Plea challenging Chudasma’s win in 2017 Assembly polls: ‘No malafide intention if there was any deviation’https://indianexpress.com/article/india/plea-challenging-chudasmas-win-in-2017-assembly-polls-no-malafide-intention-if-there-was-any-deviation-5621807/

Plea challenging Chudasma’s win in 2017 Assembly polls: ‘No malafide intention if there was any deviation’

Dhaval Jani, who was returning officer (RO) at Dholka during the 2017 Assembly polls, was cross-examined by the counsel of the petitioner, Congress leader Ashwin Rathod, who had lost to Chudasma by 327 votes.

Minister Chudasama had won from Dholka by 327 votes

Dhaval Jani, who was returning officer (RO) at Dholka during the 2017 Assembly polls, on Monday told the Gujarat High Court, which is hearing a petition challenging BJP minister Bhupendrasinh Chudasama, that any “if there was any deviation in the sequence of counting of results, there was no malafide intention”.

Jani was cross-examined by the counsel of the petitioner, Congress leader Ashwin Rathod, who had lost to Chudasma by 327 votes.

The third day of the cross-examination for the RO heavily relied on the CCTV footage evidence from the counting day — December 18, 2017. Percy Kavina, the counsel of the petitioner, examined Jani primarily on three instances of alleged breach of instructions of the Election Commission rules, namely regarding using mobile phone in the counting hall, sequence of counting of EVM and postal ballots, and preservation of the rejected postal ballots.

In a video footage shown at court number 41 of Justice Paresh Upadhyay, Kavina pointed out “at least three instances when the witness (Jani) was seen talking on the phone — 12:13 pm, 12:44 pm and 12:47 pm”. Jani, however, argued that that “it could have been an official call”, and later submitted an affidavit, citing, “the Election Commission’s communication on carrying of mobile phone by RO, assistant RO inside counting hall,” and clarified that “as a returning officer, there were so many jobs to be looked after that the mobile phone was with me”.

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Rathod has alleged that the then returning officer Jani didn’t consider the ballot papers in the final counting which could have changed the result in his favour, and that the RO illegally invalidated 429 votes cast through postal ballots that led to his defeat in the elections by a margin of 327 votes.

In the video footages, there was an instance when an agent of Rathod is seen making a request for recount process orally. When asked why the request was ignored, Jani said, “As per rule 63 of the counting of votes by Election Commission, a written application is to be given with reasons by or on behalf of candidate, and if that’s given, then recount is done. Since no such application was submitted, recount was not done.”

However, upon further cross-examination, Jani said, “As far as I recollect, the petitioner had given an application for recounting of VVPATs of 2-3 booths.” However, he later went on to point out that as per his March 24, 2018 written statement in response to the petition filed and submitted to the court, this request for a recount was rejected.
Kavina also examined the witness on the sequence of counting process, and pointed out material variance in his deposition vis-a-vis his written statement submitted on March 24, 2018.

According to Kavina, Jani’s written statement mentioned that he had “finished postal counting before EVM counting,” and furthermore was in violation of the EC guidelines that stipulated counting of postal ballots before EVM votes. Jani, however refuted it, saying, “As per my written statement, I had submitted that postal ballot counting had started at 8 am and EVM at 8:30 am. Nowhere, does it say that the postal ballot counting was completed.”

To clarify upon the procedural breach in terms of sequence stipulated by the EC for counting — postal ballots first and then EVM— Jani said: “As far as sequence of counting of postal ballots and EVM is concerned, there are various teams for this purpose, and all of them are trained and are properly instructed in that regard. Moreover, there is a direct involvement of the RO in this exercise. Inspite of this, if there’s any deviation in the sequence of counting of results, there was no malafide intention.”

On the issue of preservation of rejected postal ballots, Jani said that they have been preserved as per the EC’s directives. Jani, now deputy collector, has now been summoned on March 14, when he will be cross-examined by Chudasama’s counsel.