Vijay Bahadur vs. Sunil Kumar

2025 INSC 332
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NO.14311 OF 2024




VIJAY BAHADUR … APPELLANT(S)


VERSUS


SUNIL KUMAR & ORS. … RESPONDENT(S)




J U D G M E N T




SANJAY KAROL, J.




PRELUDE


“ At the bottom of all the tributes paid to democracy is the
little man, walking into the little booth, with a little pencil,
making a little cross on a little bit of paper—no amount of
rhetoric or voluminous discussion can possibly diminish the
overwhelming importance of that point .”
Signature Not Verified
- Winston Churchill -
Digitally signed by
NEETU KHAJURIA
Date: 2025.03.06
17:59:34 IST
Reason:
House of Commons,
31 October 1944
CA No.14311/2024 Page 1 of 26



1 th
1. In the famous Gettysburg Address delivered on 19
November, 1863, President Abraham Lincoln uttered possibly the
best description of democracy there ever would be –


“government of the people, by the people, for the
people”



People, unquestionably, are at the center of this conception.
The Indian Constitutional vision exemplifies this position. Right
from the inception of democratic rule, universal adult franchise has
found its place in our system of governance. Each election
upholding these cherished values of public participation, equality
and integrity of the vote is a testament to the vision of the founders.
Each and every citizen, when it comes to choosing representatives
in the parliamentary system, is indeed equal, when in other scenarios
they may not be so, for a variety of reasons - class and caste divisions
that are still deeply entrenched, gender inequality, lack of awareness
and opportunities for disabled persons, etc.

This momentary equality assumes further importance as it
signifies the achievability of the aspiration of equality for all through
constitutional mechanisms. Granted that equality in other spheres

1
Abraham Lincoln Presidential Library and Museum-
https://presidentlincoln.illinois.gov/gettysburg
CA No.14311/2024 Page 2 of 26


cannot only be a product of constitutional action, and have to be
accompanied by social change, but nonetheless, the strength of
constitutional action is manifested thereby.

A.M Ahmadi, CJI, writing for a Constitution Bench in T.N
2
Seshan v. Union of India , while concerned with an Ordinance
promulgated by the President of India being Ordinance (No. 32 of
1993) entitled “The Chief Election Commissioner and other
Election Commissioners (Conditions of Service) Amendment
Ordinance, 1993” to amend “The Chief Election Commissioner and
other Commissioners (Conditions of Service) Act, 1991” challenged
by the then incumbent Chief Election Commissioner, observed :

More recently, this Court in Anoop Baranwal v. Union of
3
India , the majority speaking through K.M Joseph J., observed :


“124. Unlike demands of a formal democracy, the
hallmark of a substantive democracy and if we may say
so, a liberal democracy must be borne in mind.

2
(1995) 4 SCC 611
3
(2023) 6 SCC 161
CA No.14311/2024 Page 3 of 26


Democracy is inextricably intertwined with power to the
people. The ballot, is more potent than the most powerful
gun. Democracy facilitates a peaceful revolution at the
hands of the common man if elections are held in a free
and fair manner. Elections can be conflated with a non-
violent coup capable of unseating the most seemingly
powerful governing parties, if they do not perform to
fulfil the aspirations of the governed. Democracy is
meaningful only if the sublime goals enshrined in the
Preamble to the Constitution receive the undivided
attention of the rulers, namely, social, political and
economic justice. The concepts of liberty, equality and
fraternity must not be strange bedfellows to the ruling
class. Secularism, a basic feature of the Constitution
must inform all actions of the State, and therefore,
cannot be spurned but must be observed in letter and
spirit. Democracy can be achieved only when the
governing dispensation sincerely endeavours to observe
the fundamental rights in letter and spirit. Democracy
also, needless to say, would become fragile and may
collapse, if only lip service is paid to the rule of law.”

(Emphasis supplied)

2. Although there exists copious amounts of literature on a few
of the topics touched upon in the preceding paragraph, i.e.,
democracy, free and fair elections, constitutional governance,
fundamental rights, etc., this brief forerunner became important
given the context in which this appeal arises.


THE APPEAL
3. Before us are, primarily, two persons, opponents in the
electoral process, the appellant, the vanquished and the respondent,
CA No.14311/2024 Page 4 of 26


th
the victor. Challenged herein is the judgment and order dated 27
January 2023 passed by the High Court of Judicature at Allahabad
in Writ-C No.35734 of 2022, under Article 226 of the Constitution
of India.

4. By way of background, it shall suffice to record that the
Government of the State of Uttar Pradesh declared election for the
position of ‘ Gram Pradhan ’ for the village Chaka @ Chak,
Saidabad, Tehsil Handia, in the District of Prayagraj, vide
th
notification dated 17 March 2021. Voting therefor was to take
nd rd
place on 2 and 3 of May 2021. The genesis of the appellant’s
discontent was the inconsistency between the Presiding Officer’s
statement to him that in polling booths 43, 44 and 45 a total of 1194
votes were cast, and the final tally given under ‘Form 46’ which
showed a total of 1213 votes cast in the said booths.


PROCEEDINGS LEADING UPTO THIS APPEAL

5. Aggrieved by this difference of votes, and, obviously, the end
result, wherein Pradhan’s seat remained 37 votes too far out of his
reach, suspecting there to be a foul play, the appellant wrote to the
Election Officer, alleging that votes in his favour were cancelled by
the persons deputed at table Nos.13, 14 and 15 at Nyay Panchayat
CA No.14311/2024 Page 5 of 26


Utarav, in connivance with respondent No.1. It was, thus, requested
of the Election Officer that he may affect a recount of the votes of
booth Nos.43, 44 and 45. This application was not entertained by
the Officer.

5.1 The appellant then preferred Election Petition No.0210
of 2021 titled analogously to this appeal. The substance of the
allegations made/grievance agitated before the Sub-Divisional
Magistrate in an application under Section 12-C(1) of the U.P.
4
Panchayat Raj Act, 1947 was captured in paragraphs 7 to 10
thereof. The same is reproduced hereunder : -

“7. That presiding officer/election officer, after voting
was completed; prior to seal of ballot box, orally
informed the petitioner that for the post of Pradhan at
polling booth 43, 44 and 45, total 1194 votes have been
casted. Although as per form 46, total 1213 votes were
casted. It is clear from the above said counting that 19
(Nineteen) ballot papers were prepared and have been
inserted in ballot box bringing it from outside. Hence this
19 (Nineteen) votes are illegal and liable to be cancelled.
Ballot box was not sealed before the agent of petitioner.

8.That as per the form 46, at polling booth no 43, total21
votes, at polling booth no 44, total 20 votes and at polling
booth no. 45, total 20 votes, have been cancelled. Correct
fact is this that Election officer intentionally in order to
extend benefit to defendant Sunil, has cancelled the
votes casted in favor of petitioner. As to why election
officer did so, he is the best person to reply the same.

4
Hereinafter, ‘the Act’
CA No.14311/2024 Page 6 of 26


9. That during counting, counting officer declared that
at polling booth no 43, petitioner Vijay Bahadur got 233
votes, defendant Sunil Kumar got 231 votes, defendant
Santosh 9, and defendant Vinod got 8 votes and 20 ballot
papers were declared invalid. At polling booth no 44,
petitioner Vijay Bahadur got 148 votes, defendant Sunil
Kumar got 184, defendant Santosh 23, and defendant
Vinod got 2 votes and 20 ballot papers were declared
invalid. At polling booth no 45, petitioner Vijay Bahadur
got 133 votes, defendant Sunil Kumar got 136, defendant
Santosh 43, and defendant Vinod got 12 votes and 10
ballot. papers were declared invalid. Although as per
form 46, at polling booth no 43, total 21 votes have been
declared invalid and in polling booth no 45, defendant
Sunil Kumar shown have got 136 votes. From above
statement, this finding is clear that election officer who
have shown number of votes in form no 46, they are
different from the number of votes declared.”

5.2 By way of evidence, the testimonies of the appellant,
one Nitesh Kumar and Vinod Kumar (one of the contestants in
the Election) were recorded along with that of respondent No.1
herein, either by way of oral testimony or statement given.

5.3 The appellant sought information under the Right to
Information Act, 2005, seeking the ‘Matpatra Lekha’ and
Diary of the Presiding Officer. The competent authority
th
directed the Assistant Election Officer vide order dated 11
August, 2022 to provide him the documents as sought.
th
However, in his reply dated 30 August, 2022, the Assistant
CA No.14311/2024 Page 7 of 26


Election Officer said that the documents could not be located
despite their best efforts and, therefore, could not be provided.

5.4 The Learned Sub-Divisional Magistrate, having
st
considered the evidence on record passed order dated 31
October 2022, acceding to the appellant’s prayer and directing
a recount of the votes cast at Booth Nos.43, 44 and 45.
Relevant extract thereof is as below :

“On the basis of the written arguments submitted by the
petitioner and the oral arguments advanced by the
defendant, I am in conclusion that there are sufficient
grounds to get the recounting done by allowing the
present petition. I find it fit in law to get the recounting
done on the post of Gram Pradhan of Gram Panchayat
Chaka @ Chakpurandare for maintaining the belief of
the petitioner on the judicial system and the counting
process. Thus, on the basis of affording opportunity of
sufficient hearing to the petitioner and defendant No.1
and statement and the evidence submitted by the parties,
the arguments of the learned counsel for the parties, the
arguments of the learned counsel for the parties
(S/Sh.Vishnu Pandey and Ashok Kumar Mishra learned
counsel for the petitioner) and the judgment produced
and the arguments of S/Sh. K.K. Shukla and O.P.
Mishra, learned counsel for defendant No.1 advanced
intellectually on Issue Nos. 1 to 5, and the submissions
and evidence submitted by defendant No.1 on Issue
Nos.6, 7, 8, and on the basis of observations made on the
issues in totality, I find the petition filed by the
petitioner, the arguments advanced by the learned
counsel for the petitioner, and the judgments liable to be
allowed in this election petition. I find sufficient
grounds to get the recounting done by allowing the
CA No.14311/2024 Page 8 of 26


election petition. As after uploading the proceeding/
order of disposing of the petition finally at the Revenue
Court Management System, it would not be possible to
upload the recounting result, in such a circumstance this
interlocutory order is being uploaded.

Hence, it is ordered that while allowing the election
petition filed against Election Result dated 02.05.2021
(Proforma-46) of Gram Pradhan (Gram Panchayat) of
Gram Panchayat Chaka @ Chakpurandar of Vikas
Khand Saidabad under the Third Phase Panchayat
Election – 2021, the order of recounting passed…”


5.5 Aggrieved by this order, respondent No.1 herein filed
a revision bearing particulars of Election Revision No.146 of
th
2022. The same was dismissed by order dated 5 November
2022.

5.6 It is, at this stage, that the writ petition, in which the
judgment impugned herein was passed, came to be filed.

6. In the writ petition, respondent No.1 herein, argued inter alia :

(a) The challenge on the part of respondent No.1,
(appellant herein) to Form 46 is unfounded for there is no
irregularity in the functions carried out by the election officer.
(b) The petitioner (respondent herein) has, in support of
his position of the actions of the Election Officer being
correct and well-founded, has produced affidavits of certain
CA No.14311/2024 Page 9 of 26


persons declaring that there indeed had been no irregularity
to taint the sanctity of the election.
(c) The 51 votes declared illegal by the Election Officer
has been so done after due inspection. The Sub-Divisional
Magistrate who was arrayed as respondent No.7 had, despite
the Election Officer having done so, in accordance with law,
ordered a recount.
(d) No documentary evidence had been placed on record
by the respondent or those who submitted affidavits in
support of their position and neither did the Magistrate
consider the content of the affidavit produced by those in
support of the petitioner while passing the order of recounting
of votes.
(e) The order passed by the Sub-Divisional Magistrate is
based on vague and indefinite allegations, and is further, non-
speaking as it does not record any independent finding.
(f) The principle of the ‘ secrecy of the ballot ’ stood
compromised by the order of recount.

It was, thus, prayed for that a writ of certiorari be issued,
th
quashing the order of recount and the further order dated 7
th
November 2022, fixing 29 November 2022 as the date for the
recount. Further, it was prayed that a writ in the nature of mandamus
CA No.14311/2024 Page 10 of 26


be issued to the respondent No.1, directing him not to interfere in
the work of the petitioner as ‘Gram Pradhan’.

7. The writ petition making the arguments as above came to be
heard by a learned Single Judge of the High Court. It is this
judgment and order which is challenged in this appeal. The relevant
extract of the impugned judgment is as under :

“15. The above material finding is based on without
inspection of Proforma-46 as the Election Tribunal
despite power has not called the documents for
verification in regard to verify allegations of difference
between the number of votes cast and the number of vote
counted. The above finding is completely based on an
oral assertion as mentioned in the election petition as
well as the impugned order that the Election Officer
orally communicated a different number of total votes
cast. The petitioner has not submitted any document I
support of their assertion made in the election petition
though the assertion made in election petition appears to
be sufficient but in absence of any supporting documents
are not sufficient to pass any order of recounting as
observed above …”


THE CASE OF THE PARTIES

8. Aggrieved by the judgment and order, as aforesaid, the
appellant has approached this Court under Article 136 of the
Constitution of India. By way of this special leave petition, it is
urged that -
CA No.14311/2024 Page 11 of 26



(a) The decision of the Sub-Divisional Magistrate was in
accordance with the judgment of this Court in Ram Sewak
5
Yadav v. Hussain Kamil Kidwai & Ors . That apart, such an
order is justified in view of the averment made in paras 7, 8, 9,
10 and 12 in the Election Petition as also supported by oral
evidence.
(b) The principle of secrecy of the ballot is not
compromised by the order of the Sub-Divisional Magistrate
and as such, the order of the High Court is erroneous.

9. It is further submitted that :-
(a) An order passed under Section 12-C of the Act is final
and not open to challenge under Article 226 of the Constitution
of India. This is in view of Article 243-O of the Constitution,
which postulates a bar in respect of interference by the Courts
in electoral matters.
(b) The above-named Act provides for a remedy against an
order passed therein, i.e., Section 12-C (6) of the Act by way
of revision.
(c) As to when an order for inspection/recounting of ballot
papers can be passed stands clarified by the Full Bench of the

5
AIR 1964 SC 1249
CA No.14311/2024 Page 12 of 26


6
High Court in Ram Adhar Singh v. District Judge, Ghazipur
which followed the judgments of this Court in Hussain Kamil
7
Kidwai (supra) and Bhabhi v. Sheo Govind which were
passed interpreting the provisions of the Representation of the
8
People Act, 1951 . In view of the above, it is submitted that
the High Court erred in entertaining a writ petition against an
order, which was interlocutory in nature, aimed at doing
complete justice inter se the parties.
(d) The Act does not provide directly for the power of
recount but the same is implicit, having regard to the powers
contained in Section 12-C and the same is to be exercised as
per the principles laid down in various decisions of this Court.
(e) The averments made in the election petition, more
specifically paragraphs 7 to 10 are prima facie correct, and the
High Court erred in setting aside the order of recount without
adverting to findings of improper acceptance and rejection of
ballot papers, returned by the Sub-Divisional Magistrate.

10. The case of the respondent, as can be understood from the
record is as follows:


6
1985 SCC OnLine All 246
7
(1976) 1 SCC 687
8
Hereafter “RPA”
CA No.14311/2024 Page 13 of 26


(a) The appellant has not produced any document
whatsoever to support his claims/assertions and, therefore, the
order of recount is on insufficient basis;
The secrecy of ballots should not be violated on flimsy
grounds that are frivolous, vague and indefinite.
(b) The respondent, in favour of the stand taken by the
Election Officer has filed affidavits of certain persons attesting
to the absence of irregularity in the process adopted. Vinod
Kumar, who has submitted an affidavit in favour of the recount
supporting the case of the petitioner herein was, in fact, not
present at the polling booth since he was scheduled to enter into
matrimony on that date. One Ajay Kumar, who was the agent
of the above-said Vinod Kumar at the polling booth, has on
oath, stated that no irregularity had been committed by the
Election Officer;
(c) Given the above, Vinod Kumar’s affidavit, was
therefore, ostensibly false which in itself is a punishable
offence. The High Court, hence, in the absence of any
documentary evidence to support the oral submissions made by
the appellant herein, rightly set aside the order of recount.

CA No.14311/2024 Page 14 of 26


11. The question that flows from having heard the learned counsel
for the parties apropos the submissions recorded supra, for the
consideration of this Court is whether the Sub-Divisional
Magistrate, was justified in ordering a recount of the votes cast.

ANALYSIS AND FINDINGS
12. The U.P. Panchayat Raj Act, 1947, under Section 12 provides
for the constitution of Gram Panchayats, the manner of election
thereto, allowances of the elected members, superintendence of the
elections, taking of vehicles and premises for the purpose of
elections, procedure to question the elections, etc. We are concerned
here with Section 12-C which concerns the filing of applications
questioning the elections, since it is this provision of law, to which
the appellant herein took recourse. It reads:
“12-C. Application for questioning the elections – (1)
The election of a person as Pradhan 2 [ *] or as
member of a Gram Panchayat including the election of a
person appointed as the Panch of the Nyaya Panchayat
under Section 43 shall not be called in question except
by an application presented to such authority within such
time and in such manner as may be prescribed on the
ground that –
(a) the election has not been a free election by reason
that the corrupt practice of bribery or undue influence
has extensively prevailed at the election, or
(b) that the result of the election has been materially
affected –
CA No.14311/2024 Page 15 of 26


i- by the improper acceptance or rejection of any
nomination or;
ii- by gross failure to comply with the provisions of this
Act or the rules framed thereunder.

(2) The following shall be deemed to be corrupt practices
of bribery or undue influence for the purposes of this
Act.
(A) Bribery, that is to say, any gift, offer or promise by
a candidate or by any other person with the connivance
of a candidate of any gratification of any person
whomsoever, with the object, directly, or indirectly of
including –
(a) a person to stand or not to stand as, or withdraw from
being, a candidate at any election; or (b) an elector to
vote or refrain from voting at an election; or as a reward
to –

i- a person for having so stood or not stood or having
withdrawn his candidature; or
ii- an elector for having voted or refrained from voting.

(B) Undue influence, that is to say, any direct or indirect
interference or attempt to interfere on the part of a
candidate or of any other person with the connivance of
the candidate with the free exercise of any electoral
right; Provided that without prejudice to the generality
of the provisions of this clause any such person as is
referred to therein who –

i- threatens any candidate, or any elector, or any person
in whom a candidate or any elector is interested, with
injury of any kind including social ostracism and ex-
communication or expulsion from any caste or
community; or
ii- induces or attempts to induce a candidate or an elector
to believe that he or any person in whom he is interested
will become or will be rendered an object of divine
displeasure or spiritual censure, shall be deemed to
CA No.14311/2024 Page 16 of 26


interfere with the free exercise of the electoral right of
such candidate or elector within the meaning of this
clause.

(3) This application under sub-section (1) may be
presented by any candidate at the election or any elector
and shall contain such particulars as may be prescribed.
Explanation – Any person who filed a nomination paper
at the election whether such nomination paper was
accepted or rejected, shall be deemed to be a candidates
at the election.

(4) The authority to whom the application under sub-
section (1) is made shall in the matter of –
i- hearing of the application and the procedure to be
followed at such hearing;
ii- setting aside the election, or declaring the election to
be void or declaring the applicant to be duly elected or
any other relief that may be granted to the petitioner,
have such powers and authority as may be prescribed.

(5) Without prejudice to generality of the powers to be
prescribed under subsection (4) the rules may provide for
summary hearing and disposal of an application under
sub-section (1).

[(6) Any party aggrieved by an order of the prescribed
authority upon an application under sub-section (1) may,
within thirty days from the date of the order, apply to the
District Judge for revision of such order on any one or
more the following grounds, namely –
(a) that the prescribed authority has exercised a
jurisdiction not vested in it by law;
(b) that the prescribed authority has failed to exercise a
jurisdiction so vested;
(c) that the prescribed authority has acted in the exercise
of its jurisdiction illegally or with material irregularity.

CA No.14311/2024 Page 17 of 26


(7) The District Judge may dispose of the application for
revision himself or may assign it for disposal to any
Additional District Judge, Civil Judge or Additional
Civil Judge under his administrative control and may
recall it from any such officer or transfer it to any other
such officer.

(8) The revising authority mentioned in sub-section (7)
shall follow such procedure as may be prescribed, and
may confirm, vary or rescind the order of the prescribed
authority or remand the case to the prescribed authority
for re-hearing and pending its decision pass such interim
orders as may appear to it to be just and convenient.

(9) The decision of the prescribed authority, subject to
any order passed by the revising authority under this
section, and every decision of the revising authority
passed under this section, shall be final.]”


13. Since the question involved in this appeal appertains to recount
of votes, let us consider the law on this aspect - as has been laid
down through various pronouncements of this Court, in the context
of various legislations.

13.1 A Constitution Bench of this Court in Hussain Kamil
Kidwai (supra), in the context of the 1962 Lok Sabha elections
to the Barabanki Constituency, wherein the appellant before
this Court had been declared elected, and the respondent who
was one of the contestants in the election, was aggrieved and
his grievance was heard and eventually allowed by the High
CA No.14311/2024 Page 18 of 26


Court, observed that an order for inspection of ballot papers is
not to be made as a matter of course and it is only upon the
fulfillment of certain conditions that the same can be permitted.
The relevant extract is :-

“ 6. An order for inspection may not be granted as a
matter of course : having regard to the insistence upon
the secrecy of the ballot papers, the court would be
justified in granting an order for inspection provided two
conditions are fulfilled:
( i ) that the petition for setting aside an election contains
an adequate statement of the material facts on which the
petitioner relies in support of his case; and
( ii ) the Tribunal is prima facie satisfied that in order to
decide the dispute and to do complete justice between
the parties inspection of the ballot papers is necessary.
But an order for inspection of ballot papers cannot be
granted to support vague pleas made in the petition not
supported by material facts or to fish out evidence to
support such pleas. The case of the petitioner must be set
out with precision supported by averments of material
facts. To establish a case so pleaded an order for
inspection may undoubtedly, if the interests of justice
require, be granted. But a mere allegation that the
petitioner suspects or believes that there has been an
improper reception, refusal or rejection of votes will not
be sufficient to support an order for inspection.”


9
13.2 In Vadivelu v. Sundaram , a three-Judge Bench of this
Court while concerned with a dispute regarding the election for
the post of President of Vannavalkudi Village Panchayat,

9
(2000) 8 SCC 355
CA No.14311/2024 Page 19 of 26


Pudukkottai District in Tamil Nadu, which was governed by
the Tamil Nadu Panchayats (Elections) Rules 1995, held :

10
Yadav v. Jai Prakash Mishra , recorded three scenarios when
recount would be justified. The relevant extract of the
judgment is as under:

“ 6. The Court would be justified in ordering a recount of
the ballot papers only where:


10
(1975) 4 SCC 822
CA No.14311/2024 Page 20 of 26


( 1 ) the election-petition contains an adequate statement
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.”


11
13.4 In Beli Ram Bhalaik v. Behari Lal Khachi , wherein
the subject matter of dispute was the election of the respondent
therein from the ‘6-Kumarsain Assembly Constituency’ of the
State of Himachal Pradesh , and so, was obviously governed by
the RPA , considered a number of precedents including
Hussain Kamil Kidwai (supra), the Court observed :
“ 45. ... Since an order for a re-count touches upon the
secrecy of the ballot papers, it should not be made lightly
or as a matter of course. Although no cast-iron rule of
universal application can be or has been laid down, yet
from a beadroll of the decisions of this Court, two broad
guidelines are discernible: that the court would be
justified in ordering a re-count or permitting inspection
of the ballot papers only where ( i ) all the material facts
on which the allegations of irregularity or illegality in
counting are founded, are pleaded adequately in the
election petition, and ( ii ) the Court/Tribunal trying the
petition is prima facie satisfied that the making of such
an order is imperatively necessary to decide the dispute

11
(1975) 4 SCC 417
CA No.14311/2024 Page 21 of 26

12
maintained. In Satyanarain Dudhani v. Uday Kumar Singh ,
the Court held:

“ 10. It is thus obvious that neither during the counting
nor on the completion of the counting there was any
valid ground available for the recount of the ballot
papers. A cryptic application claiming recount was made
by the petitioner-respondent before the Returning
Officer. No details of any kind were given in the said
application. Not even a single instance showing any
irregularity or illegality in the counting was brought to
the notice of the Returning Officer. We are of the view
when there was no contemporaneous evidence to show
any irregularity or illegality in the counting ordinarily, it
would not be proper to order recount on the basis of bare
allegations in the election petition. We have been taken
through the pleadings in the election petition. We are
satisfied that the grounds urged in the election petition
do not justify for ordering recount and allowing
inspection of the ballot papers. It is settled proposition of
law that the secrecy of the ballot papers cannot be
permitted to be tinkered lightly. An order of recount
cannot be granted as a matter of course. The secrecy of
the ballot papers has to be maintained and only when the
High Court is satisfied on the basis of material facts
pleaded in the petition and supported by the
contemporaneous evidence that the recount can be
ordered.”


12
1993 Supp (2) SCC 82
CA No.14311/2024 Page 22 of 26


13
13.6 In Udey Chand v. Surat Singh , this Court while
entertaining an appeal by special leave, from a judgment and
order of the High Court of Punjab and Haryana wherein the
order of the Election Tribunal directing recount of the votes
cast in the election for the post of Sarpanch, Gram Panchayat,
Village Badshahpur, in a petition filed under Section 176 of the
Haryana Panchayat Raj Act, 1994, observed:-

14. Having considered the law as aforesaid, let us now consider,
in light thereof, the prayer for recount which has been allowed by

13
(2009) 10 SCC 170
CA No.14311/2024 Page 23 of 26


the Sub-Divisional Magistrate, but the said direction, set aside by
the High Court in view of the impugned judgment. The allegation
made is that there is a disparity in the count of votes informed to the
appellant and that finally disclosed in the official form. It relates to
19 votes, i.e., the difference between 1193 and 1213. The margin of
victory of the respondent was 37 votes, and so, in a sense, victory of
position would remain yet elusive of the appellant. However, this
Court’s concern lies away from who is in power, and instead is in
how one got to power. This process has to be in accordance with
constitutional principles and established norms - if not, then such a
person has to be deprived of the power, and the decision-making by
the people must begin once more.
15. When the officer was present there and he informed the
candidate, appellant herein, of the number of votes cast, why should
there be any difference? We have already observed that each vote
has its own value irrespective of its effect in the final outcome of the
election. Its sanctity has to be protected. It was a four-sided
election, i.e., four persons were contesting for the post of ‘Pradhan’.
Three of the four persons submitted by way of affidavit that they
had doubts regarding the propriety of the election, and they would
support a recount of votes.
CA No.14311/2024 Page 24 of 26


16. It has also come on record that deliberate attempts have been
made to benefit the ultimate victor such as the use of police force to
remove the appellant from the vicinity of the polling area. The diary
of the Presiding Officer of the polling booths, which is an essential
document recording the casting of votes, could not be found despite
a concerted effort.
17. The candidates in the election wanting to keep an eye on
voting during the day and inspect records of the same is something
which cannot be denied to them. If the Presiding Officers’ records
are missing and cannot be verified, it can be found that the final
conclusion is within the realm of questionability. Each and every
document pertaining to an election is important and all efforts
should be made to preserve the same.
18. The election in question took place in the year 2021 and the
process of law has culminated by way of this judgment, four years
later. For the reasons aforesaid, that three of the four candidates
question the veracity of the election and the manner in which it was
conducted, and that important documents pertaining to the election
are missing and such absence is unexplained, we are of the view in
the present facts that a recount would be justified.
CA No.14311/2024 Page 25 of 26


19. The judgment of the High Court passed in Writ-C No.35734
th
of 2022 titled Sunil Kumar v. State of U.P. And Ors. dated 27
st
January 2023 is, therefore, set aside and order dated 31 October
2022 passed by the Sub-Divisional Magistrate in Election Petition
No.02010/2021, is restored. The appeal is allowed.
20. Registry is directed to communicate a copy of this judgment
to the Registrar General, High Court of Judicature at Allahabad, who
shall ensure passage of the same to the concerned Magistrate,
enabling them to set a date for recount of the result after hearing the
parties.
Pending application(s), if any, shall stand disposed of.


…………………..………………J.
(Sanjay Karol)



……………..……………………J.
(Nongmeikapam Kotiswar Singh)

New Delhi;
March 6, 2025.
CA No.14311/2024 Page 26 of 26