Plaint should have been lodged before district poll office before moving SC

Kathmandu, July 24

Attorney General Raman Kumar Shrestha today defended the government in Bharatpur vote counting case, claiming that petitioners did not have the right to file the case.

Advocate Tulasi Pandey and a CPN-UML candidate for member of Ward No 19 of Bharatpur Metropolis, Gunjaman BK, had filed a petition at the Supreme Court, challenging the Election Commission’s decision to order re-polling in the ward after 90 ballot papers were allegedly torn by CPN-Maoist Centre representatives on May 29.

Rebutting the arguments of petitioners’ lawyers, Shrestha argued that as per Section 43 of Election Offence and Punishment Act, the plaintiff had to lodge a complaint before the election office in the district before knocking the court’s door. He cited a precedent in which the Supreme Court had quashed a similar petition, as the petitioner had approached the court without first lodging a complaint with the returning officer. He said in this case, CPN-UML mayoral candidate Devi Prasad Gyawali had lodged a complaint with the returning officer but he did not file any case in the court.

Advocate Ghanashyam Ojha, who pleaded on behalf of the Election Commission, argued that if the court invalidated the 90 torn ballot papers and  ordered the Election Commission to resume counting then that would invalidate votes cast for six others candidates. He pointed out that 90 ballot papers contained 630 votes, as each voter voted for seven candidates.

Ojha argued that the investigation team formed under Government Attorney Gita Prasad Timsina did not mention unauthorised capture because the team only had the mandate to present facts and not its opinion.

Joint Attorney Sanjiv Raj Regmi pointed out that mayoral candidate Devi Prasad Gyawali had deposed in a case filed against CPN-MC representatives who tore 90 ballot papers that it was a case of unauthorised entry. He also pointed out that no one had urged the EC to resume vote counting. He argued that the EC could order resumption of counting only when ballot papers were torn due to factors beyond anybody’s control and not when two persons intentionally tore ballot papers.

Regmi further argued that since seven ward chairs in Bharatpur Metropolitan City won with a margin of less than 90 votes re-polling should be ordered in Ward No 19 of the metropolis.

Justice Purushottam Bhandari asked Regmi to respond to petitioners’ argument that if re-polling was ordered, many such incidents would be repeated. Regmi said the government could put in place measures to prevent such incidents. He pointed out that no such incident occurred during the second phase of local polls.

A division bench of justices Om Prakash Mishra and Purushottam Bhandari is hearing the case.  The next hearing is on Thursday.