Article 49 of the Order it appears that the respondent election petitioner in paragraph 7 stated, inter alia, that “in different centres including 26 Burudia, High School Centre by his men under his command and entered into the both (sic) with arms at 10 a.m and threatened the agents of the petitioner with dire consequence and ousted all the polling agents of the petitioner. They also forcibly snatched away ballot papers from the Assistant presiding officers. The men of the respondent No.4 started to cast forged and false votes affixing seal in “Boat symbol” in favour of the respondent No.4 and took signature ofall the Assistant Presiding Officers forcibly in serveral papers Thereafter Md. Nurul Islam, Assistant presiding officer of the said centre escaped from there and made a written complaint to the District Returning officer on that date and a copy forwarded to the petitioners and the Assistant Returning officer, Pakundia.”
11. Simiarly in paragraph 8 the aforesaid averment was reiterated and in paragraph 16 the incident was elaborately mentioned as follows:”That the total number of voters of 26 Burudia High School Centre are 2397. The respondent Nos. 2 and 3 at the illegal influence of respondent No. 4 collusively showed cast of false and forged 1984 votes infavour of the respondent No.4 although the unruly men of the respondent No.4 entered into the aforesaid centre with arms and threatened the polling agents of the petitioner with dire consequence and ousted them from the booth and forcibly snatched away ballot papers from the Assistant Presiding Officers and stated to cast forged and false votes in favour of the respondent No. 4 . Against which the agent of the petitioner and one Md. Nurul Islam, Asistant Presiding Officer made several written complaint to the respondent Nos. 1-3 and the respondent No.3 assured verbally that there would be reelection of that centre consequently the agents of the petitioner on such false assurance of the respondent No.3 left the said centre. But the respondent No.3 in collusion with the agents of the respondent No.4 cast false and forged votes in favour of respondent No. 4 in consultation with the respondent Nos.l and 2 the respondent No. sent result sheet with false votes cast in turn forwarded the over all results of the said constituency to the election commission for declaration.”
12. The learned counsel for the appellant persistently submits that there is no mention of breach of the provision of Article 31 of the order and as such it should be taken that the allegations of violation of Article 31 of the Order are not there. The relevant provision of Article 31of the order is quoted below:”(2) Before a ballot paper is issued to an elector he shall be required to receive a personal mark made with indelible ink on the thumb or any other finger of either hand; the number and name of the elector as entered in the electoral roll shall be called out; a mark shall be placed on the electoral roll against the number and name of the elector to indicate that a ballot paper has been issued to him; the ballot paper shall on its back be stamped with the official mark; the number of he elector on the electoral roll shall be marked in writing on the counterfoil by the Presiding Officer who shall also stamp the counterfoil with the official mark; the elector shall put his signature or thumb impression on the counterfoil of the ballot paper.”
13. On perusal of the aforesaid provision it appears that before issuing a ballot paper to an elector certain legal formalities are essentially necessary to be fulfilled. But the learned Counsel for the respondent submits with reference to the election petition that the formalities mandated by law have not been observed which will be evident on perusal of the ballot papers and as such to appreciate the real state of affairs the ballot papers are necessary. After considering the facts and circumstances and the averment made in the application and the statements of the application praying to call for the records in question we are of the view that the submissions made on behalf of the respondent No.l cannot be brushed aside.
14. The next point raised by the learned Counsel for the appellant is that the application has been filed at a very belated stage as the evidence having been recorded the parties advanced their argument and at such belated stage the petition being filed it ought to have been rejected. The Election Tribunal has inherent power to dispose of an Election petition and so it cannot be stopped from passing any order at any stage the trial to meet the ends of justice. In view of the facts and circumstances of the instant case we do not think that there is any error on the part of the Election Tribunal to allow the prayer though it was filed when the hearing was on the verge of conclusion.
15. The learned Counsel of the appellant lastly referred to the order of the Election Tribunal dated 11.11.2003 and submits that the records called for have been received by the Tribunal but it was found that the documents packed in a gunny bag contained a big hole measuring lO’/i X 10l/2 and taking clue there from he submits that because of such big hole it was possible to bring out ballot papers and other documents and to insert those after manipulation and in that view of the matter the examination of the documents including the ballot papers contained in the bag would be a futile exercise which shall not give a correct picture of the facts and therefore, it should be held that the order passed by the Tribunal calling for the records has been illegal.
16. We have perused the aforesaid order of the Tribunal and have given our anxious consideration to the facts and circumstances. We like to observe that the election Tribunal is at liberty to consider the effect of having such hole in the gunny bag while inspecting the documents sent in the said bag and the Tribunal may examine the presiding officer and or other election officers concerned in the poll of Burudia High School Polling Centre as to the position/circumstances causing hole in the gunny bag. Mere appearance of hole in the gunny bag in which the documents have been sent cannot, in our view, invalidate the order of the Tribunal Calling for the records in question.
17. We have perused the decisions cited on behalf of the appellant which are regarding recounting of ballot papers. In the instant case the learned Counsel for the respondent repeatedly submits before us that his client does not demand recounting the ballot papers at this stage. It has been emphatically argued that the inspection of the documents called for shall indicate clearly that the ballot papers contained in the bag reflect that the prevision of Article 31 of the order has been violated due to the illegal entry of outsiders, snatching away of the ballot papers from the polling staff, stamping the symbol of boat by the unruly elements and stuffing the same in the Ballot Box and to appreciate the submission the respondent prays for its inspection. In such view the decisions cited on behalf of the appellant are of no benefit to him.
18. However, in the light of the allegations and consequent calling for the aforesaid records to ascertain the alleged violation of Article 31 of the order and in order to maintain the sanctity of the election, the pakets inside the gunny bag should be scrutinized carefully and strictly and in the fitness of things examination of the Presiding officer or concerning polling staffs may be indispensably necessary to ascertain as to whether the packets and contents inside the packets are intact and would unerringly show that the ballot papers, the counterfoils of the issued ballot papers and the marked copies of the electoral rolls were not tempered with by some malicious hands meanwhile in order to create evidence/ground for undoing the election.
19. We have perused the impugned order passed by the Election Tribunal and in view of the discussion made above we do not consider that the impugned order calls for our interference. In the result the appeal is dismissed without any order as to costs.
Ed
Source: I ADC (2004), 601