Kuldeep Kumar is being offered sweets by Chandigarh AAP councillors after he is declared the winner.
Satya Prakash
New Delhi, February 20
Setting aside the Chandigarh mayoral poll result, the Supreme Court on Tuesday declared AAP-Congress combine candidate Kuldeep Kumar the winner.
Using its plenary powers under Article 142 of the Constitution, a three-judge Bench led by CJI DY Chandrachud held that the eight votes declared invalid were validly cast in favour of Kumar, who had in fact got 20 votes against BJP candidate Manoj Sonkar's 16.
"The eight votes which were treated as invalid by making those markings...counting the eight votes for the petitioner (AAP candidate Kumar) will make him have 20 votes. We direct that the election result by the presiding officer is quashed. The AAP candidate is declared to be the winner of the Chandigarh mayoral polls," the CJI said, dictating the order in an open court.
Out of 36 votes, BJP candidate Manoj Sonkar had bagged 16 against the 12 received by Kuldeep Kumar after eight votes were rejected in the January 30 polls to elect the Chandigarh mayor. However, Sonkar resigned on Sunday.
Deprecating Returning Officer Anil Masih’s conduct in unlawfully changing the results, the top court ordered initiation of criminal proceedings against him under Section 340 of the Criminal Procedure Code for ballot-tampering.
Masih "unlawfully altered the course of the mayoral election" and the statement he made before the court on February 19 was a "patent falsehood”, said the Bench which also included Justice JB Pardiwala and Justice Manoj Misra.
“Registrar Judicial is directed to issue a notice to Anil Masih, to show cause as to why steps should not be initiated against him under Section 340 of the CrPC,” it said, adding that he would have an opportunity to respond to the show cause notice.
The Bench – which had on Monday expressed serious concern over horse-trading, saying, "We are deeply concerned about horse-trading which is taking place. It’s very disturbing”, passed the order after scrutinising the ballot papers and watching the video recordings of the counting played before it.
Masih had on Monday sought to defend himself by saying the ballot papers were defaced by candidates who snatched and destroyed them and that he was separately marking the defaced ballot papers to ensure they didn't get mixed up.
“Mr Solicitor, he (Masih) has to be prosecuted. He is interfering with the election process,” CJI Chandrachud had on Monday told Solicitor General Tushar Mehta, who represented the Chandigarh Administration.
Kumar – who had challenged the mayoral election results in the Punjab and Haryana High Court – moved the top court after the high court refused to stay the results that declared BJP candidate Sonkar as the winner.
On behalf of Masih, senior counsel Mukul Rohatgi said Masih was only seen looking up at the CCTV cameras in the counting area as there was a commotion outside. "No one can do this with cameras present... There is no guilty man looking at the camera… It’s clear that the ballots were snatched by the AAP members. There are dots and some are folded...One may say anything but not to call someone a thief... It was all wrong that he looked at the camera, etc.”
Senior advocate AM Singhvi, representing Kumar, said Masih had exacerbated the ‘felony’ by repeating that before the court.
On behalf of AAP, senior counsel Gurminder Singh termed Masih's explanations as misleading. "They ask voters to fold the slips laterally... The RO explained the procedure himself... It is on video. He (Masih) is very well aware why a dot is there and he is misleading his senior counsel. He asked for it to be folded," said Singh -- who was assisted by advocate RPS Bara.
Noting that it was “simply appalled” by what had happened, an angry CJI had earlier told Mehta, “Please tell your Returning Officer that the Supreme Court is watching over him. We will not allow democracy to be murdered like this. The only thing… The great stabilising force in the country is the purity of the electoral process.”
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