Patna High Court
Dilip Kumar Sinha vs Ambika Prasad And Ors. on 21 January, 2000
Equivalent citations: 2000(2)BLJR1143
Author: B.P. Sharma
Bench: B.P. Sharma
JUDGMENT B.P. Sharma, J.
1. The present election petition has been filed on behalf of Sri Dilip Kumar Sinha, a loosing candidate for the Assembly Election of Bihar legislative Assembly from 165-Pirpaiti Assembly Constituency held in March 1995, The election petition has been filed under Sections 80, 80-A and 81 of the Representation of People Act, 1951 (hereinafter to be referred to as the R.P. Act 7). The petitioner has challenged the election of Respondent No. 1 Sri Ambika Prasad who was declared elected in the election from the aforesaid Constituency. The necessary Notification was made on 16th of January, 1995 and after the nomination and scrutiny, etc. was made according to the Schedule, the polling was held on 15th of March, 1995. There were altogether 27 candidates left in the field, after scrutiny and withdrawal. Out of 27 candidates, respondent No. 1 Sri Ambika Prasad, who was a candidate of Communist Party of India, was declared elected by the Returning Officer of the Constituency. The present petitioner Sri Dilip Kumar Sinha had received 33179 valid votes in his favour; whereas altogether 34416 valid votes were counted in favour of respondent No. 1 Sri Ambika Prasad. The petitioner has challenged the election of the respondent No. 1 on the ground of irregularity, committed by the Returning Officer and his sub-ordinate staff. No other kind of allegation has been made.
2. It has been stated that at the relevant time, Sri Arun Kumar Sinha happened to be the District Magistrate and the District Election Officer of the district of Bhagalpur and the Constituency concerned was in the district of Bhagalpur of which the Sub-Divisional Officer, Kahalgaon happened to be the Returning Officer. The petitioner happened to be the Official candidate of Indian National Congress. The symbol allotted to the petitioner was 'Panja'; whereas the symbol allotted to respondent No. 1 Sri Ambika Prasad was 'Bali and Hasia'. It has been alleged that though the petitioner received maximum number of valid votes, the Returning Officer illegally declared the respondent No. 1 as duly elected candidate. It has been stated in this regard that at the beginning of the counting, he was informed by the Returning Officer that only 113000 votes were to be counted but, in fact, total votes counted came to J 23528 of which 120015 votes were found to be valid votes whereas 3513 were invalid votes. The petitioner has stated that at the relevant time, he happened to be President of Kahalgaon unit of N.T.P.C. Workers' Union which had affiliation with I.N.T.U.C. He was leading an agitation regarding the rights of displaced persons for their rehabilitation and at that time Sri C.P. Bakhala was the Sub-Divisional Officer, Kahalgaon. He was posted there since the year 1991. In course of agitation led by the petitioner, there was Lathi charge and firing by Police and a false case was registered as Kahalgaon on P.S. Case No. 330 of 1991 under Sections 147, 145, 149, 323, 339, 338, 307, 332, 333, 335, 427, 486 and 188 of the I.P.C. It was at the instance of the S.D.O. Sri Bakhala. It is further stated that Sri Bakhala was transferred from Kahalgaon but his transfer was stayed by the Government of Bihar at the instance of respondent No. 1 twice. It has been stated that there were altogether ten counting tables kept in the Counting Hall and there was a Central Table. It is further stated that above named Sri Bakhala, S.D.O. Kahalgaon-cum-Returning Officer came to the counting hall after the counting of 7th round was over and he remained present there till the end of the counting. In the meanwhile, the Assistant Returning Officer was In-charge of counting till the 7th round. Thereafter the A.R.C. was asked to sit on the side table and the S.D.O. Sri Bakhala occupied the Central table. The District Magistrate, Bhagalpur also used to visit the counting hall from time to time. According to the petitioner, the arrangement in the counting hall was not satisfactory and not according to the instructions of the Election Commission of India. It is also further stated that the basket in which the bundles of ballot, papers were kept after initial counting was kept behind the central table in disregard to the instructions of the Election Commission. It is also further stated that there were two rooms attached to the hall behind the central table and unused ballot papers were also kept in those rooms. The counting took place in a room of Sharda Pathshala at Kahalgaon. The counting tables were arranged in two rows and the entire area was surrounded from three sides and there was a gate on the western side. There was apiece brick wall which was 3 feet in height. On the other side of barricading, the benches were provided in three rows for the counting agents of the respective candidates. Each contesting candidate was entitled to keep one counting agent on one table. So it was humanly not possible for each of the counting agents to clearly and properly watch the counting process easily. According to him, this fact could be verified from the video cassettes which were prepared from time to time. It is also further stated that the petitioner and other contesting candidates had protested to this kind of arrangement but the Returning Officer did not pay any attention in this regard. It is also further stated that the personnel's of C.R.P. and B.S.F. were also posted inside the counting hall and whenever the counting agents of the petitioner used to raise any objection regarding any kind of difficulty felt in sitting arrangement or illegality or irregularity being committed by the counting staff, they were man-handled by the Jawans of C.R.P. & B.S.F. in the name of maintaining peace in the counting hall. It is also further stated that the petitioner had sent a fax message to the Chief Selection Commissioner about the illegality and irregularity committed in course of counting and he had made a prayer for recounting. According to him, the written complaints filed by the petitioner or his counting agents were never attended to by the A.R.O. or the R.O. According to the petitioner, Sri Yogalal Mishra was the A.R.O. of the Constituency who was In-charge of counting till the 7th round. According to the petitioner, after the R.O. came to the counting hall and took charge of counting, irregularities, and manipulation started. It. is also further stated that counting continued for about 80 hours continuously out the contesting candidates were not allowed to change* their counting again, but in the 8th round of counting, the entire counting staff were changed.' The petitioner, in enquiry, came to know that 20 employees were sent from Bhagalpur to Kahalgaon by the District Magistrate. Bhagalpur on 31st March, 1995. Their names have also been given. It is also fun her staled that apart from the abovenarned employees, others were also employed by the R.O. for the purpose of counting after the 8th round, till the end of counting. He has also further alleged that these other persons were not even the staff who were engaged in the counting process. The petitioner also further stated that after declaration of the result, the petitioner on 15th April, 1995, filed two requisitions for obtaining certified copies of the documents under Rule 93(2) of the Conduct of Election Rules, 1961. The Returning Officer also ordered for issuance of certified copy, as applied for, but refused to grant certified copy of Form-16 and the presiding Officer's diaries of 165-Pirpaiti Assembly Constituency; The petitioner then approached the Chief Electoral Officer. Government of Bihar, with a prayer by this effect and the Chief Electoral Officer directed the District Magistrate-cum-District Election Officer to issue the certified copy of ballot paper accounts in Form-16 accordingly. Thereafter the. petitioner approached the District Magistrate-cum-District Election Officer for the certified copy but he did not issue any direction because he was already transferred and a new District Magistrate was posted, but he had not joined till the election petition was filed. Those papers could not be filed., as the petitioner could not receive those copies. According to the petitioner, the irregularities which were committed during the counting were:
(i) Before initial counting of votes, the Returning Officer told the Election petitioner that the total votes polled in the constituency was 1,13,000; whereas from the result sheet, the total votes counted was 1,23,535.
(ii) The major manipulations and illegalities started from 8th round of counting over table Nos. 1, 2, 4, 5,9 and 10. It was so that the ballot papers cast in favour of the petitioner were counted in favour of respondent No. 1. It was so done by putting ballot papers of the petitioner inside, those of the Respondent No. 1 for preparation of bundles of 25 each. This way, about 500 ballot papers in each round belonging to the petitioner were counted in favour of respondent No. 1.
(iii) The ballot boxes used at Booth Nos. 78 and 181 were found unlocked and at the time of initial counting, there was objection raised on behalf of the petitioner and other candidates also not to count those ballot papers, as they were invalid, but the objections were overruled on flimsy ground that the ballot papers were unlocked due to mechanical defect of the lock system and even clarification was not sought from the Election Commission of India in this regard.
(iv) For some Booths, neither the Presiding Officers' diary nor the Ballot paper Accounts 9 (Form-16) was available at the time of counting. It has been stated for example that on booth No. 146 total votes cast was 625 but in the ballot boxes 635 ballot papers were found. The remaining 375 unused ballot papers were not brought along with the ballot papers at the time of initial counting in spite of repeated requests made on behalf of the election petitioner and other contesting candidates. Similarly, the Presiding Officers' diary of Booth No. 150 was not. brought along with the ballot boxes at the time of initial counting in spiel of repeated requests made on behalf of the election petitioner and other contesting candidates. The Ballot Paper Accounts of booth No. 20 did not show as to how many ballot papers were used at Booth No. 20 and how many ballot papers remained, unused. In similar manner, according to the ballot paper accounts of Booth No. 11, the total votes polled at that Booth was 654 whereas the total votes found in the boxes was 672. Similarly, the ballot paper accounts of Booth No. 263 also showed that the total votes polled was 502", but, in fact, 613 ballot papers were found in the. ballot boxes.
(v) After the initial stage of counting, 5000 votes were thrown out, and equal number of ballot papers were mixed after stamping the same in favour of C.P.I, candidate, i.e., respondent No. 1, The petitioner further stated that the details of illegalities and irregularities could be supplied by him alter he received the certified copies of the relevant papers by him and ultimately it was stated that though the maximum number of votes were polled in favour of petitioner, in illegal and mala fide manner, the respondent No. 1 was declared elected. The petitioner accordingly prayed that records be called for and after hearing the parties, inspection of records, recounting of ballot papers be ordered and thereafter the election of respondent No. 1 be declared void and the petitioner be declared elected for 165-Pirpaiti Assembly Constituency. One amendment petition was also filed subsequently on behalf of petitioner in which some further details, were also given and it was allowed by the Court.
3. Although, as per the requirement of law, all the candidates, other than the petitioner, who were contesting the election have been impleaded as respondents, no other candidates, except the respondent No. 1, has filed written statement. Apart from raising other points regarding maintainability of the petition on various grounds, the respondent No. 1 asserted in his written statement that so far as the petitioner is concerned, he remained silent throughout the process of counting a much as he did not tile any petition regarding allegation in the election petition. Besides, the petitioner did not-file any objection for recounting of votes regarding allegation in the election petition. Therefore, it has been stated that in such a circumstance, the entire allegation made in the election petition is imaginary, a concoction and after-thought. It has also further been stated that in absence of cause of action, the election petition is not fit to be maintainable. Further it is stated that the election petitioner has alleged in the petition that Gazetted Officers like-Returning Officer, rendered help to the respondent No. 1 in furtherance of success of his election and, thus as alleged, adopted corrupt practice of obtaining help of Gazetted Officers. Therefore, it has been stated that as per the requirement of provisions of Section 81(1)(c) of the R.P. Act, particularly, its proviso that a prescribed affidavit in Form-25,'as contemplated under Rule 94(A) of the Conduct of Election Rules has not been filed. Besides, every copy of the election petition has not got endorsement of the Oath Commissioner and, therefore, it will be deemed that the election petitioner has not filed true copy pf the election petition, as required under Section 81(3) of the R.P. Act. It has further been stated that the respondent No. 1 is a leading political figure of the State. He is a popular leader of C.P.I. group in the present assembly. He is one of the prominent parliamentarians of the State. He is in active politics since his student age and he has fought and championed land cases toiling masses and cross-section of the Society. He has also distinction of representing Pinpoint Assembly Constituency six times, including the present one and he was imprisoned at least half a dozen times for fighting for the people. Thus, respondent No. 1 is a senior leader of C.P.I. being member of the National Council of C.P.I. He is also a widely travelled man. It is also further stated that the petitioner is not entitled to the relief, as prayed by him and the averments in the plaint have been denied paradise. It is stated that it is denied that the petitioner received majority of valid votes spoiled or that the Returning Officer illegally declared the respondent No. 1 as duly elected candidate; rather, the figure of the result-sheet clearly shows that the respondent No. 1 secured the highest and majority of valid votes and, therefore, he was rightly declared elected. It is also denied that the allegation against Sri. C.P. Bakhla, the S.D.O. Kahalgaon and the R.O. of the Constituency is false and baseless. The respondent No. 1 claims to have made thorough inquiry in the matter and came to know that there was no order of transfer of the S.D.O. concerned till the election results were declared. Therefore, it has been submitted that since there was no transfer order, there was no question of the respondent No. 1 making any Pairs for his stay or cancellation of his transfer order. It has also further been denied that there was any defect in the arrangement of counting table and everything was done in consonance with the provisions of the Act and the Conduct of Election Rules as well as the guide-lines, contained in the hand-book all the Returning Officer and also various directions issued by the Election Commission of India from time to time. The R.O. accordingly, made arrangement of counting tables satisfactorily and, there was no tampering of ballot boxes or ballot papers, as alleged. It is also further stated that the counting agents had no difficulty at all in watching the counting process. It is also denied that the Returning Officer came to the counting hall after the 7th round; rather it is stated that the S.D.O., Kahalgaon, besides being the R.O. for. 165-Pripainti Constituency was also the R.O. for 166-Kahalgaon Constituency. It is stated that, as the S.D.O., Kahalgaon was the Returning Officer for two constituencies, he was moving from one counting hall to another from time to time. Therefore, it is stated that the R.O. had come to the counting hall on different occasions, prior to the 7th round as alleged. It has been stated that the A.R.O. was discharging his duties as per the arrangement made, but. it is incorrect to say that after the 7th round, the A.R.O. was asked to sit by the side of the central table. It has also further been stated that the arrangement on counting tables was good and satisfactory mid all the candidates were fully satisfied with the arrangement and no candidate or his agent ever made any objection in this regard or made any complain to the authority much less, the Collector. It is also denied that the basket for keeping bundles of ballot papers was kept behind the Central table; rather, it was kept in proper place, as per the instruction of the Election Commission. It is stated that basket in which the bundles of ballot papers were kept after initial counting, was kept in front of the counting table and not behind the central table. It is also denied that the unused ballot papers were kept in a room, behind the central table. Other allegations are also denied and it is stated that all the counting agents and contesting candidates, including the petitioner were fully satisfied with the arrangement of counting and did not ever raise any objection in this regard. He also further stated that the petitioner did not ever protest or complained to any authority, either orally or in writing against the counting arrangement. However, the District Magistrate frequently, visited the counting hall, but the petitioner, did not complain to him. Moreover, the Election Supervisor deputed by the Election Commission was also supervising the counting process, but no one drew his attention towards any illegality, so far as the counting arrangements was concerned. As a matter of fact, the counting was held in a big hall of the school and not in a room, as alleged. Therefore, it is altogether incorrect to say that at the time of counting, it was not possible to watch the counting process clearly. It has also been stated that the petitioner happened to be a candidate of a National Party, his counting agents were given all kinds of facilities required under the law and the petitioner or his counting agents did not raise any objection that they had any difficulty in watching the counting. It has also been denied that any personnel of C.R.P. or B.S.F. was posted inside the counting hall. However, they were posted inside the counting hall for maintaining the law & order. It has also been denied that any person was man-handled by the personnel of C.R.P. and the B.S.F., or any paramilitary force and no such complaint was ever made by the petitioner or any of his agents. It is also denied that the petitioner had ever made any complaint to any authority regarding the fact that the R.O. turned up after the 7th round or that he encouraged any bungling, or irregularity in the counting. It is denied that anything of the kind had happened. It is denied that the R.O. had indulged in any kind of irregularity either at the instance of the petitioner or in order to help him. It is also denied that the claim of the petitioner regarding irregularity has any foundation or basis because, according to the petitioner, while he was leading prior to the 8th round of counting in the 2nd phase and he lost because of bungling of 8th round onwards. It appears that actually, he was leading in the 1st, 4th and 6th rounds only and thereafter, he has also led in 10th, 11th and 12-th round. Therefore, it is incorrect to say that while petitioner was leading against the respondent No. 1 till the 7th round, he started loosing after the 8th round when the R.O. himself took charge of counting. It is also further stated that: as per the rules, the counting process has to continue without break and so, the Officials continued the counting process continuously for 80 hours till the declaration of the results, but none, of the contesting candidates or any other person or their agents or authorised persons made any complain against the continuation of counting. It is stated that it is altogether incorrect to say that the candidates were not allowed to change their counting agents. Therefore, the allegation in this regard is vague. The petitioner, has also not given any detail as to which candidate wanted to change his agent and for this purpose neither oral nor written complain was made nor be stated the name of persons who wanted to change the agents, and on this score, the entire allegation is too vague to require any reply. It is also further stated that the District Magistrate-cum-District Election Officer vide his letter referred to in paragraph 24, had named the persons to be deputed in place of authorities for counting and no other person, except those who had participated in the counting were replaced and there was no illegality or irregularity in it. It is stated that this is a common practice that those persons who are tired because of continuation of work, if they so like, are replaced by the other persons. Accordingly, some staff was changed by the District Magistrate. It has been stated that the allegation regarding illegality or irregularity is vague and without any example and material fact. As a matter of fact, the counting of ballot papers was done as per the requirement under the law and in a fair and proper manner. It is also stated that incorrect statement has been made that before the start, of the counting process, the Returning Officer told the petitioner, that the total votes polled in the constituency was 1,13,000 only. It is stated that it was neither possible nor necessary to make any such announcement and the allegation is totally false and mischievous. It is also denied that there was any manipulation or illegality committed in the process of counting, especially on table Nos. 1, 2, 4, 5, 9 and 10. The allegation in this regard is termedas vague and without, foundation. It is also further stated that there is no law regarding locking of the boxes. Therefore, the fact that because some boxes of Booth Nos. 78 and 181 were unlocked is imaginary and rightly the authorities were satisfied that the boxes were properly packed and sealed and then the counting was ordered. It is also stated that the claim of the petitioner that irregularity was committed by non-production of unused ballot papers because no such request was made or petition was filed in this regard and it is also stated that the figure given by the petitioner in paragraph 30(IV) is imaginary and concocted. It has been further stated that it has been incorrectly and without any basis alleged that 5,000 votes were thrown away and equal number of ballot papers were mixed after stamping the same by the C.P.I., candidate, because no such document's available or has been filed by the petitioner in this regard. Therefore, it has been submitted that the entire allegation in the election petition is denied and the petitioner is not entitled to any relief claimed by him, and, therefore, it. has been prayed that the election petition be dismissed with cost.
4. After the parties filed their respective pleadings, they were heard on the point of issues and the following issues were framed:
1. Is the election petition, as framed, maintainable?
2. Whether the election petition, is liable to be dismissed under Section 86(1) of the Representation of People Act for non-compliance of the mandatory provisions of Sections 81, 82, and 117 of the said Act?
3. Whether the election petition is liable to be rejected in accordance with Order VII, Rule 11 of the Code of Civil Procedure dvie to lack of concise statement of material facts on which the election petitioner relies?
4. Whether the illegalities or irregularities, as alleged by the election petitioner has been committed during the course of counting of ballot papers of the Assembly Constituency concerned and, if so, whether the education of respondent No. 1 is liable to be declared void in this score?
5. Whether the election petitioner is entitled to be declared as returned candidate from the Assembly Constituency concerned?
6. To what relief or reliefs, the election petitioner is entitled?
5. Subsequently, an amendment petitioner was filed which was considered and after hearing both the parties, the same was allowed by order dated 8th October, 1996. Against this order, the respondent No. 1 also went before the Supreme Court, but the order of this Court was not disturbed and it was left open for consideration after the final disposal of the election petition on merit. However, on the prayer of the Counsel for the election petitioner, there was hearing regarding framing of additional issues and, accordingly, the following additional issues were framed by order dated 11th of February, I. Whether non-submission of Form-16 of Booth Nos. 108, 135. 146. 176, 192, 199, 230 & 260 has materially affected the election in question and the result thereof?
II. Whether the alleged Form-16 of Booth Nos. 15 & 164 which contain no entries and whose columns are completely blank; Form-16 of Booth Nos. 13 & 19 which are on plain paper without the requisite columns therein and Form-16 of Booth No. 23, which has cuttings, overwriting and manipulations indicate the illegalities, irregularities and manipulations committed during counting of votes?
III. Whether during counting of ballot papers of Booth Nos. 2, 9, 11, 22, 25, 27, 28, 38, 40, 43, 47, 48. 49, 50, 83, 95, 109, 116, 119, 134, 156, 170, 191, 202, 203, 207, 214, 220, 227, 231, 250, 259 & 262, the number of ballot papers were found in excess of the ballot papers account in Form-16 which also indicates illegalities, irregularities and manipulation during counting of ballot papers?
6. Subsequently, a petition was filed on behalf of respondent No. 1, regarding maintainability of the Election Petition and prayer for deciding the issues was made. A rejoinder to this petition was also filed on behalf of petitioner and both the parties were heard. An order was passed on 24th February, 1998 by which the petition was decided and, thus, the Issue Nos. 1, 2 & 3 stood disposed of. The rest of the issues have to be considered and decided.
Issue Nos. 4 & 5.and Additional Issue Nos. I, II & III:
7. Altogether, seven witnesses have been examined on behalf of petitioner in support of his case. P.W. 1, Dilip Kumar Sinha happens to be the election petitioner himself. P.W. 2, Md. Mozahid was the counting agent of the petitioner on table No. 2. P.W. 3 Surendra Singh hi Svmdar Singh also happened to be a counting agent of the petitioner on table No. 1. P.W. 4 Kaushal Kumar Jha @ Kaushal Kishore Jha @ Killu Jha was the counting agent of one independent candidate Sri Pradip Kumar on table No. 8. P.W. 5 Ragliubansh Singh happens to be the election agent of an independent candidate to Smt. Raj Kumari Devi, and. as such, he was also present during the counting. P.W. 6 Krishnadeo Mandal was also present in the counting hall as counting agent and, as such, he was present in the counting hall. P.W. 7 Swapan Bimal was a counting agent of an independent candidate Smt. Raj Kumari Devi and. thus, he was also present inside the counting hall during the counting. They have tried to lead support to the claim of the petitioner in his petition regarding irregularities committed in the counting.
8. On the other hand, 12 witnesses have been examined on behalf of respondent No. 1. Out of them, D.W. 1 Ambika Prasad happens to be the respondent No. 1 himself. D.W. 2 Azij Naza was a counting agent of respondent No. 1 on table No. 1, D.W. 3 Binod Kumar Das was also a counting agent of the respondent No. 1 table No. 9, D.W. 4 Keshav Prasad Yadav was also a counting agent of respondent No. 1 on table No. 5, D.W. 5 Bhagwan Paswan was also a counting agent of respondent No. 1 on table No. 7. D.W. 6 Bhola Yadav, was the Election agent of an independent candidate Sri Ramesh Pandey and he was also present in the counting hall during the counting. D.W. 7 Arbind Chourasia was also a counting agent of an independent candidate Sri Surya Naraiii Pathak. D.W. 8 Hari Mohan Mandal was the counting agent of respondent No. 1 on table No. 8, D.W. 9 Manohar Kumar was also a counting agent of respondent No. 1 on table No. 2. D.W. 10 Arun Kumar Singh happened to be the District Magistrate, Bhagalpur at the relevant time and, as such, he was the District Election Officer of Bhagalpur. D.W. 11, Sri C.P. Bakhala happened to be the S.D.O., Kahalgaon at the relevant time and he was the Returning Officer of Pirpaiti Assembly Constituency during the election and counting. D.W. 12 Sri Yogalal Mishra happened to be the A.R.O. of the constituency concerned.
9. So far as the documents are concerned, on behalf of petitioner some documents have been admitted into evidence. Ext. 1 is the application for information on, which endorsement of the S.D.O.-cum-R.O. of the constituency concerned is there and it appears from this endorsement that the Register of ballot paper of 165-Assembly segment was not traceable and, therefore, the copy could not be supplied. Ext.-2 is the certified copy of the order-sheet of the R.O. whereas Ext-3 is the petition filed on behalf of one candidate Shobhakant Mandal regarding irregularities being committed in the counting of votes on which an enquiry was made by the Returning Officer and order was passed explaining the circumstance. Ext. 4 is also the order sheet in which some discrepancy was detected and the R.O. had called for the report from the Office in this regard Ext-3/A is a petition filed on behalf of one candidate Sri Uday Prakash Mandal in which discrepancy in the number of votes polled according to the Presiding Officers' diary and the number of votes was pointed out. Ext. 3/8 is also a petition tiled by Sri Upendra Prasad Singh, a candidate in this regard. Ext. 5 is the copy of order passed by the. R.O. on the petition of a candidate Sri Shobhakant Mandal. On the other hand, one document has also been brought on the record on behalf of respondents which is round-wise counting slip.
10. So far as the witnesses for the petitioner are concerned, P.W. 1, the election petitioner himself has supported his case in the election petition in which he appears to have stated about the incident which happened when he was leading an agitation as the president and Chairman of the Employees' Union of N.T.P.C. Kahalgaon and he tried to make out a case of bias against Sri O.P. Bakhala, the then S.D.O. Kahalgaon. He has stated that the R.O. himself was present when the counting began and subsequently he disappeared and he appeared only after the 7th - round of counting was over. Then, he took his seat on the central table removing the A.R.O. and then bunglings were committed. He also stated that at a time, after the 7th round of counting, about 20 persons were brought and they replaced the original staff engaged in the counting. According to him, it was with some ulterior motive to commit bungling. He also stated that his ballot papers were mixed with the ballot papers of C.P.I. Candidate, respondent No. 1 and, thus, irregularities and bunglings were committed. He also further stated that two of the ballot boxes were found tampered and originally the same were not counted but subsequently the same were counted on the orders of the R.O. and the District Magistrate who came to the coveting hall subsequently. He also further stated that the R.O. had announced before the counting started that 1,23,000 ballot papers where to be counted in all but actually when the counting ended, it was discovered that 1,46,000 ballot papers were counted. However, it appeared that the winning candidate had a lead of about 1200 votes and he had prayed for recounting. The same was refused by the R.O. and, therefore, he states that there was bungling committed in the counting and though he had received the highest number of votes, the respondent No. 1 was declared elected. He also further added that the wanted the certified copy of certain documents for preparation of the Election petition, but the same were not supplied to him in spite of the direction of the Chief Electoral Officer, Bihar. In his cross-examination, he has stated that he got. information from his counting agents who were taking note of the proceeding but no such note was produced in Court, though he stated that the notes were available, at his residence. Hs also further stated that he had learnt about the transfer of the S.D.O. from the official circle, but he was not in a position to produce any document in this regard. He also further stated that though Sri Bakhala, S.D.O. was appointed the Returning Officer for his constituency, he did not have any apprehension regarding his complicity and, therefore, he did not. file any objection against him before the Election Commissioner; though he states that he had realised that the R.O. was committing bungling in the matter of appointment of presiding Officers and selection of polling booths. He has further stated that he had written to the Election Commission to remove the S.D.O.-cum-R.O., but no such document could be produced. He, however, admitted that he did not mention this fact in the election petition that his counting agents were taking down notes regarding irregularities detected in course of counting. He has further admitted in his cross-examination as R.O.-cum-S.D.O. Kahalgaon that he was the R.O. of two constituencies, i.e., Kahalgaon Constituency and the present Constituency. He has further stated that the counting in the 2nd Phase was completed in 13 rounds, and that the R.O. returned to the counting hall after the counting of 7th round was over. He further stated in his cross-examination that he did not make any complain to the Election Commission regarding his lack of confidence against the R.O. after the polling was over and the counting had not begun. He also stated that he had asked the Central Observer to recommend for recounting and he had made this request in writing, but no such paper has been filed further, he stated that he had seen his ballot papers being mixed with the Ballot papers of respondent No. 1 at the time of preparation of bundles and as the Central Observer was also present, he had also made a complain to him in writing but no such paper has been filed. Further, he stated that he had seen the seals of some ballot boxes, tampered and he had objected to the ballot papers in those boxes being counted and it might have been noted in the record of B.S.F., but no such document has either been called for or produced. P.W. 2 happened to be the counting agent of the petitioner on table No. 2 in course of counting and he has stated that the sitting arrangement for the counting agents was not satisfactory. Apart from this, he does not speak of any other irregularity. He has also, however, stated that the ballot papers were clearly visible to him from the place where he was sitting in course of counting and he had also taken note of this fact as to how many ballot papers were pilfered in a particular round. He also further stated that he had shown this paper to this candidate, the election petitioner and had kept the same somewhere in his house. Neither this part of the statement has been supported by the election petitioner nor the paper has been produced in Court. P.W. 3, was the counting agent of the petitioner on table No. 1, and he has stated that it was announced before the counting started that 1,13,000 votes were-to be counted, but after the counting was over, it. was discovered that 1,23,528 ballot papers were counted. He has stated that he had seen the counting personnel mixing the ballot papers of his candidate with the ballot papers of C.P.I., candidate and accosted him and had raised objection and the R.O. had intervened and removed him. He has also stated that there was no discrepancy detected during the comparison of actual number of ballot papers recovered from the boxes and the ballot papers shown as used by the Presiding Officers which is against the case of the petitioner, He, however, could not give the details of the ballot papers counted either in favour of his candidate or in favour of C.P.I., candidate, respondent No. 1. P.W. 4 happened to be the counting agent, of an independent candidate. Sri Pradip Kumar and he was present in the counting hall, and according to him, the candidate excluding the C.P.I, candidate, respondent. No. 1, had raised objection regarding sitting arrangement in the counting hall He also stated that some ballot papers of the petitioner were mixed with the ballot papers of the C.P.I. candidate, respondent No. 1. He also further stated that in course of counting, two ballot boxes of booth Nos. 78 and 181 were found tampered as the seals were not properly fixed, but at a later stage when the District Magistrate arrived, the ballot papers of those boxes were ordered to be counted and the same was counted. So far as the bungling in the matter of preparation of bundles of 25 ballot papers each is concerned, he has admitted in his cross-examination that he had no occasion to count the ballot papers in a bundle of 25. He also admitted that he had never filed any petition regarding irregularities being committed by the Officers. He also does not remembers as to how many ballot papers were recovered from a tampered ballot box of booth No. 78. He. has also stated that he was taking note of the fact during the counting of ballot papers which Was with him but the same was not available. P.W. 5 Raghubansh Singh was also an election agent of an independent candidate Smt. Raj Kumari Devi and he has stated that there were barricading all around the counting tables in the counting hall and the counting agents were not in a position to look into the Activities going on the counting table, and, therefore, objection were raised by the parties. However, he has also stated about the presence of preliminary force inside the counting hall. He also stated that after the 1st phase of counting was over, it was announced that 1,13,000 and odd ballot papers were to be counted, but ultimately the votes counted appeared to be 1,23,000 and odd and he also stated that some irregularities were committed in course of counting. He also stated that he had raised some objections, regarding the irregularities being committed but no one paid any attention to it. In course of cross-examination, he has stated that, in course of counting, the election petitioner himself was raising objection vociferously and he further stated that he was the only candidate who was raising objection. He further stated that the Activities going on in the counting tables were not clearly visible from the place where the counting agents were sitting in course of counting and he did not see the counting of the complete round by standing over a particular table in a particular round because he was not a counting agent; rather, he was the election agent. He has not stated as to what was the source of his information regarding what he stated. P.W. 6 Kishundeo Mandal, who was the counting agent of one Sri Kailash Prasad, found that in course of counting, in the counting hall, people were jostling in front of the counting table. He also further stated that Paramilitary forces were going and coming in the counting hall and after the 7th round, they stayed in the hall and he also stated that the paramilitary force used to intimidate and threaten the persons who used to raise any objection. He has also stated that at the time of preparation of bundles candidate-wise, the ballot papers cost in favour of other candidates were being included in the bundles of C.P.I., candidate and he also further stated that after the end of 1st phase it was announced that 1,13,000 and odd votes were to be counted, but subsequently it turned as 1,23,000 and odd. In his cross-examination, he has given very absurd reply. He stated that he does not know as to for which candidate he was deposing. He also state +Hat in the 1st phase of counting, boxes were brought in one round Oily and there were 13 rounds in the 2nd phase. He further stated that two benches each were kept in front of each table in two rows and while live persons each were sitting on the two benches, the rest of the persons were standing. He also further stated that no observer of the Election Commission ever came to the counting hall. He stated that he never saw the complete process of counting by standing on a particular table in a particular round of counting in the 2nd phase and he admitted that he could not produce any document in support of his statement that the R.O. had announced after the counting that 1,13,000 votes were to be counted in all. P.W. 7 also happens to be a counting agent of an independent candidate Suit. Raj Kumari Devi. He was on table No. 5. According to him, the benches were kept outside the barricading but the sitting accommodation was quite insufficient and the Preliminary forces were present inside the counting table. According to him, the process of committing irregularities-accelerated after the 7th round. Apart from supporting other parts of the allegation; of the petitioner, he stated that up to the 7th round, in the 2nd phase, the Congress candidate was leading, but he started loosing after the 7th round which appears to be totally incorrect, according to the position shown in the counting chart which is also mentioned in detail in the additional affidavit filed on behalf of petitioner. It appears that in the 1st round of counting in the 2nd phase, while Sri Ambika Prasad, respondent. No. 1 had received 2074 votes, petitioner Sri Dilip Kumar Sinha had received 3424 votes. However, in the 2nd round, whereas respondent No. 1 received 2414 votes; petitioner received 2361 votes. In the 3rd round, the respondent No. 1 received 3121 votes while the petitioner received 2079 votes. In the 4th round, 2621 votes were counted in favour of respondent No. 1 and 2805 votes were counted in favour of petitioner. In the 5th round, 2919 votes were counted in favour of respondent No. 1, and 2759 votes in favour of the petitioner. In the 6th-round 2357 votes were counted in favour of respondent No. 1 and 2432 votes were counted in favour of the petitioner. In the 7th round, while 2721 votes were counted in favour of respondent No. 1, 2388 votes were counted in favour of the petitioner. Thereafter, in the 8th round, 2994 votes were counted in favour of respondent No. 1 but only 1857 votes were counted in favour of petitioner. In the 9th round of counting, whereas 3437 votes were counted in favour of respondent No. 1, 2348 votes only were counted in favour of petitioner. But in the 10th round, while 2691 votes were counted in favour of respondent No. 1, the total number of votes counted in favour of petitioner was 3340. In the 11th round also, 2140 votes were counted in favour of respondent No. 1 but 4014 votes were counted in favour, of petitioner. In the 12th round also, 2682 votes were counted in favour of respondent No. 1 and 2694 votes were counted in favour of petitioner. However, in the 13th round, whereas 1241 votes were counted in favour of respondent No. 1, only 677 votes were counted in favour of petitioner. Thus, from perusal of the chart, the claim of the petitioner does not appear to be correct that whereas he was leading against the respondent No. 1 prior to the 8th round, he started loosing in the subsequent rounds. The fact remains that the petitioner was leading in the 1st round and he was trailing in the 2nd and the 3rd round. Then he was leading in the 4th round, but trailed in the 5th round. Then he was leading in the 6th round and trailed in the 7th round. In the 8th round, he was trailing and in the 9th round also he also trailed. Thereafter he led in the 10th and 11th round and he had a marginal lead in the 12th round also and he ultimately trailed in the 13th round. Therefore, the trend, as indicated in the petition as well as in the statement of the petitioner is not substantiated by the table of votes counted in favour of the petitioner and his rival candidates.
11. So far as the witnesses for the respondents are concerned, the respondent No. 1 has examined himself as D.W. 1 and he has denied the entire allegation in the petition as well as in the statement of election petitioner, P.W. 1. D.W. 2 was the counting agent of respondent No. 1 on table No. 1 and he has also denied all the allegations and stated that the sitting arrangements were also satisfactory and there was no irregularity being committed during the counting, 'Similar is the statement of D.W. 3 who was the counting agent of respondent No. 1 on table No. 9. D.W. 4 Keshav Prasad Yadav was also the counting agent of the respondent No. 1 on table No. 5, and he has also stated that the sitting arrangements were satisfactory and there was no bungling committed. He, has stated that one of the staff on his table was changed, but it was on account of the problem he developed due to fatigue. D.W. 5 Bhagwan Paswan has also stated that there was no irregularity committed in course of counting. Similarly, D.W. 6, Bhola Yadav who was the election agent of a candidate Sri Ramesh Pandey has also denied the allegation in the election petition. D.W. 7 Arbind Chourasia was the election agent of an independent candidate Sri Surya Narayan Pathak and he has also denied the allegation. D.W. 8 Hari Mohan Mandal has also denied the allegation. He was counting agent of respondent No. 1 on table No. 8. D.W. 9 Manohar Kumar who was the counting agent of respondent No. 1 on table No. 2 has also denied it. P.W. 10 Arun Kumar Singh happens to be the then District Magistrate-cum-District Election Officer of Bhagalpur and in that capacity, he had gone to the counting hall of 165-Pirpaiti Constituency during the counting and on being satisfied, by him, some personnel engaged in the counting were changed and it was on the request of the R.O. because some of the staff were totally exhausted and fatigued as the counting was proceeding continuously. He has stated that he did not receive any complain regarding any kind of irregularity being committed in the counting. D.W. 11, C.P. Bakhala happened to be the S.D.O. Kahalgaon at the relevant time and in that capacity he was the R.O. of the constituency concerned. He has stated that because he happened to be the R.O. for two constituencies, he had authorised Sri Yogalal Mishra, A.R.O. to look after the counting in the counting hall and one observer on behalf of the Election Commission was also visiting the counting hall from time to time. He has stated that in his absence the said A.R.O. Sri Yogalal Mishra was conducting the counting and he used to come to the counting hall from time to time and used to supervise the counting also. He has denied all other allegations regarding presence of a room behind the central table, irregularity in keeping the basket behind the central table and presence of paramilitary force inside the counting hall. Thus, he has denied all the allegations made by the petitioner in the election petition, as also in his statement in Court as P.W. 1. However, he has stated that some times some discrepancies used to be detected which was on account of calculation mistake-and the same were noted down by the counting supervisors, but he has clearly stated that the petitioner did not file any petition before him alter the counting that re-counting should be made. He has stated that some re-placements in the counting staff were made, no doubt, but it was not done in illegal or irregular manner. He has stated that the reserved personnel provided by the District Magistrate were formally appointed by him as counting staff. Similarly, D.W. 12, Yogalal Mishra, who happened to be the A.R.O., has also emphatically denied the allegations. According to him, he was present in the counting hall from the beginning to the end. He has stated that there was no complain made to him regarding inadequacy in the sitting arrangement anise also denied the dram being kept in the left side of the central table and not in front of the table. He has also denied that there was any paramilitary force present inside the counting hall and the counting took place in proper manner and there was no irregularity committed. He has also stated that all the decisions regarding the disputed votes were taken on the central table in presence of the candidates or their election agents. He has also stated that the petitioner did not make any complaint to him that his ballot papers were mixed with the ballot papers of C.P.I. candidate, respondent No. 1. He has stated that however,- he had found some discrepancy in the number of votes in Form-16, but it was on account of some arithmetical mistake. He has, however, admitted that some complaints were made to him from time to time and the same were properly maintained in the records. He had also received complaint regarding ballot boxes of booth Nos. 78 and 181 and there was proper inquiry in the matter and the matter was settled. It appears that in this regard, the petitioner had himself given in writing at one stage that the irregularity pointed out regarding Booth No.181 was misconceived.
12. It is significant to note in this regard that though several witnesses have been examined on behalf of petitioner as well as on behalf of respondent No. 1, all of them can be termed as partisan witnesses but so far as D.Ws. 10, 11 and 12 are concerned, they are Official witnesses, and, therefore, they could be treated as independent witnesses and trustworthy witnesses and they have completely denied the allegations in the election petition.
13. It has been pointed out by the learned Counsel for the respondent No. 1 that so far as the allegation regarding the feet that in the beginning it was declared that 1,13,000 votes were to be counted but, in fact, 1,23,000 and odd votes were recovered from the ballot boxes in course of counting, this part of the allegation appears to be imaginary and without any foundation. It has been pointed out that in the election petition as well as in the evidence of the petitioner and some of his witnesses, it was stated that at the beginning of the counting it was announced that 1,13,000 votes were to be counted, in all, but subsequently his own witnesses started telling that this announcement was made after the conclusion of the first phase of counting. It is submitted that neither there is a rule that such announcement should be made before conclusion of the counting nor any such any announcement was made which is apparent from the very fact that none of the witnesses nor the petitioner could be able to say as to who was the person to make this announcement and, therefore, this allegation has no substance and can be dismissed without any detailed discussion. So far as the allegation that about 5000 ballot papers of the petitioner were counted in favour of the respondent No. 1 by adopting the method of mixing the ballot papers of the petitioner with that of respondent No. 1 is concerned, all the witnesses, including the petitioner, have deposed regarding mixing of ballot papers of the petitioner with that of the respondent No. 1, but no complaint nor even a chit of paper was filed by way of protest regarding this kind of bungling being committed by the counting staff. In this regard, it has been stibnite that simply the petitioner has given a lane excuse that his protest petition was not entertained by the R.O. which has been emphatically denied by the R.O. and the A.R.O. as P.Ws. 11 and 12 respectively. It has been submitted in this connection that had it been so, the petitioner could not have remained silent and satisfied. It has been pointed out that he earlier happened to be the Minister of State of the State of Bihar and, therefore, he was likely to raise hue and cry over this issue and could have sent message to the Election Commission of India also. He could have also reported the matter to the District Magistrate who was available in the counting hall, as admitted by him as P.W. 10, but nothing of the kind was done. Therefore, it appears to be just a vague and baseless allegation.
14. In this regard, learned Counsel for the respondent No. 1 cited the decision in the case of Baldeo Singh v. Teja Singh Swatandra (dead) and Anr. wherein it has been observed by their Lordships that the Court from upon frivolous and unreasonable refusal of recount by the Returning Officer, no doubt, but in certain cases the allegations themselves are misconceived and without foundation, because the re-counting cannot be ordered merely on frivolous and unreasonable demand for recounting. Their Lordships have further observed in this connection that mala fide aspersions on counting staff or false and untenable objections regarding validity of votes also fall under the same category. It has been observed by their Lordships that in accordance cases to be reasonably liberal in recheck and recount by the Returning Officers, there is no difficulty but, after all, fairness at the polls must not only be manifest but misgivings about the process must be erased at the earliest. It has been observed in this connection that the instructions in the hand-book of the Officers are fairly clear and lay down sound guidelines. Therefore, judicial power to direct inspection and recount is undoubted, but will be exercised sparingly. Their lordships observed that "election petitions come to Court after a month and a half and ripens for trial months later and then the appeal, statutorily vested, inevitably follows. In this operation, litigation which is necessarily, protracted, liberal recount or lax re-inspection of votes may create belated uncertainties, false hopes and a hovering sense of suspense, long after the elections are over, Governments formed and legislature begin to function."
15. It has also been pointed out by the Counsel for the respondent No. 1 that one inherent and patient defect of the election petition is apparent on the fact of the record that the election petitioner has not stated either expressly or impliedly that, in fact, his counting agents were preparing note regarding commission of illegality and irregularity in counting. So the figures of irregularities stated in the ejection petition with arithmetical precision and exactitude are imaginary, because the very basis on which the election petitioner arrived at those figures has not been stated in his petition nor the names of the counting agents who supplied the figures to the election petitioner, have been mentioned.
16. Learned Counsel for the respondent No. 1 cited a Case Law. in the case of Jitendra Bahadur v. Krishna Behari , In this case it has been observed by their Lordships that any kind of allegation in vague term cannot be entertained and should not be entertained by the Court and unless the material facts are stated, this kind of allegation should be termed as vague and baseless.
Their Lordships have observed in thisYegard as follows:
The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as to afford a basis for the allegations made in the petition. The facts stated in paragraphs 13 and 14 of the election, petition and in Schedule 'E' are mere allegations and are not material facts supporting those allegations; This Court in insisting that the allegation petitioner should state in the petition the material facts was referring to appoint a substance and not of mere form. Unfortunately the trial Court has mistaken the form for the substance. The material facts disclosed by the petitioner must afford ah adequate basis for the allegations made. Here it was further been observed that the trial Court was of the opinion that if the election petitioner in his election petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material fact. In the instant case, apart from giving certain figures, whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the Congress-Nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information. It is not his case that they maintained any notes or that he examined their notes, if there were any. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made.
It has further been submitted that the petitioner and his witnesses have developed the case by giving go by to the pleadings in the petition and introduced anew story by adding the evidence and they have stated categorically that they were preparing notes regarding the illegality and irregularity in the counting of ballot papers. It has been pointed out that the petitioner stated in his cross-examination that the counting agents were also noting the illegality and irregularity committed by counting staff from time to time during counting but he admitted that he did not mention this fact in his election petition. Therefore, it is manifest from the evidence that the entire allegation to this effect is imaginary and concocted and, therefore, it has been submitted on behalf of respondent No. 1 that the allegations as made in the election petition are after thought and figment of imagination and the same appears to have developed within 45 days when the election petition was presented in the Court.
17. In this regard, it has also been pointed out that in the case of Chanda Singh v. Shiu Ram it has been observed by their Lordships as follows:
Rule 63: Certainly states that the demand for recount may be rejected, if it appears to him (R.O.) to be frivolous or unreasonable, and this requirement, it is argued, has been violated. There is no special charm in phrases like 'frivolous or unreasonable'. What is not reasonably grounded or seriously supported is unreasonable or frivolous. Against the background of the paramount consideration of the secrecy of the ballot, the Returning Officer was right in dismissing the request benefit of credible factors and unbacked by clearly articulated apprehensions. We may mention even at this stage that here the lead is not tiny going by the narrowness of margin by which many candidates are returned. Suspicions of possible mischief in the process or likely errors in counting always linger in mind of the defeated candidate when he is shocked by an unexpected result. The Returning Officer has to be careful, objective and sensitive in assessing the legitimacy of the plea for re-running the course of counting. Victory by a very few votes may certainly be ground to fear unwitting error in count given other circumstances tending that way.
It has further been observed by their Lordships that, Let us now proceed to see what further materials have been furnished in the election petition to educe the Court to re-open the ballot boxes and order a re-count, assuming that in some honest instances, genuine information of mistake and malpractices may be gained days later. The passes of time often embellishes ideas and imports inspiration and the petitioner by April 26 was equal to the expensive precision of a well grounded demand for recount according to the legal cannons settled by this Court. What was a mere bud of suspicion followed into several figures of malpractices and it was alleged with surprising accuracy that 1200 votes polled in favour of the petitioner were illegally declared invalid by the Returning Officer.
It has also been observed by their Lordships as under:
Allegations in similar arithmetical strain followed in paragraphs 5, 6 and 7 of the election petition. A separate petition on substantially like lines under Section 100 of the R.P. Act 1951 was filed giving graphic descriptions of the great speed of the counting, of the purposeful 'mistakes' in the number of votes which were not signed by the Presiding Officer and so on. Without hesitation, one might say that this too perfect case for a recount was a clever after-thought, if only one looks at Exhibit P.W. 4/1 for a refreshing contrast In this background, it has been observed by their Lordships that "the learned Judge of the High Court heard the evidence, rejected the demand for a recount and declined to accept the loyal depositions. A chorus of partisan voices may not produce a symphony of sure truth. If the basic facts are found against-and there is nothing worthwhile in the evidence to persuade us to a contrary conclusion, there is no foundation for the relief of recount.
18. It has also been pointed out by the learned Counsel for the respondent No. 1 that it has been stated in the petition in paragraph 30(ii) to the effect that in every round, about five hundred ballot papers of the petitioner were mixed with the ballot papers of the respondent and the petitioner calculates that 5000 ballot papers of the petitioner were mixed with the ballot papers of respondent No. 1 which were counted in his favour. It has been pointed out that it is surprising that the irregularities were commenced from the 8th round to 12th round of counting, as alleged, and partly in the 13th round. Thus, by simple method of arithmetic's, the total should have been.2000 ballot papers only. Therefore, it is apparent that the figure of 5000 mentioned is highly imaginary. It has been pointed out that it is apparent that in the 10th round of counting, the petitioner got a substantial margin of lead and similarly in the 11th round also, petitioner got sufficient margin of lead over respondent No. 1 and in the 12th round, the petitioner received more than the respondent No. 1. Therefore, it does not appeal to reason how the petitioner was leading over respondent No. 1 till 7th round and started loosing after the 7th round because of the arrival of the R.O. and the District Magistrate. This allegation is devoid of logic.
19. However, in paragraph 30(iii), there was allegation that ballot boxes of Booth Nos. 78 and 181 were found unlocked and the ballot boxes were tampered. However, the number of total ballot boxes tampered, has not been given but on oath the petitioner has stated that four ballot boxes were tampered with. But, it appears that when the allegation was verified in presence of candidate and the observer of the Election Commission by the R.O. The seals of the ballot boxes were found intact, though the lock was defective. It appears that because of the defect in the lock, the ballot boxes could not be locked properly, but the boxes were kept in ganny bags and were sealed and the seals were found intact. Therefore, it cannot be said that the ballot papers recovered from those boxes were fake or not genuine ballot papers. The Returning Officer or the Assistant Returning Officer has, therefore, properly exercised their discretion in the matter, by allowing those ballot papers in those boxes to be counted after verification. It has also further been submitted that the petitioner has made allegation that there was discrepancy between Form-16 Part-I prepared by the Presiding Officer of the polling Booth concerned and the ballot papers accounts in Form-16 Part II prepared by the supervisor of the counting table. The allegation has been made in the petition in paragraph 30(iv) supported by the amendment petition subsequently, filed after more than a year, but it has not been stated that the so-called discrepancy was witnessed either by the petitioner or by his counting agents. It has been submitted in this regard that any kind of irregularity, even if committed, cannot be treated as a factor to declare the election of the petitioner void, unless it materially affects the result. This fact has not been stated on behalf of the petitioner in the election petition or in the amendment petition filed subsequently. It is pointed out on behalf of respondent No. 1 that difference of votes polled and counted in favour of respondent No. 1 and the petitioner is 1200 and odd. It has been pointed out that according to Section 100(1)(d)(iv) of the Act, it was not avoid the election of the returned candidates unless the result of the election is materially affected and since there is no pleading or evidence to this effect, that the so called discrepancies have caused prejudice to the election petitioner and the discrepancies have materially affected the result of the election, such a plea cannot be accepted and allowed. It has been submitted in this regard that in such a situation, it was necessary for the petitioner to examine the Presiding Officer and the Counting Supervisor concerned to explain those discrepancies as the onus was on the petitioner himself, but he has not done so. Therefore, it has been submitted that: this discrepancy might have occurred on account of arithmetical error and its possibility cannot be ruled out. Therefore, it has been submitted that, non-explanation of the material witnesses like Presiding Officer concerned and the Counting Supervisor concerned on the part of the election petitioner is sufficient to draw adverse inference against the election petitioner.
20. The case law on this point has been cited as reported in the case M. Channa Reddy's case, (40 Election Law Report, Page 390). It has been submitted that it has been made very clear by their Lordships of the Supreme Court in this case that such discrepancy cannot be treated as aground to order for recount, unless it is pointed out that it has materially affected the result of the election. It has been pointed out that the allegation in paragraph 30(iv) of the petition was known to the petitioner in course of counting, but he kept silence and did not protest throughout the process of counting and in this regard, it has been observed by their Lordships in the case of Baldeo Singh (supra), "the Court negatived the charges on sound grounds and we are disposed to agree". Their Lordships felt that the learned Judge rightly observed that had there been any manipulation by the counting staff, the matter would have been immediately taken to the notice of the Returning Officer and reference to it would have been made in the two applications to the Returning Officer for recount or at least in the application to the Election Commission for Inspection on March 17, 1971. Their silence really silences the grievance. In deed, it must be stated with satisfaction that althovigh Government Officials at the sub-ordinate level, have been time and again, going on strike, starting agitations and making demands almost every where in the country, hardly any serious or wide-spread instance of foul play has been established in their functioning in the election process over the last span of a quarter of a century." Therefore, it has been submitted that since there was ho petition filed to this effect, either before the Returning Officer or to the Chief Electoral Officer of the. State or to the Election Commission, this kind of allegation cannot be treated as genuine and bonafide. It has further been submitted that the election petitioner exercised his fertile mind arid concocted the allegation as such. In paragraph 30(v) of the election petition allegation has been levelled to the effect that after initial stage of counting, 5000 votes were thrown out and equal number of unused ballot papers were mixed after stamping the same in favour of C.P.I. candidate is nothing but concoction. Therefore, it has to be ignored. Finally, the learned Counsel for the petitioner has cited several decisions in this regard, regarding the order of inspection of ballot papers and recount.
21. The 1st case cited in this regard is the case reported ill the case Ram Sewak v. H.K. Kidwai . In this case, it has been observed by their Lordships as follows:
An order for inspection may not be granted as a matter of course: having regard to the insistence upon the society 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 ballot papers is necessary.
The Court further proceeded to observed, But an order for inspection of ballot papers cannot be granted to support the vague plea 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 and order for inspection may undoubtedly, if the interest 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.
22. In another case, Dr. Jagjit Singh v. Giani Kartar Singh , it has been observed by their Lordships is as follows:
The true legal position in his matter is no longer in doubt. Section 92 of the Act which defines the power of the Tribunal, in terms, confers on it, by Clause (a), the powers which are vested in a Court under the Code of Civil Procedure, When trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain important considerations. Section 83(1)(a) of the Act requires, that an election petition shall contain a concise statement of the material facts on which the petitioner relies and, in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were improperly rejected or invalid votes were improperly accepted, would not serve the purpose which Section 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material fact which would enable the Tribunal to consider whether in the interest of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of secrecy of the ballot papers cannot be ignored and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some casts, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirement of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. We do not propose to lay down any hard and fast rule in this matter: in deed, to attempt to lay down such a role would be inexpedient and unreasonable.
23. Another case cited in this connection is Srnt. Sumitra Devi v. Sheo Shankar Prasad Yadav and Ors. . In this case, it has been held by their Lordships as under:
In the case at hand, the allegations in the election petition were vague and the petition did not contain an adequate statement of the material fact. The evidence adduced by the appellant to prove the allegation was found unreliable. No definite particulars were also given in the application for inspection as to the illegalities alleged to have been committed in the counting of ballot papers. A recount will not be granted as a matter of right but only on the basis of evidence of good grounds for believing that there has been a mistake in the counting. It has to be decided that in each case whether a prima facie ground has been made out for ordering an inspection.
24. In the case L. Siddappa v. K. Chanddppa their Lordships of the Supreme Court observed as follows:
Once a community has gone to the polls and the voters exercised their franchise, it is necessary for an election petitioner to show that the candidate is not entitled to the seat. In other words, the burden originally lies on the election petitioner and he cannot succeed unless he discharges that burden.
25. In the case Arun Kumar Bose v. Mohd. Furkan Ansari. 1983 SC 1311, it has been observed by their Lordships as follows:
In the absence of a recrimination petition conforming to the requirements of Section 97 of the Act, the appellant who happens to be an Advocate and is presumed to know the law was not entitled to combat the claim of the election petitioner on the ground that if the remaining rejected ballot papers had been counted, the election petitioner would not have been found to have polled the majority of the valid votes.
26. In the case Han Ram v. Him Singh it has been observed by their Lordships as follows:
When no details and particulars were given nor was it even mentioned whether the polling agent of the respondent had made any note of the facts that votes were actually cast for dead persons and the number of these voters, the allegations made by the respondents in his application for inspection were frightfully vague. In this light, it has been observed:
It is manifest that the attempt of the respondent was nothing but to fish out the matter for challenging election of the appellant and is clearly violated the sanctity and secrecy of the electoral process and the order of the High Court allowing such prayers, of the respondent for inspection was illegal.
Again in the case M.R. Gopalaimshnan v. Thachady Prabhakaran 1995 Supp (2) SCC 101, it has been held by their Lordships as under:
It may be pointed out here that the true legal position in the matter of allowing or disallowing a request for recount is no longer in doubt but well settled, That the Tribunal or the Court trying an election petition has power to direct inspection and recount of votes, if the material facts and particulars are pleaded and adequate grounds are found to exist for directing such recount in the interest of justice is now well settled. While doing so, however,, the provisions contained in Section 94 of the Act may not be ignored but the same be given due weight and consideration before directing inspection and recount. Section 94 of the Act directs that 'secrecy' of voting not to be Infringed'. It directs that no witness or other person shall be required to disclose for whom he has voted at an election, particularly, in view of the statutory rules which provide adequate safeguard for proper conduct of the counting and for testing the validity or invalidity of the ballot papers. The rules relating to counting of votes in Parliamentary and Assembly Constituencies are contained in Part IV of the Conduct of Election Rules, 1961. Rule 51 provides for the time and place for counting of votes. Rule 52 relates to the appointment of counting agents and revocation of such appointments while Rule 53 makes provision for admission of counting officers and counting assistants, as may be appointed to assist the Returning Officer in the counting; persons authorised by the Election Commission; public servants on duty in connection with the election and; candidates their election agents and counting agents; fixing the place for counting. Further Rule 54 contemplates that the Returning Officer shall appraise all persons present in the counting hall the provisions of Section 128 which relate to the maintenance of secrecy of voting. Rule 55 deals with scrutiny and opening of the ballot boxes after the same are inspected by the counting agents present, at the particular table with regard to the seal which may be affixed thereon to satisfy themselves that they are in tact. In addition to this, the Returning officer himself has to satisfy that none of the ballot boxes have been tempted with and in the event the Returning Officer is satisfied that any ballot box has, in fact; been tampered with, he shall refrain from counting the ballot papers contained in the box and take steps in accordance with Rule 58 of the Act. Further Rule 56 provides the mode of counting, scrutiny and rejection of the ballot papers, if found to be invalid for any reasons pointed out in the said rule. Rule 56 also makes provision for raising of objections with regard to any ballot papers and deal with it in accordance with law. From this elaborate procedure, right from the point of opening of the ballot box up to the stage of sealing the ballot papers, after the counting is over, it is evidently clear that the rule and the procedure of counting provide the candidates and their counting agents sufficient and adequate opportunity to see and examine and raise objections, if any, in respect of any ballot paper with regard to its validity or otherwise and it is only after objections, if any, the ballot paper is admitted as valid or invalid, as the case may be. Not only this, but even after the completion of the process of counting, a provision is made in Rule 63 to make a demand to the Returning Officer for recount of the votes either wholly or in part stating the ground on which the demand for such recount, is made. It is only after the compliance of this elaborate procedure that the Returning Officer prepares the result sheet in Form 20 and declares the result.
27. In another case. Bhabhi v. Sheo Govind , it has been observed by their Lordships that question of inspection of ballot papers and recounting should be considered in the light of guidelines in it. These guidelines are:
(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;
(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;
(4) That the Court must come to the conclusion that in order to grant prayer for inspection, it is necessary and imperative to do full justice between the parties;
(5) That the discretion conferred on the Court should not be exercised in such away so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegation made for a recount, and not for the purpose of fishing out materials.
28. In this regard, the observation of the apex Court in the case of Shri Satyanarain Dudhani v. Uday Kumar Singh and Ors. is also important. It has been observed by their Lordships as follows:
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 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 paper. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered rightly. An order of recount cannot be granted as 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.
29. Accordingly, Issues Nos. 3, 4 and 5 and Additional Issues Nos. 1,1 2 and3 are decided in the negative.
30. Considering the principles laid down by their Lordships of the Supreme Court in several decisions quoted above, it becomes clear that the manners in which the allegations have been made but no positive materials have been produced on behalf of the petitioner in support of his claim, it is not proper and just to allow the prayer of the petitioner. The petitioner, in this view of the matter, is not entitled to any relief, claimed by him in this case. Accordingly, Issue No. 6 is answered in the negative.
31. This notation. is accordingly. dismissed with cost.