Smt. Ch. Sujatha vs The State Election Commission
2021 Latest Caselaw 1738 AP

               *HONOURBLE SRI JUSTICE D.V.S.S. SOMAYAJULU


                          +   W.P.No. 5470 of 2021


% 25.03.2021
# Smt. Ch.Sujatha,
W/o Ch.Ramesh, Tirupathi,
Chittoor District.
                                                         ... Petitioner


         Vs.
$ The State Election Commission
M.G.Road, Vijayawada and 4 others.
                                                      ... Respondents




! Counsel for the petitioner : Sri V.R.N.Prashanth

! Counsel for the Respondents : Sri N.Ashwani Kumar, SC for SEC
                                Sri Venkateswarlu Nimmagadda
                                Sri K.Krishna Reddy.


> Head Note:


? Cases referred:
1
    1993 (4) SCC 175
2   (2002) 5 SCC 294
3   AIR 1995 AP 212
4   1995 (1) ALT 204
5   2004 (3) ALD 196
6   1952 SCR 218
7   1978 (2) SCR 272
8   1984 (3) SCR 74
                                    2




           HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                       W.P.No.5470 of 2021
ORDER :

This writ petition is filed questioning the order dated

04.03.2021 passed by the 1st respondent by which he suspended

the election process to Ward No.7 of Tirupathi Municipal

Corporation with immediate effect.

The petitioner is a candidate who is contesting for the Ward

No.7 of Tirupathi Municipal Corporation. She along with the 5th

respondent have filed their nominations. The scrutiny of the

nominations were completed on 14.03.2020. However, due to the

Covid-19, elections were postponed. Thereafter, proceedings dated

15.02.2021 were issued by which it was clarified that the electoral

process from the stage of withdrawal of candidates would be

resumed. It is submitted that the 5th respondent appears to have

lodged a complaint stating that her signature was forged on a

withdrawal form and based upon the said complaint, cognizance

was taken and the matter was investigated. However, the 3rd

respondent had noted that the Returning Officer against whom the

complaint was made was not involved and that one D.Murali

Naidu- an Election Agent committed the offence. It is submitted

that even if the forgery was committed by a third party, the entire

election cannot be stalled. Hence, the writ petition.

For the petitioner, Sri V.R.N.Prashanth argued the matter and

pointed out that the initial complaint that was given by 5th

respondent was against the Returning Officer. He drew the

attention of the Court to complaint dated 03.03.2021. He also

points out that in the FIR that was finally lodged by the 5th

respondent, the name of the accused is a not shown. He argues

that this is a clear discrepancy in the procedure and that the 5th

respondent has utilized the opportunity to make allegations. The

letters of the Commissioner, Tirupathi Municipal Corporation

(respondent No.3) are also highlighted by the learned counsel in

which it is clearly asserted that the withdrawal form was submitted

by the Election Agent of the 5th respondent and that the Returning

Officer had followed the procedure stipulated under the Act and the

instructions given by the 1st respondent. Learned counsel points

that the video footage was also examined by the 3rd respondent

before they informed the same to the 2nd respondent. Learned

counsel also argues that assuming for the sake of argument that

forgery had taken place, it is a matter to be established by pleading

and proof during the course of election petition in a Tribunal and

that the 1st respondent did not have the power to suspend the

election process. He argues vehemently that the 1st respondent

does not have the power of "adjudicating" electoral disputes. It is

his contention that whether a forgery was committed or not is a

matter of investigation by the Police and a matter of proof during

trial in an Election Tribunal. He points out that even if the Police

submitted a report that an offence has been committed, still the

same has to be established in a Court of law. Therefore, learned

counsel argues that on the basis of surmises and mere conjectures,

the entire electoral process cannot be stalled. He argues that it is

for the election Tribunal alone to conclude that an offence was in

fact committed and the said offence had resulted in the withdrawal

of the nomination. Learned counsel also drew the attention of this

Court to an earlier order passed by this Court in W.P.No.5113 of

2021 and Batch dated 03.03.2021 to argue that this Court has

already held that a matter of fraud in an election is a matter of

pleading and proof and can be established in a duly constituted

election Tribunal as per the Act.

In reply to this, Sri N.Venkateswarulu appearing for the 5th

respondent relies upon the counter affidavit filed and argues that

the last date of withdrawal of nominations in this case was

03.03.2021. On that day, the 5th responded found that her name

is not in the list of valid candidates. When she questioned the

Returning Officer, she found that her candidature was withdrawn

by somebody who was said to be the election agent. Learned

counsel drew the attention of this Court to the affidavit filed,

wherein it is asserted that the 5th respondent never appointed any

Election Agent and that by forging her signature, her nomination

was withdrawn.

Learned counsel points out that thereafter she approached

the police authorities and lodged FIR.No.77 of 2021. It is stated

that she has named one D.Murali Naidu as an accused in the

complaint. However, it is mentioned that in the FIR that is lodged,

the name of the accused was not mentioned and that the accused

column in the FIR was shown as empty/blank. It is her contention

that with the active connivance of the 4th respondent, a forged letter

was submitted as if she has withdrawn her nomination.

Allegations are also made against the 4th respondent. It is

reiterated that no person was appointed as an election agent by

her. Learned counsel for the 5th respondent also highlights the

fact that the Police have started the investigation and the same has

progressed. Therefore, he submits that this is a matter which

needs to be established and until the same is done, the 5th

respondent cannot be said to have actually "withdrawn" from the

election. He argues that fraud vitiates the process.

For the State Election Commission, Sri N.Ashwani Kumar

appears. He points out that the alleged discrepancies in the

original complaint and the FIR are not very material and that it is a

matter of investigation. He submits that an FIR is not an

encyclopedia and the alleged discrepancies are small. He relies

upon the letters addressed by the 3rd respondent to respondent

Nos.1 and 2, wherein it is mentioned that the Superintendent of

Police was addressed to file an FIR against the Election Agent. He

draws the attention of the Court to the unnumbered para 3 of the

letter, wherein the 3rd respondent has clearly taken the stand that

basing on the report of the Returning Officer and the video footage,

the Superintendent of Police should be addressed to file an FIR

against the Election Agent, who has submitted the withdrawal form

with forged signatures as alleged by the candidate. The learned

standing counsel also relies upon a letter dated 06.03.2021

addressed by the Superintendent of Police, Tirupathi to respondent

No.1. It is mentioned therein that statement of five witnesses were

already recorded; that notices were served on the authorities for

proof of the documents along with visuals, video footage etc. The

subsequent signatures are also forwarded to the Forensic Science

Laboratory for comparison etc. Learned standing counsel,

therefore, submits that even as on date, the matter is under

investigation.

As far as the power of the Election Commission is concerned,

learned standing counsel argued that purity of electoral process

has to be preserved by the 1st respondent. He points out that the

letters filed by the petitioner show that there is a serious complaint

about the submission of withdrawal form with a forged signature.

The assertion of the 5th respondent in the counter affidavit that she

did not appoint an election agent at all is also a factor highlighted

by the learned standing counsel. It is his contention that in view

of the seriousness of the allegation, this is a fit case in which the

purity of election process is sought to be preserved by the 1st

respondent. He submits that there is no provision under the

relevant law dealing with a case of such nature namely forgery of

signatures in the withdrawal form of a candidate. Therefore, he

submits that in the absence of a law on the subject, the 1st

respondent had acted correctly and has taken the step of

postponing the election for the purpose of maintaining the purity of

the election. Learned standing counsel relies upon the leading

judgments of the Hon'ble Supreme Court of India in Digvijay Mote

v. Union of India1 and Union of India v. Association for

Democratic Reforms and others2 for arguing that purity of

election process should be preserved at any cost. Relying on these

two judgments, learned counsel argues that when the power is

1993 (4) SCC 175 2 (2002) 5 SCC 294

exercised for a germane reason and is based upon some material,

the Court should not interfere and should allow the 1st respondent

a free hand. He points out that other than stating that there is an

effective alternative remedy and that these are matters of pleading

and proof, no law has been cited which is contrary to these two

judgments. In his compilation, he has also filed other case law but

he essentially relies upon N.Kristappa v. Chief Election

Commissioner3 which was upheld in P.Ravindra Reddy v. The

Election Commission4. He also relies upon another Division

Bench judgment of A.P.High Court in Kanchupati Nageswara

Rao v. Alla Anjaneya Reddy5. Learned standing counsel argues

that in this case also basing on FIR etc., elections were stopped and

the Division Bench of this Court upheld the same. Therefore, it is

his contention that the 1st respondent has exercised his power for

genuine and germane reasons. It is his contention that there is no

mistake in the decision making process and as such, the order

passed should be upheld.

Consideration by the Court:

This Court after hearing of the learned counsel is of the

opinion that in view of the case law, the 1st respondent is the sole

repository of the power for the period of the elections. The words

superintendence, control and directions of an election were held to

be words of wide amplitude given wide power to the 1st respondent

to ensure a free and fair election. A number of earlier decisions of

3 AIR 1995 AP 212 4 1995 (1) ALT 204 5 2004 (3) ALD 196

the highest Courts of the land have clearly held that in any areas

left unoccupied by the law/legislation, the 1st respondent has the

power to act as the situation demands. Article 324 of the

Constitution has been held to be the reservoir of power and the 1st

respondent has been held to be sole repository of the power. It is

also settled law that the holding of a free and fair election is the

ultimate constitutional objective. The law is too well settled to be

repeated here.

This Court from the last few months has been hearing such

matters. In the earlier writ petition, namely WP.No.5113 of 2021

and batch, this Court held that fraud is a matter of pleading and

proof. In that case, the Court interfered because the 1st

respondent herein directed the District Collectors, Returning

Officers to look into the issue of fraud, forced withdrawals etc., and

submit a report within two days. This Court was of the opinion in

those matters that the District Collectors/Returning Officers are

not competent to go into this issue and decide the same more so

within the time frame stipulated. In those cases, this Court was

also dealing with candidates who were elected unanimously in view

of the withdrawal of their opponents and also duly elected. The

process was almost completed.

In the case on hand, there are a few distinguishing features.

(a) the election/poll was still not held.

(b) a complaint has been lodged as required by the Cr.P.C.,

before the competent Police Station. It is the Police, who have set

the law into motion by beginning an investigation into the subject.

(c) the 5th respondent has taken a positive stand that she has

not appointed an Election Agent at all. The question, therefore, is

who is the person, who has submitted the withdrawal form. Apart

from that, it is also asserted that she did not sign any withdrawal

form. The correctness of this allegation has to be examined. The

Police have already stated that they are in the process of

investigating the same and that the reports from the forensic

laboratory etc., are awaited. Even the letters addressed by the 3rd

respondent to respondent Nos.1 and 2 make it very clear that the

FIR should be lodged against the Election Agent.

In the opinion of this Court, the specific stand taken by the

5th respondent that she has not appointed an Election Agent and

that somebody has forged her signature to withdraw her

nomination is a matter of serious concern if it is true.

The vehement argument of the learned counsel for the

petitioner is that the 1st respondent cannot take a role of

adjudicatory authority and decide an issue like this. He contends

that there is no discretion vested in the 1st respondent to postpone

an election on the basis of a complaint or FIR. However, a reading

of the case law that is submitted, particularly, in N.Kristappa's

case (3 supra), shows that in this case the learned single Judge

was dealing with the election of Gorantla Assembly Constituency.

08.11.1994 was the last date for making nomination. 09.11.2014

was the last date for scrutiny. 11.11.2014 was the last date for

withdrawal of candidates and 01.12.1994 was the date on which a

poll was to be held, if necessary. A candidate of a political party

was abducted on the morning of 08.11.1994 and was freed on the

next day i.e. on 09.11.1994. Because of the kidnap, this candidate

could not file his nomination papers on 08.11.1994. Based upon

this incident of abduction and the reports thereon, the State

Election Commissioner recommended that the entire election

process should be rescinded. The Governor of Andhra Pradesh

accordingly issued the notification on 11.01.1994 rescinding the

entire election for this constituency. This action of the Governor

was challenged in the high Court of Andhra Pradesh. The learned

single Judge upheld the action on the ground of purity of elections

by his order dated 17.11.1994. This order was challenged before a

Division Bench in WA.No.1395 of 1994. The decision in the Writ

Appeal is reported in P.Ravindra Reddy's case (4 supra). The

Division Bench upheld the order passed by the learned single

Judge holding that the abduction of a candidate and his being

prevented from filing his nomination has "irretrievably sullied" the

electoral process.

Similarly, in Kanchupati Nageswara Rao's case (5 supra),

the election to the Office of the President of Mandala Parishad was

postponed on the ground that the spouse of an MPTC member was

kidnapped. Another complaint was given stating that an MPTC

member who was scheduled to vote was also kidnapped. These

complaints of kidnap prior to the election led to the impugned order

being passed on 12.02.2004 postponing the elections. This was

questioned in the writ petition. In this case also, the District

Collector called for a factual report from Superintendent of Police,

Prakasam District. The said report was received on 12.02.2004. In

addition, the Election Commissioner called for a report from the

District Collector, which was received on 11.02.2004. Based on

these reports, the decision to postpone the elections was taken.

The learned single Judge set aside the order of postponement. The

matter was taken to the Bench. The Bench upheld the suspension

and ultimately came to the conclusion that there was sufficient

material before the Election Commissioner to record his

satisfaction that the situation was not conducive for holding an

election in a free, fair and peaceful manner.

These two cases substantially answer the argument of the

learned counsel for the petitioner that the 1st respondent is

assuming the role of an 'adjudicatory authority' and deciding

whether there is a fraud/forgery etc. In the opinion of this Court,

at this stage, it cannot be said that the 1st respondent has entered

into an 'adjudicatory' role. The question that has to be seemed is

whether the impugned order is passed for an extraneous reasons or

if there is some material available, before the 1st respondent to

come to the conclusion that he did. In N.Kristappa's case (3

supra), the kidnap was on 08.11.1994 and the last date for filing

nominations was 09.11.1994. The Election Commissioner had

before him the report of the Superintendent of Police apart from a

case registered under the various provisions of law. Basing on the

same, the elections were postponed. The order was upheld by the

single Judge. He clearly held that after considering the leading

judgments in N.P.Ponnuswami v. Returning Officer6 and

6 1952 SCR 218

Mohinder Singh Gill v. The Chief Election Commissioner7 that

the State Election Commissioner has the authority to invoke its

plenary powers for issuing such a direction in cases of abduction of

a candidate and his failure to file a nomination. The election

process was held to be 'sullied'.

In para 32 of N.Kristappa's case (3supra), it was held as

follows:

"32. As discussed above, in the overall object of achieving the purity of the election process to remain intact, I am not persuaded to hold that the first respondent has acted arbitrarily or with any mala fide intention while recommending the Governor of Andhra Pradesh to rescind the election process insofar as it relates to 163-Gorantla Assembly Constituency of Anantapur District. The second question is accordingly, answered."

The Division Bench while considering the appeal against this

order of the single Judge also considered Articles 324, 329 of the

Constitution of India and the law on the subject including

Mohinder Singh Gill's case (7 supra). It also relied upon

A.C.Jose v. Sivan Pillai8 to reiterate the position that whether the

law is silent, the Election Commissioner has the plenary power to

give appropriate directions. In para 32 it was held that the

physical disability of a candidate to file a nomination by reason of

his abduction is a factor which has a bearing on the purity and

fairness from election. Therefore, the Division Bench upheld the

7 1978 (2) SCR 272 8 1984 (3) SCR 74

action of the Election Commissioner in rescinding the election

holding that the election process in Gorantla Constituency has

been irretrievably sullied. The Court was satisfied that the State

Election Commission has sufficient material before it. Even in the

Division Bench judgment of Kanchupati Nageswara Rao's case (5

supra), the Division Bench held that there was sufficient material

before the Election Commissioner to come to a conclusion about

postponement of the election.

If the present case is seen against the backdrop of the law on

the subject (which deal specifically the cases of abduction and

prevention), this Court is of the opinion that there was sufficient

material before the 1st respondent to make the recommendation.

The 5th respondent has gone on record and stated that she has not

appointed an Election Agent and that her signature has been forged

by somebody claiming to be her election agent. The entire

sequence of events therefore has to be investigated and established.

The 3rd respondent in the letters addressed to the 1st and 2nd

respondents directed the registration of the FIR also. The FIR was

in fact registered on 04.03.2021 and the report indicates that

witnesses were examined and FSL report is awaited. The alleged

discrepancies in the report and the FIR are not very material at this

stage, particularly, to hold that the 5th respondent made an

incorrect complaint etc. It is settled law that FIR is not an

encyclopedia of all the facts. The law is very well settled. The

purity of the electoral process is something that must be preserved

at any cost. This is a constitutional goal. All the judgments of the

Hon'ble Supreme Court of India on this subject are clear and

uniform. A free and fair poll is the ultimate objective of the entire

electoral process. If the allegations of respondent No.5 are found to

be true, it was definitely have 'sullied' the electoral process and its

purity. If not, the election can be held on another day. Public good

always outweighs individual good/need.

In the cases relied upon by the 1st respondent basing on

complaints of abduction, one election was rescinded and another

election was postponed. These judgments are binding on this

Court. In this case, the 2nd respondent directed that the election

should be suspended.

In that view of the matter, this Court is of the opinion that the

1st respondent had adequate material before him to come to a

conclusion based on the complaint of respondent No.5; the FIR etc.

This Court hope that this matter will be investigated and

concluded quickly. This Court holds that the 1st respondent had

sufficient material before him to take a decision and accordingly,

the writ petition is dismissed. No order as to costs.

As a sequel, the miscellaneous petitions, if any shall stand

dismissed.

________________________ D.V.S.S.SOMAYAJULU,J

Date : 25.03.2021 Note: L.R.Copy be marked.

KLP