Full Judgment Text
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PETITIONER:
SURESH PRASAD YADAV
Vs.
RESPONDENT:
JAI PRAKASH MISHRA & ORS.
DATE OF JUDGMENT13/12/1974
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
ALAGIRISWAMI, A.
KRISHNAIYER, V.R.
CITATION:
1975 AIR 376 1975 SCR (3) 21
1975 SCC (4) 822
CITATOR INFO :
RF 1975 SC2117 (13)
ACT:
Election Law-Recount of Ballot papers-Court, when justified
in ordering recount.
Conduct of Election Rules, Rules 38(1) and 93(1)-Custody of
"Unused ballot papers" with District Election Officer a
post-election custody-Opening of packet and inspecting and
counting of unused ballot papers, if illegal.
HEADNOTE:
In the election from 168-Katoria Bihar Legislative Assembly
constituency, the Respondent No. 1 was declared elected
having secured 16649 votes as against 16074 polled by the
appellant. The votes rejected as invalid were 1219. The
appellant filed an election petition challenging the
election of the returned candidate on the ground that
several irregularities and illegalities were committed in
the counting of votes. The petition was resisted by the
returned candidate. The High Court framed issues, recorded
the evidence produced by the parties and held that the
allegations had not been substantiated. It declined the
request for a recount and dismissed the petition. Hence
this appeal by the petitioner.
It was contended for the appellant : (i) Four unauthorised
persons were allowed to work as Counting Supervisors at
tables 4, 5, 7 and 9 in breach of the rules and this had
vitiated the counting, (ii) When the fact, that, 50 unsigned
ballot papers relating to polling station No. 74 were in
excess of those actually polled, was brought to the notice
of the Assistant Returning Officer, he, in violation of Rule
93(i) of the Conduct of Election Rules and to cover up the
irregularity, opened that packet and inspected those unused
ballot papers; (iii) The detailed result sheet prepared
tablewise in accordance with the instructions of the
Election Commission has been deliberately suppressed to
prevent detection of mistakes and manipulations made in the
counting, and (iv) Despite protest, 600 votes were counted
twice in favour of Respondent No. 1.
Rejecting the contentions and dismissing the appeal,
HELD : The court would be justified in ordering a recount of
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the ballot papers, only where :
(1) the election-petition contains an
adequate statements of all the material facts
on which the allegations of irregularity or
illegality in counting are founded.
(2)On the basis of evidence adduced such
allegations are prima facie established,
affording a good ground for believing that
there has been a mistake in counting and;
(3) the Court trying the petition is prima
facie satisfied that the making of such an
order is imperatively necessary to decide the
dispute and to do complete and effectual
justice between the parties. [23H; 24A-B]
(i) There is not even an oblique hint in the election
petition that any unauthorised person was allowed to act as
Counting Super-visor or Counting Assistant. It was made at
the stage of final arguments in the application seeding a
recount. Questioning the Returning Officer and the
Assistant Returning officer in this regard during cross-
examination, could hardly constitute an adequate notice to
the Respondent of this new plea. That apart, neither the
petitioner nor his chief Counting Agent alleged anything of
this kind. All the four persons are Govt. Officials. The
fact that their names do not appear in Ex. 6 does not
exclude the probability of their having been appointed and
kept in reserve by a separate order or orders to act as
counting Supervisors in case of need. That such
appointments were made and a waiting list was prepared is
disclosed in the evidence of the Returning Officer, and it
receives further support from the Evidence of R.W. 18
22
and R.W. 19. The circumstances of this case fully attract
the maxim omnia praesumuntur rite esse acta, and it would be
presumed that the aforesaid four persons were rightly and
regularly appointed and admitted into the Counting Hall to
act as Counting Supervisors, by the Returning Officer. On
this score no violation of Rule 53 or any other statutory
provision has been established. [24F-H; 24A-E]
(ii) The act of the Returning Officer in opening the packet,
and inspecting and counting the unused ballot-papers found
the-rein, far from amounting to an illegality, was necessary
for the due performance of the duty enjoined on him by the
Rules. The language of Rule 93 is clear enough to indicate
that the custody of the District Election Officer or the
Returning Officer spoken of in the Rule is a postelection
custody. Indeed, in the present case, an objection was
raised that fifty unused ballot papers in the packet did not
bear the mark or signature required by Rule 38(1). The
Returning Officer was therefore, fully competent to open the
packet and inspect and count the ballot papers found
therein. [28F; C]
(iii) The absence of a detailed result-sheet showing
tablewise figures of each round of counting does not make
the verification of the figures collated in the final result
sheet drawn up in Form 20, impossible or even difficult as
such figures can always be checked with the aid of Check
Memos which contain tablewise figures of each round. [29G-H]
(iv) In the application for a recount submitted to the
Returning Officer, the appellant alleged that 600 votes
constituting one bundle, have been "recounted again". But
it was not alleged therein, even in an embryonic form, that
600 uncounted votes in bundles were detected lying
underneath the table of the Assistant Returning Officer.
Such an allegation appeared for the first time in the
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election petition filed 33 days later. The original
allegation was untenable because such an excess was not
reflected in the grand total of the result sheet. The total
was correct. The result sheet falsified the subsequent
contention also which had been put forward as an
afterthought. [30F-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
208 of 1973.
From the Judgment and order dated the 25th September, 1973
of the Patna High Court in Election Petition No. 4 of
1972.
K. K. Prasad, K. K. Sinha and S. K. Sinha for the
appellant.
K. P. Varma, D. P. Mukherjee and D. Goburdhan for
respondent No. 1.
U. S. Prasad for respondent No. 3.
The Judgment of the Court was delivered by
SARKARIA, J. Election from 168-Katoria Bihar Legislative
Assembly Constituency took place in March, 1972. The poll
was held on March 11, 1972 and the votes were counted on
March 12, 1972. Respondent No. 1 herein, an independent
candidate, %-as declared elected having secured 16649 votes
as against 16074 polled by the appellant, a nominee of
Indian National Congress (R). There were three other
candidates (Respondents 2 to 4) who secured 2347, 8001 &
1542 votes respectively. The votes rejected as invalid,
were 1219.
On April 14, 1972, the appellant filed an election petition
under the Representation of the People Act, 1951 challenging
the election of the returned candidate on the ground that
several irregularities and illegalities were committed in
the counting of votes.
The petition was resisted by the returned candidate. The
High Court framed issues, recorded the evidence produced by
the parties
23
and held that the allegations had not been substantiated.
It declined the request for a recount and dismissed the
petition. Hence this appeal by the petitioner.
Mr. Prasad, learned Counsel for the appellant contends that
the following irregularities/illegalities in the counting
had been established :
(1) Four unauthorised persons, viz., Ajudhya
Prasad Singh, Q. M. Zaman, Parvez Ahmed
and Radhey Sham Sah were allowed to work as
Counting Supervisors at tables 4, 5, 7 and 9
in breach of the rules, and this had vitiated
the counting.
(2) In the first round of counting at table
No. 4 in the box relating to polling station
No. 74, Madhopur U.P. School, 50 unsigned
ballot papers were found in excess of those
actually polled. When this was detected and
brought to the notice of the Assistant
Returning officer, he, in violation of Rule
93(1) of the Conduct of Election Rules (for
short, called the Rules) and to cover up the
irregularity, opened that packet and inspected
those unused ballot papers.
(3) The detailed result-sheet which was
inter alia prepared tablewise, in accordance
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with the instructions of the Election
Commission, has been deliberately suppressed
to prevent detection of mistakes and
manipulations made in the counting.
(4) About 600-700 uncounted ballot papers in
bundles were kept below his table by the
Assistant Returning Officer. In the final
round of counting, despite protest, 600 votes
were counted twice, in favour of Respondent
No. 1. That was why the petitioner who at the
end of the third round was leading by a margin
of 2205 votes, was shown having lost by 575
votes to Respondent No. 1, notwithstanding the
fact that in the last round there were only
3800 ballot papers to be counted.
Before dealing with these contentions, we may recall, what
this Court has repeatedly said, that an order for inspection
and recount of the ballot papers cannot be made as a matter
of course. The reason is two-fold. Firstly such an order
affects the secrecy of the ballot which under the law is not
to be lightly disturbed. Secondly, the Rules provide an
elaborate procedure for counting of ballot papers. This
procedure contains so many statutory checks and effective
safeguards against trickery mistakes and fraud in counting,
that it-can be called almost fool-proof. Although no, hard
and fast rule can be laid down, yet the broad guidelines, as
discernible from the decisions of this Court, may be
indicated thus :
The Court would be justified in ordering a recount of the
ballot papers, only where :
(1) the election-petition contains an
adequate statements of all the material facts
on which the allegations of
24
irregularity or illegality in counting are
founded;
(2). On the basis of evidence- adduced such
allegations are believing that there has been
a mistake in counting prima facie established,
affording a good ground for and
(3) the Court trying the petition is prima
facie satisfied that the making of such an
order is imperatively necessary to decide the
dispute and to do complete and effectual
justice between the parties.
The contentions advanced in this case are to be tested in
the light of these principles.
Since, on the whole, we agree with the findings and the
conclusion of the court below, we will confine the
discussion to the broad features of the case and the legal
aspects of the contentions canvassed before ’US.
The first contention is that four unauthorised persons were
allowed to act as Counting Supervisors at tables Nos. 4, 5,
7 and 9. The argument proceeds that the list of all the
persons who were appointed as Counting Supervisors/Counting
Assistants, was summoned from the office of the District
Election Officer, and in response thereto, the list Ex. 6,
has been produced. It is argued that since the names of
Ajudhya Prasad Singh, Q. M. Zaman, Parez Ahmed and Radhey
Sham Sah do not find mention in Exh. 6, they were never
appointed to act a,-, Counting Supervisors. In this
connection, reference has been made to the application filed
on April 14, 1972, by the petitioner for summoning
documents, the list Ex. 6, and the Check Memos (Ex. C/3,
Ex. C/4, Ex. C/6 and Ex. C/8). The Check Memos show that
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the aforesaid persons actually supervised the counting at
tables Nos. 4, 5, 7 and 9.
It may be noted that there is not even an oblique hint in
the election petition that any unauthorised person was
allowed to act as Counting Supervisor or Counting Assistant.
Such an allegation was made for the first time in the
application, dated 3-7-1973. This application seeking a
recount was made at the stage of final arguments, after the
parties had closed their evidence. It is true that in
cross-examination the Returning Officer and the Assistant
Returning Officer were questioned by the Counsel for the
petitioner with regard to the authorisation of these persons
to act as Counting Supervisors. But that could hardly
constitute an adequate notice to the Respondent of this new
plea which was sought to be smuggled into the case in a
questionable manner at the belated stage. The Respondent
could be justified in assuming that the evidence on this
plea which was not even faintly adumberated in the petition
nor put in issue would not be looked into by the Court.
In any case at that stage the Respondent had no opportunity or
right to produce evidence to show that apart from ’the list.
Exh. 6, there was other record showing that the aforesaid
persons were duly appointed by the Returning Officer to act
as Counting SuperviSors.
25
Be that as it may, it has not been shown that these four
persons who took part in the counting, were unauthorised
persons. It is not disputed that the are all Government
officials. The mere fact that their names do rot appear in
Exh. 6 does not exclude the probability of their having been
appointed and kept in reserve by a separate order or orders
to act as Counting Supervisors in case of need.
That such appointments were made and a waiting list of such
appointees in reserve was prepared, is clear from the answer
that the Returning Officer (R.W. 14), Mr. Sinha, gave to a
Court question
"If an officer of this list did not turn up in
time to participate in the counting then in
his place another officer had to be appointed
from the waiting list that was maintained in
my office regarding this matter. That waiting
list contained the names of officers reserved
whose services were to be utilised in case,
any of the appointed officer did not turn up
or %--as subsequently exempted from working as
such inside the counting hall."
In reply to a further question put by the petitioner’s
Counsel, the Returning Officer reiterated
"There was a reserved list like this in my
office regarding this matter which had been
prepared under my orders."
The fact that such a list of officials in reserve was
prepared and exists receives further support from the
evidence of R.W. 18 and R.W 19 who had worked as Counting
Supervisors at tables Nos. 6 and 3. respectively.
The petitioner appeared in the witness-box as P.W. 19 on 7-
5-1973. Even then he did not make any allegation that any
unauthorised persons had been admitted into the Counting
Hall. His Chief Counting Agent who appeared as P.W. 13,
also did not allege anything of this kind. The
circumstances of this case fully attract the maximum omnia
praesumuntur rite esee acta, and it would be presumed that
the aforesaid four persons were rightly and regularly
appointed and admitted into the Counting Hall to act as
Counting Supervisors, by the Returning Officer. On this
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score no violation of Rule 53 or any other statutory
provision has been shown.
Now we turn to the second contention of Mr. Prasad. The
argument is that at the first round of counting in the box
of Polling Station No. 74 (Madhopur), fifty unsigned ballot
papers were found in excess of those polled. This
irregularity, it is submitted, was brought to the notice of
the Returning Officer by Prof. Yadav, the Chief Counting
Agent of the appellant, but to-no avail.
Part I of Ex. 4 is the Ballot Paper Account sent by the
Presiding Officer of Polling Station No. 74. Its Part 11
contains the result of the initial counting of those ballot-
papers at table No. 4. In Part 1, in column No. 2(a), the
number of unused ballot papers is shown as 397, and in
column 3, the number of ballot papers issued to voters is
given as 323. In Part 11, column 1, the total number of
ballot papers found
26
in the ballot box used at the polling station, is entered as
373, and in column 2, captioned Discrepancy, if any etc.’,
it is written "Found fifty excess including one ballot paper
unsigned". The entries in columns 1 and 2 of Part II
purport to bear the signature of the Counting Supervisor, R.
Shyam Sah who was not examined by either side.
It is common ground that when this discrepancy was brought
to the notice of the Assistant Returning Officer and the
Returning Officer, the sealed packet of the unused ballot
papers was opened and the papers were counted. The result
of that count is to be found noted on the back of Ex. 4 by
the Assistant Returning Officer, thus :
"On verification by counting the actual number
of unused ballot-papers by opening the
statutory packet in presence of the Returning
Officer and the candidates,/agents, it was
found that only 347 unused ?) ballot papers
have been returned. This settles the
discrepancy in the ballot paper account."
Under it is the endorsement of the Returning Officer to the
effect "This was done by (A.R. O?) in my presence."
The Assistant Returning Officer stated in the witness-stand
as R.W. 13, that in the Ballot paper Account, the total
number of unused ballot-papers was wrongly shown as 397,
while it should have been 347, which was the actual number
of ballot-papers found in the packet. Thus, the physical
verification revealed that this apparent discrepancy did not
actually exist.
The court below has accepted the genuineness of the
endorsements of the Assistant Returning Officer (R.W. 13)
and the Returning Officer (R.W. 14) on Ex. 4 and the
evidence of those officers in preference to the, interested
statements of the Counting Agent (P.W. 9) and the Chief
Counting Agent (P.W. 13) of the petitioner. It has also
found that only one unused ballot-paper was found unsigned,
and not fifty. We have no good reason to differ from those
findings.
Indeed the main burden of the arguments of Mr. Prasad, is
that the Assistant Returning Officer/Retarning Officer was
not competent to open the packet of unused ballot-papers and
inspect the same as such a course was expressly forbidden by
Rule 93 (1) of the Rules. It is stressed that this
illegality vitiating the counting, was itself a good ground
for ordering a recount.
Rule 93 reads
"Production and inspection of election
papers.-
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(1) While in the custody of the district
election officer or, as the case may be, the
returning officer-
(a) the packets of unused ballot papers with
counterfoils attached thereto;
(b) the packets of used ballot papers
whether valid, tendered or rejected;
27
(c) the packets of the counterfoils of used
ballot papers;
(d) the packets of the marked copy of the
electoral roll or, as the case may be, the
list maintained under sub-section (1) or sub-
section (2) of section 152; and
(e) the packets of the declaration by
electors and the attestation of their
signature;
shall not be opened and their contents shall
not be inspected by, or produced before, any
person or authority except under the order of a com
petent court.
(2) Subject to such conditions and to the
payment of such fee as the Election Commission
may direct,-
(a) all other papers relating to the
election shall be open to public inspection;
and
(b) copies thereof shall on application be
furnished.
(3) Copies of the returns by the returning
officer forwarded under rule 64, or as the
case may be, under clause (b) of sub-rule (1)
of rule 84 shall be furnished by the returning
officer, district election officer, chief
electoral officer or the Election Commission
on payment of a fee of two rupees for each
copy.
For understanding the import and object of Rule 93, it would
her appropriate to have a short and swift glance at the
scheme of them Rules.
Part V of the Rules makes provision with regard to "Counting
of Votes in Parliamentary and Assembly Constituencies." It
cover&. Rules 50 to 66. Part VI relates to "Voting at
Elections by Assembly Members and in Council
Constituencies"’. It includes Rules 67 to 70. Part VII
provides for "Counting of votes at Elections by Assembly
Members or in Council Constituencies". It contains Rules 71
to 85.
It will be, seen that Rule 93 has not been placed in any of
the Parts relating to counting of votes. It seems to have
been advisedly placed’ in Part TX captioned "Miscellaneous",
which in the serial order comes after the Parts dealing with
voting and counting of votes.
Viewed in the light of the scheme of the Rules, and its
setting, the language of Rule 93 seems to us clear enough to
indicate that the custody of the District Election Officer
or the Returning Officer spoken of in the Rule is a post-
election custody. Such an indication is available in the
words "unused ballot papers" which repeatedly occur in this
rule. The word "unused" in the context means that which
"was made available for use in the election but remained
unused in the election". Sub-rule (3) of the Rule enables
the authorities mentioned therein to issue copies of the
returns forwarded by the Returning Officer under Rule 64 or
Rule 84(1) (b). The supply of such copies will obviously be
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a post-election function.
28
Any other interpretation of Rule 93 and its scope would make
it difficult, if not altogether impossible, for the
Returning Officer to perform-the various functions and
duties enjoined by the rules at the stage of counting. This
will be clear from a reference to the other Rules. Take for
instance Rule 56 which requires that the ballot papers shall
first, be taken out from the boxes used in a constituency
and mixed together and then arranged in convenient bundles
and scrutinised. Subrule (2) of Rule 56 further requires
inter alia that if a ballot paper does not bear any mark at
all or does not bear both the mark or the signature which it
should have borne under the provisions of sub-rule (1) of
Rule 38, it shall be rejected by the Returning Officer. To
perform this duty it would be absolutely necessary for the
Returning Officer to inspect such ballot papers. Indeed, in
the present case, in ,objection was raised that fifty unused
ballot papers in the packet did not bear the mark or
signature required by Rule 38(1). The Returning Officer was
therefore, fully competent to open the packet and inspect
and count the ballot papers found therein.
Instruction 23 in the Hand Book issued by the Election Com-
mission, also indicates that R. 93(1) operates at a post-
election stage. Under this instruction, the Returning
Officer is required to seal the packets of all the papers
relating to the election, specified in Clauses (a), (b),
(c), (d) and (e) of R. 93(1) immediately after the counting
of the votes is over, with his own seal and also with that
of the Commission. After the: sealing, the packets are to
be put in a separate steel box which shall be locked with
two locks and each lock shall be sealed. Immediately after
the declaration of the election results the sealed box is to
be despatched to the District Election Officer who on
receipt of the same shall forthright deposit it in safe
custody in the Treasury under double-lock. The key of one
of the locks is entrusted to the Treasury Officer. In Union
Territories such a deposit is to be made by the Returning
officer. The secret seals of the Commission are returned
immediately after their required use. Thus, it is clear
that the custody contemplated by Rule 93(1) is the post-
election custody.
In the light of the above discussion, the conclusion is
inescapable that the act of the Returning Officer in
opening. the packet, and in inspecting and counting the
unused ballot-papers found therein, far from amounting to
an illegality, was necessary for the due performance of the
duty enjoined on him by the Rules.
Accordingly, we overrule this contention.
It is urged that the detailed result-sheet, prepared
candidatewise, table-wise and roundwise, from which figures
mentioned in the final result sheet (Exh. 7) were extracted
has been deliberately withheld to prevent detection of the
hanky panky done in the counting. Such a detailed result
sheet, it is maintained, was required to be prepared-and was
admittedly prepared-under instruction No. 17(q) in the Hand
Book for Returning Officers (1970)" issued by the Election
’commission.
The contention appears to be attractive but does not stand a
close examination.
29
Instruction 17(q) in the Hand-Book runs thus
"Side by side, the work of tabulating the
result of counting shall be done. The Check
Memos duly signed by the Returning Officer
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shall be passed on to an officer seated at a
separate table near the Returning
Officer/Assistant Returning Officer. This
officer shall fill in the result of counting
of each round of each table in Form 20. It is
desirable that a separate sheet for each round
is used for the purpose. Copies of Form 20
may be printed, cyclostyled or type-written.
The entries in the form should be made on
loose sheets prepared for the purpose. A copy
of Form 20 is at Annexure XIII."
A perusal of Form 20 prescribed under rule 56(7) of the
Rules would show that, it does not require that the final
result-sheet should be prepared tablewise, also. It is
sufficient if the final result sheet is candidate-wise and
round-wise. The final result sheet (Exh. 7) exactly
conforms to the prescribed Form 20.
The Assistant Returning Officer (R.W. 13) in cross
examination said :
"On the above table where the entries used to
be made in the result sheets from the check-
memos, those entries were made candidate-wise,
table-wise and round-wise. The figures of
total votes of the different rounds of
counting, as mentioned in this abstract result
sheet, Exh. 7, (the witness looks into it)
were not directly taken from the figures as
they found mention in the different check-
memos of the different tables of the different
rounds of counting, but from these check memos
the figures were first extracted on the
detailed result sheet giving their numbers
round-wise, candidate-wise and table-wise and
thereafter those figures were totalled round-
wise and extracted in this Exh. 7."
From the statement of R.W. 13 extracted above, it would
appear that at first a detailed result sheet in which
figures were tabulated candidatewise, tablewise and
roundwise was I prepared, and then, therefrom, all the
figures, excepting.those showing-table-wise break-up, were
carried over to the final result sheet, Exh. 7, drawn up in
the prescribed Form 20. This detailed result-sheet, though
summoned, is not forthcoming from the District Election
Officer might be, it hag been misplaced. Might be, it was
destroyed by the Counting Staff after the preparation of the
final result-sheet in the prescribed Form. Whatever be the
case, the absence of that document, does not make the
checking and verification of the figures entered in the
final result sheet, Exn. 7 impossible or even difficult.
Its preparation is not a requirement of any statutory
provision. It is prepared only as a matter of convenience
in view of the instructions of the Election Commission, by
carrying over, collating and totalling the figures from the
Check Memos containing tablewise figures of each round of
counting. It is a sort of rough intermediary tabulation
intended to facilitate the compilation of the final result-
sheet in the prescribed form. The basic figures from which
the final result-sheet, whether detailed or abstracted, are
worked out are
30
given in the Check Memos pertaining to the various counting
tables. ,Such Check Memos are available and indeed reference
to some of them namely, Exh. C/3, C/4, C/6 and C/8 was
specifically made before us. ’The correctness or otherwise
of the figures given in Ex. 7 could easily ’be verified by
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tallying the same with the aggregate of those given in the
Check Memos. Indeed, no argument has been advanced before
us that the figures given in the final result sheet, Ex. 7,
would not agree with the figures taken and totalled from
the Check Memos.
We therefore, repel this contention.
This bring us to the last contention. The argument advanced
by Mr. Prasad is that during the fourth round of counting,
600 to 700 unused and uncounted ballot papers in bundles of
25 each were detected by the petitioner’s counting agent,
Jagannath Sah, lying under the table of the Assistant
Returning Officer. Jagannath Sah protested. The Assistant
Returning Officer, however, put those uncounted ballot
papers in the lot of counted votes. P.W. 13 also, on coming
to know about it, protested against that mixing. In
support of this contention, ,Counsel has.referred to the
circumstance that at the end of the third round of counting,
the appellant was leading by a margin of 2205 votes. It is
urged, this lead of 2205 votes could not thereafter be
turned into a deficit of 575 votes when the total number of
ballot papers that remained to be counted in the last
round, was 3800 only.
Like the elusive cloud, this ground of objection, also, has
been ever changing its hue and shape. In the application
’Exh. 3, for a recount which was submitted by the petitioner
to the Returning officer ,at 7 p.m. towards the close of.
the final round of counting-all that was stated, was :
"It is respectfully submitted that recounting
of 168 Katoria Assembly Constituency be done.
Because one bundle of 600 votes have been
recounted again. All the votes be recounted."
It was not alleged therein, even in an embryonic form that
600 uncounted votes in bundles were detected lying
underneath the table of the Assistant Returning Officer.
Such an allegation, appeared for the first time in the
election petition which was filed about 33 days after the
election. What was earlier said to have been ’counted twice
over’, had now become completely ’uncounted’. What was then
alleged in Ex. 3 to have been counted on the table, has now
gone underneath the table.
The original allegation in Ex. 3 (which was repeated in the
second application, Ex. 3a, presented at 7-40 p.m.) was
manifestly untenable. because if there was double counting
of any ballot papers, the total of the votes polled should
have exceeded by the number doubly counted. No such excess
was reflected in the grand total of the final result sheet.
The total was correct. The petitioner bad no explanation as
to why the grand-total of the final result sheet did not
show an excess of 600 or any other number of ballot papers.
It was mainly for this reason, that the Returning Officer
had rejected the applications of the petitioner for a
recount. That is why the petitioner has now come forward
with a changed version, invented as an after-thought.
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The final result sheet, Exh. 7, falsifies his present
contention also. it shows that at the end of the third
round, the appellant was leading by a margin of 424 votes
only. There is no good reason to doubt the authenticity of
the figures given in Exh. 7. As against it, the notes, Ex. 2
Series, on which the petitioner relies for his contention
that at the end of the third round he was leading by 2205
votes, was a self-serving and wholly unreliable piece of
evidence. These notes (Exh. 2 series) were not mentioned in
the list of reliance filed along with the petition. There
is no reference to any such notes or their contents in the appli
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cations Exhs. 3 and 3a. These notes are said to have
been made by the Counting Agents of the petitioner at the
time of counting. But in the initial list submitted by the
petitioner on 30-8-1972 for summoning among others his
Counting Agents as witnesses, it was not mentioned that they
would produce any such notes. Subsequently on 28-3-1973 he
moved the court requesting that these witnesses be required
to bring their notes.
In these circumstances, the High Court was right in holding
that these notes had been subsequently brought into
existence for the purpose of this petition.
For the foregoing reasons, we are of the opinion that the
appellant has been unable to make out a good case for a
recount of the ballot papers. We dismiss his appeal. He
shall pay the costs of Respondent No. J..
V.M.K. Appeal dismissed.
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