ARUP KANTI DIGAR vs MITALI BAG AND ORS.

IN THE HIGH COURT AT CALCUTTA
ELECTION PETITION JURISDICTION
ORIGINAL SIDE

Present:
The Hon’ble Justice Ananya Bandyopadhyay

EP/4/2024
IA NO. GA/2/2026, GA/4/2026

ARUP KANTI DIGAR
Vs
MITALI BAG & ORS.


For the Petitioner : Ms. Rashmi Bothra

For the ECI : Ms. Anamika Pandey

Judgment on : 07.09.2026

Ananya Bandyopadhyay, J.:-


1. G.A. No. 2 of 2026 is filed by the District Election Officer, Hooghly,
seeking leave to intervene in the proceeding and directions concerning the
EVMs and VVPATs pertaining to the 29-Arambagh (SC) Parliamentary
Constituency.

2. The applicant seeks release of the VVPATs kept at the designated
warehouse at Arambagh and the defective EVMs, including the pre-poll
EVMs, kept at the ground floor of District Warehouse-II, Chinsurah, Old
Collectorate Building, for repair, reconditioning and subsequent use in
elections. The application also seeks permission, where necessary, to
segregate the machines and shift them to another designated warehouse,
including the Regional Training Centre Warehouse situated within the
same compound.

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3. The applicant places reliance upon the statutory functions of the District
Election Officer and the instructions issued by the Election Commission
of India governing the custody, maintenance, repair and deployment of
EVMs and VVPATs.
4. The applicant also refers to the order passed in E.P. No. 1 of 2019
concerning the preservation and segregation of electoral material relating
to the 28-Hooghly Parliamentary Constituency and submits that the
EVMs and VVPATs pertaining to 29-Arambagh (SC) Parliamentary
Constituency have no connection with the said election petition.
5. The distinction between the two constituencies is apparent and material.
E.P. No. 1 of 2019 relates to the election from 28-Hooghly Parliamentary
Constituency. The present application concerns electoral material
pertaining to 29-Arambagh (SC) Parliamentary Constituency.
6. The record contains another proceeding which bears directly upon the
question. E.P. No. 4 of 2024 concerns the election from 29-Arambagh (SC)
Parliamentary Constituency. The EVMs and VVPATs used in that election
therefore require examination with reference not only to the orders passed
in E.P. No. 1 of 2019 but also to the preservation requirements arising
from E.P. No. 4 of 2024.
7. An election petition brings the validity of an election before the Court. The
electoral material relating to the election under challenge may constitute
evidence in the adjudication of the dispute. Its preservation consequently
serves a judicial purpose and cannot be displaced merely by a subsequent
administrative requirement for the use of the same equipment.

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8. The statutory responsibility of the District Election Officer does not
operate in isolation. Section 20A of the Representation of the People Act,
1951 entrusts the District Election Officer with the coordination and
supervision of election-related work in the district, subject to the
superintendence, direction and control of the Chief Electoral Officer.
Section 13CC of the Representation of the People Act, 1950 places officers
engaged in electoral work under the control, superintendence and
discipline of the Election Commission during the relevant period.
9. The statutory scheme thus recognises the administrative responsibility of
the election authorities over electoral equipment. That responsibility
remains subject to a judicial direction where particular electoral material
is required to be preserved for adjudication of an election petition.
10. The pendency of an election petition cannot, however, justify the retention
of every EVM or VVPAT within the district. Preservation must relate to
identified electoral material having a connection with the election or
proceeding for which preservation is required.
11. This distinction assumes significance in the present case. The
preservation direction in E.P. No. 1 of 2019 concerns electoral material
relating to 28-Hooghly Parliamentary Constituency. E.P. No. 4 of 2024
concerns 29-Arambagh (SC) Parliamentary Constituency. The first
proceeding cannot, merely by its existence, require preservation of
electoral equipment belonging to a different constituency. The second
proceeding, however, requires preservation of the material relating to the
election which forms its subject matter.

12. The application has to be examined within these parameters.

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13. The respondents were granted repeated opportunities to file their
affidavit-in-opposition. No affidavit-in-opposition has been filed. The
matter was thereafter fixed for orders.

14. The absence of a counter-affidavit assumes significance while considering
the factual assertions made by the applicant regarding the location,
identity and proposed administrative treatment of the machines. No
contrary factual case has been placed before the Court. That
circumstance does not, however, permit release of electoral material
which is required to remain preserved for the purposes of E.P. No. 4 of
2024.
15. The identity of the particular machines is therefore required to be
determined before any question of their release can arise.
16. The description of an EVM as defective does not take it outside the scope
of preservation. A defect in the machine may itself form part of the factual
material relevant to an election dispute. A defective EVM pertaining to the
election under challenge in E.P. No. 4 of 2024 shall consequently remain
preserved.
17. The same principle applies to the VVPATs pertaining to that election.
Their proposed deployment in a subsequent election cannot justify their
release while they remain material which may be required for adjudication
of E.P. No. 4 of 2024.
18. The position is different where a particular EVM or VVPAT is established,
upon identification, not to have formed part of the election under
challenge in E.P. No. 4 of 2024 and not to be subject to preservation
under E.P. No. 1 of 2019 or any other judicial proceeding.

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19. Such electoral equipment cannot be retained indefinitely merely because
it happens to be stored together with machines which require
preservation.

20. The District Election Officer shall, therefore, undertake an exercise of
identification and segregation of the EVMs and VVPATs referred to in the
application. A complete inventory shall be prepared recording the
identification particulars of each machine, the constituency and polling
station to which it relates, the election in which it was used and its
present place of storage.
21. The machines forming part of the electoral material of the election which
is the subject matter of E.P. No. 4 of 2024 shall continue to remain
preserved. They shall not be opened, repaired, altered, substituted,
dismantled or deployed in any subsequent election without further order
permitting such course.
22. The electoral material relating to 28-Hooghly Parliamentary Constituency
which remains subject to the orders passed in E.P. No. 1 of 2019 shall
likewise continue to be preserved in accordance with those orders.
23. A transfer from one designated storage facility to another, where required
for proper custody, shall not be treated as a release of the preserved
material. The District Election Officer may undertake such transfer,
including to District Warehouse-II or the Regional Training Centre
Warehouse, provided that the identification, seals, custody and
evidentiary integrity of the machines remain intact and the prescribed
procedure of the Election Commission of India is followed.

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24. Upon completion of identification and segregation, an EVM or VVPAT
which is found to have no connection with E.P. No. 4 of 2024, E.P. No. 1
of 2019 or any other proceeding requiring its preservation may be dealt
with by the election authorities in accordance with the applicable
instructions of the Election Commission of India.
25. The exercise shall be properly documented. The identification particulars
and movement of every machine shall be recorded. Where the applicable
instructions require notice to, or participation of, the authorised
representatives of political parties or candidates, such requirement shall
be observed. Videography, sealing and other prescribed safeguards shall
be adopted wherever applicable.
26. The prayer for blanket release of the EVMs and VVPATs pertaining to 29-
Arambagh (SC) Parliamentary Constituency cannot be granted. The
machines forming part of the electoral material of the election under
challenge in E.P. No. 4 of 2024 shall remain preserved.
27. The applicant shall, however, be entitled to undertake the exercise of
identification and segregation so that electoral equipment having no
connection with the pending election proceedings is not retained merely
by reason of its physical proximity to the preserved material.
28. Leave is granted to the District Election Officer, Hooghly, to intervene in
the proceeding for the limited purpose of seeking and implementing
directions concerning the EVMs and VVPATs referred to in G.A. No. 2 of
2026.
29. G.A. No. 2 of 2026 is disposed of with the directions contained herein .

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30. Nothing contained in this order shall affect any direction concerning
preservation of electoral material passed in E.P. No. 1 of 2019 or E.P. No.
4 of 2024.

31. There shall be no order as to costs.
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32. Next date be fixed on 16 November, 2026 for hearing of EP/4/2024.
(Ananya Bandyopadhyay, J.)

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