SURESH PRASAD YADA V versus JAI PRAKASH MISHRA & ORS.

SAR.KARIA, J. Election from 168-Katoria Bihar Legislative Assem· bly Copstituency 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, 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.

p. 22, margin F

On April 14, 1972, the appellant filed an election pe:tition under the Representatio~ 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.

p. 22, margin G

The petition was resisted by the returned candidate. The High Court framed issues, recorded the evidence produced by the parties and held that the allegoations had not been substantiated. It declined the request for a recount and dismissed the petition. Hence · this appeiil by the petitioner. ·

pp. 22–23, margin H

Mr. Prasad, learned Counsel for the appellant contends that the following irregularities/illegalities in the counting had been established :

p. 23, margin A

(1) Four unauthorised persons, viz., Ajudhya Prasad Singh, Q. M. Zaman, P-arvez 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

p. 23, margin A

the counting. (2) In the first round of counting at t•able 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

p. 23, margin B

papers. (3) The detailed result-sheet which was inter a/ia prepared ti? blewise, in accordance with the instructions of the Elec- · tion Commission, has bee.ii deliberately suppressed to prevent detection of mistakes and manipulations made in the

p. 23, margin C

counting. ( 4) About 600-700 uncounted ballot p•apers 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 Jost by 575 votes to Respondent No. 1, notwithstanding) the fact that in the last round there were only 3800 b>allot

p. 23, margin D

papers to be counted.

p. 23, margin F

Before dealing with these contentions, we may recall, wbat this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made oas a matter of course. The reason is two-fold. Firstly such an order affects the secrecy of the ballot which under the Jaw is not io be lightly di>turbed. Secondly, the Rules pmvide an elaborate procedure for counting of ballot papers. This procedure contains so many statutory checks and effective safegirards against trickery mistakes and fraud in counting, that it can be called almost fool-proof. Althoug'1 no h<1td and fast rule can be faid down, yet the broad guidelines, as discernible from the decisions of this Court, may be indicated thus :

p. 23, margin F

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

p. 23, margin G

(1) the election-petition contains an adequate statements of all the Ill'aterial facts on which the allegations of

p. 23, margin H

irregularity or illegality in counting are founded; (2) On the basis of evidence adduced such allegations believing that there has been a mistake in prima f acie established, affording a good ground for

p. 24, margin A

and (3) the Court trying the petition is prima f acie that the rmking of su.ch an order is imperatively necessary to decide the dispute and to do

p. 24, margin A

and effectual justice between the parties.

p. 24, margin B

The contentions advanced in this case are to be tested of these principles.

p. 24, margin B

Since, on the whole, we agree with the findings and of the court below, we will confine the discussion to the of the rnse and the legal aspects of the contentions canvassed us.

p. 24, margin C

The first contention is that four unauthonsed persons to act as Counting Supervisors at tables Nos. 4, 5, 7 argument proceeds that the list of all the persons who were as Counti:1g Supervisors/Counting Assistants, was summo!lfd the office of the District Election Officer, and in response list Ex. 6, has been produced. It is argued tl;at since Ajudhya Prasad Smgh, Q. M. Zaman, Parez Ahmed and Sah do not find mention in Exh. 6, they were never appointed Counting Supervisors. In this · conne..:tion, reference has to the application filed on April 14, 1972, by the petitioner moning documents, the list Ex. 6, and the Check Memos Ex. C/4, Ex. C/6 and Ex. C/8). The Check Memos aforesaid persons actually supervised the counting at tables 7 and 9.

p. 24, margin C

It may be noted that there is not even an oblique hint tion petition that any unauthorised person wns allowed to ing Supervisor or Counting Assistant. Such an allegation for the bst time in the application, dated 3-7-1973. This seeking a recount was mad.e •at the stage of final arguments, parties had closed their evidence. It is true that in cross-examination the Returning Officer and the Assistant Returning Officer tioned by the Counsel for the petitioner with regard to tion of these persons to act Counting Supervisors. JBut hardly constitute •an adequate notice to the Respondent plea which was sought to be smuggled into the case in manner at the belated stagi~. The Respondent could assuming that the evidence on this plea which was not adumberated in the petition nor put in issue would not by !he Cou~t. In oany case· at !hat stage the Respondent tunny or nght to produce evidence to show that apart Exh. 6, th~re was other record _showing that the aforesaid persons duly appomted by the Returnmg Officer to act as Counting Supervis~. •

p. 24, margin E

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 they are all Government officials. The mere fact that their names do 1''ot 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.

p. 25, margin A

That such appointments w~rc 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 :

p. 25, margin B

"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 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 W'as subsequently exempted from working as such inside the counting hall."

p. 25, margin B

In reply to a further question put by the petitioner's Counsel, th~ Returning Officer reiterated :

p. 25, margin C

"There was a reserved list like this in my office regarding this matter which hao teen prepared under my orders."

p. 25, margin D

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 a;1d 3. respectively.

p. 25, margin D

The petitioner appeared in the witness-box as P.W. 19 on 7-5-197 J. Even then he did not make any allegation th-at any unauthorised p~r­ sons had been admitted into the Counting Hall. His Chief Countmg 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 praesumun!ur rite esee acta, and it would be presumed that the aforesaid four persons were rightly and regulady 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 shown.

p. 25, margin E

Now we turn to the seco~d 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 werefound in excess of those polled. This irregularity, it is submitted, was brought to the notice of the Returning Officer by Prof. Yad•av, the Chief Counting Agent of the appellant, but to no avail.

p. 25, margin F

Part I of Ex. 4 is the Bailor Paper Account sent by the Presiding Officer of Polling Station No. 74. Its Part II contains the result of the initial counting of those ballot-papers at table'No. 4. In Part I, 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 II, column 1, the total number of ballot papers found 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 IJ'aper 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.

pp. 25–26, margin G

It is common ground that when this d~screpancy was brought to the notice of the Assistant Returning Officer and the Returning 0fficer, B the scaled 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 :

p. 26

"On verification by counting the actual number of unused ballot-papers by opening the sta_tutory packet in presence of the Re~urning Officer and the candidates/agents, it was found that only 34 7 unused?) ballot papers have been returned. This settles the discrepancy in the ballot paper account." Un~er it is the endorsement of the Returning Officer to thie effect :

p. 26

"This was done by (A.R. O?) .in my presence."

p. 26

The Assistant Returning Officer stated in the witness-stand as R.W. 13, that in the Ballot P•aper Account, the total number of un- D used 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 discreP'ancy did not actually exist.

p. 26

The court" below has accepted the genuineness of the endorsements of the Assistant Returning Officer (R.W. 13) and the Returning Offi- E cer (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 bas also found that only one unused ballot--paper was found unsigned, and not fifty. We have no good reason to differ from those findings.

p. 26

Indeed the main burden of the arguments of Mr. Prasoad, is that the Assistant Returning Officer /Returning 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 Rule:s. It is stressed that this illegality vitiating the counting, was itself a good ground for ordering a recount.

p. 26

Rule 93 reads :

p. 26

"Production and inspection of election papers.- (1) While in the custody of the district election officer or,

p. 26

as the case may be, the returning· officer-. (a) the packets of unused ballot papers with counterfoils

p. 26

attached theretq; H (b) the packets of used ballot papers whether valid, ten-:lered or rejected; ( 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 surb-section ( 1) or sub-section (2) of section 152;

pp. 26–27

and ( e) the packets of the declaration by electors · and the'

p. 27, margin A

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 competent court.

p. 27, margin B

(2) Subject to such conditions and to the payment of such·.

p. 27, margin B

fee as the Election Commission may direct,- (a) all other papers relating to the election shall be open~

p. 27, margin B

to public inspection; and ( b) copies thereof shall on application be furnished. ( 3) Copies of the return~ by the returning officer forwarded under rule 64, or as the case may be, under clause (b) of sub-rule ( 1) of rule 84 shail be furnished by \he returning officer, district election officer, chief electoral officer or the Electida Commission on payment of a fee of two rupees for each

p. 27, margin C

copy."

p. 27, margin D

For understanding the import and object of Rule 93, it would be appropriate to have a short and swift glance at the scheme of the Rules.

p. 27, margin D

Part V of the Rules makes provision with regard to "Counting of Votes in Parliamentary and Assembly Constituencies." It covers: Rules 50 to 66. Part VI relates to "Voting at Elections 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.

p. 27, margin E

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 IX c.•aptioned "Miscellaneous'', which in the serial order comes after the Parts dealing with voting and counting of votes.

p. 27, margin F

V_iewed 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 indica~ion is avail-· able 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 Offi-cer under Rule 64 or Rule 84(1) (b). The supply of such copies willJ obviously be a post-election function.

p. 27, margin F

Any other interpretation of Rule 93 and its scope would difficult, if not altogether impossible, for the Returning Officer form the various functions and duties enjoined by the rules ot counting. This will be clear from a reference to the Take for instance Rule 56 which requires that the ballot fir.~t be taken out from the boxes used in a constituency and gether and then arranged in convenient bundles and scrutinised. rule (2) of Rule 56 further requires inter alia that if a does not bear an:y mark at all or does not bear both the signature which it should have borne under the provisions (1) of Rule 38, it shall be rejected by the Returning Officer. form this duty it would be absolutely necessary for the Officer to inspect such ballot papers. Indeed, in the present objection was raised that fifty unused ballot papers in the not bear the mark or signature required by Rule 3 8 (1). The Officer was therefore, fully competent to open the packet and count the ballot papers found therein.

p. 28, margin A

Instruction 23 in the Hand Book issued by the Election mission, •also indicates that R. 93 (l) operates at a post-election Under this instruction, the Returning Officer is required packets of all the papers relating to the election, specified (a), (b), (c), (d) and (c) of R. 93(1) immediately after ing of the votes is over, with his own seal and also with Commission. · After the sealing, the packets are to be put steel box which shall be locked with two locks and each sealed. Immediately after the declaration of the election sealed box is to be despatched to the District Election Officer receipt of the same shall forthright deposit it in safe custody Treasury und.:r double-lock. The key of one of the locks to the Treasury Officer. In Union Territories such a deposit matie by the Returning Officer. The secret seals of the are returned immediately after their required use. Thus, the custody contemplated by Rule 93 ( 1) is the post-election

p. 28, margin C

In the light of the above discussion, the conclusion that the act of the Returning Officer in opening the packet, pecting and counting the unused ballot-papers found therein, far amounting to an· illegality, was necessary for the due performance of the duty enjoined on him by the Rules.

p. 28, margin F

Accordingly, we overrule this contention.

p. 28, margin F

It is urged that the detailed result-sheet, prepared table-wise and roundwise, from which figures mentioned re:;ult sheet (Exh. 7) were qtracted has been deliberately prevent detection of the h•anky panky done in the counting. detailed result sheet, it is maintained, was required to be and was admittedly prepared-under instruction No. Hand Book for Returning Officers (1970)" issued by Commission.

p. 28, margin G

The contention appears to be attractive but does not examination.

p. 28, margin H

s. v. J. (Sarkaria, J.) Instruction 17(q) in the Hand-Book runs thus :

p. 29

"Side by side, the work of rabulating the result of counting shall be done. The Check Memos duly signed by the Returning Officer 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."

p. 29, margin A

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 roundcwise. The final result sheet (Exh. 7) exactly conforms to the prescribed Form 20. I

p. 29, margin B

The Assistant Returning Officer (R.W. 13) in cross examination said :

p. 29, margin C

"On the above table where the entries used to be made in the result sheets from the checkcmemos, 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 men1ion in the differe:Jt check-memos of the different tables of the different rounds of counting, but from these cheek memos the figures were first extracted on the det•ailed result sheet giving their numbers round-wise, candidate-wise and table-wise and thereafter those _figures were totalled roundwise and ex~racted in this Exh. 7."

p. 29, margin C

From the statement of R.W. 13 extracted above, it would appear that at fir.;t a detailed result sheet in which figures were mbulated candidatewise, tablewise and roundwise was prepared,· and then, therefrom. all the figures, excepting those showing table-wise break-up, were carried over to the fipal result sheet, Exh. 7, drawn up in t~e prescribed Form 20. This detailed result-sheet, though summoned, is not forthcoming from the Cistrict Election Officer might be, it has 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, Exh: 7 impossible or even difficult. Its preparation is not a requirement of any statutory provision. It is prepared only as matter of convenience in view of the instructions of the Election Commission, by carrying ever, collating an<l 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 fiml result-sheet, whether detailed or abstracted, are worked out are ·given in the Check Memos pertaining to the various counting tables. A 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 tallying the same with the aggregate of tho:>"! given in the Check Memos. Indeed, no argument h•as 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. - B We therefore, repel this contention.

pp. 29–30, margin E

This bring us to the last contention. The argument advanced by Mr. Prasad is that during the four!h round of counting, 600 to 700 unused and uncounted ballot papers in bundles of 25 each were detect , ed by the petitioner's counting agent, Jagannath Sah, lyin1~ under the table of the Assistant Returning Officer. J agannath 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 thmafter 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.

p. 30

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 : E

p. 30

"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."

p. 30

It was not alleged therein, even in an embryonic form that 600 ·uncounted votes in bundles were detected lying 11nderne(1tlz the tahle 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 undemealh · the tal,,le.

p. 30

The original allegation illi 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 had no explanation as to wh,· ·the grand-total of the final result sheet did not show an 1~xcess 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.

p. 30

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 Si!ch notes or their contents in the applications Exhs. 3 and 3a. These notes are said to have been made Qy the Counting Agents of the petitioner at the time of countfrtg. But in the initial list submitted by the petitioner on 30-8-1972 for summoning among· others, h.is Counting Agents a~ 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.

p. 31, margin A

Jn these circumstances, the High Court was right in holding that these notes had been subsequently brought into .existence for the purpose of this petition.

p. 31, margin C

For the foregoing reasons, we me 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. l. V.M.K. Appeal dismissed.

p. 31, margin D