Orissa High Court
Rabindra Kumar Mallick vs Panchanan Kanungo And Ors. on 20 November, 1996
Equivalent citations: 1998(II)OLR214
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. Having been vanquished in the Eleventh General Assembly Election to the Legislative Assembly in the State of Orissa from 42-Govindpur Assembly Constituency, by a mere 85 votes, the petitioner has filed this election petition challenging the election of respondent No. 1 and seeking for a relief that he himself should be declared to have been elected.
2. The election took place on 9.3.1995 and the counting took place in Ravenshaw Collegiate School on 11.3.1995 and 12.3.1995. The petitioner who was contesting as a candidate of Indian National Congress secured 55,936 votes, whereas respondent No. 1 who was contesting as a candidate of Janata Dal secured 56,021. The petitioner alleges that the result of the election has been materially affected by the improper acceptance of invalid votes which have been counted in favour of respondent No. 1 and improper rejection of valid votes which should have been counted in favour of the petitioner. It is alleged by the petitioner that the counting took place in two interconnected rooms of small dimension without providing any barricade and due to over-crowding and lack of barricade, the counting agents, especially those of respondent No. 1, handled the ballot papers at the time of counting and as such many bundles of votes were manipulated. It is specifically alleged that in respect of Table No. 8, many ballots meant for the petitioner were kept in the bundles of respondent No. 1 and no corrective action was taken in spite of the protest of the counting agents of the petitioner. Instead of sorting out and counting each ballot paper individually, the officials in charge of counting counted number of bundles as a result of which many valid votes in favour of the petitioner were counted in favour of respondent No. 1 and many invalid votes which should have been rejected were also counted in favour of the latter. It was specifically alleged that the officials in charge of counting did not follow the Handbook for Returning Officers (hereinafter referred to as the "Handbook") issued by the Election Commission and more particularly there was violation of Clauses (n) and (o) of para-24 of Chapter XIV (B) of the Handbook which resulted in materially affecting the result of the election so far as respondent No. 1 is concerned. It has been further asserted that in many ballot papers specially with regard to booth Nos. 112 and 113, the ballot papers had been marked with some instrument other than the instrument which had been supplied for the purpose of marking the ballot papers and as such should have been rejected. It is asserted that about 500 such ballot papers which had been marked not by the instrument containing cross-arrow mark but by some other instrument were illegally counted in favour of respondent No. 1 in spite of protest of the counting agents of the petitioner. Though some such ballot papers were considered as invalid, more than 500 such ballot papers were counted illegally in favour of respondent No. 1, thus materially affecting the result of the election. It is further claimed that a written objection was filed on behalf of the petitioner, but the same was arbitrarily rejected by the Returning Officer without affording any opportunity of hearing to the petitioner or his election agent. It is prayed that in view of such illegalities, the result of the election declaring respondent No. 1 as elected should be set aside and the petitioner may be declared as elected after inspecting and recounting all the ballot papers.
3. Respondent No. 1 in his written statement while denying the main allegations in the election petition has prayed for dismissal of the election petition on the ground of non-compliance with Sections 81, 82 and 83 of the Representation of the People Act, 1951 (hereinafter called the "Act"). It has been asserted by respondent No. 1 that the election petition has not been signed nor presented in the manner required under law and as such should not be treated as a properly constituted election petitioner under the Act. It is further asserted that since the petitioner has prayed for declaring him as the elected candidate, all the candidates who had contested the election should have been impleaded as parties. It is asserted that though, in fact. Ramachandra Misra, son of Gopinath was contesting as a candidate, in the election petition Ramachandra Misra, son of Radhu, had been impleaded as respondent No. 5 and as such the statutory requirement of Section 82 of the Act had not been complied with. It is alleged that none of the annexures to the election petition had been attested by the petitioner to be true copy of the original, as required under the Act. Apart from taking the aforesaid technical pleas, respondent No. 1 has contended that though the ballot papers pertaining to booth Nos. 112 and 113 had been marked by the instrument which had been supplied by the counting officials, many such ballot papers had been illegally considered as invalid by the counting officials and such rejected ballot papers should be recounted in favour of respondent No. 1. However, respondent No. 1 has denied the allegations of the petitioner regarding the irregularities alleged to have been committed in course of counting.
4. Respondents 3 and 5 have filed two separate written statements supporting the stand of the petitioner. However, they have neither adduced any evidence, nor cross-examined any of the witnesses. The other respondents have neither filed any written statement, nor participated in the hearing.
5. On the aforesaid pleadings, the following issues were framed by Hon'ble Mr: Justice D.P.Mohapatra (as in his Lordship then was) by order dated 1.11.1995 :-
ISSUES
1. Is the election petition, as laid, maintainable in law ?
2. Is the election petition barred by limitation ?
3. Is the election petition liable to be dismissed for non-compliance of the provisions of Sections 81, 82, 83 and 117 of the Representation of the People Act, 1951 ?
4. Whether counting agents of respondent No. 1 had free access to the ballot papers in violation of paragraph 27.3 of Chapter-IX of the Hand Book for Candidate and in the absence of barricade as provide d under para 16 of Chapter - IX of the Hand Book for Candidate?
5. Whether counting agents of respondent No. 1 manipulated some bundles and inserted ballot papers properly stamped in favour of the petitioner into the bundles of ballot papers sorted out for respondent No. 1 ?
6. Whether in booth Nos. 112 and 113, ballot papers, were marked with the instrument other than the instrument supplied for the purpose ? If so, what is its effect ?
7. Whether the result of election has been materially affected so far as it concerns respondent No. 1 because of illegalities and irregularities committed by the counting personnel and undue inference in the process of counting by the counting agents of respondent No. 1 ?
8. To what relief, the petitioner is entitled ?
FINDINGS
6. Issues Nos. 1 and 2 :
Since these two Issues relate to the question of maintainability of the election petition, these are taken up first. It has been alleged by respondent No. 1 that the copy of the election petition served on respondent No. 1 through Court does not clearly indicate the name of the third respondent. It is further contended that in the said copy many of the words are not at all legible and as such it cannot be said that true copy of the original petition had been filed. The election petition served on respondent No. 1 has been marked as Ext. E. Referring to the various discrepancies, it has been strenuously contended that a true copy of the election petition had not been served on respondent No. 1 and as such there has been contravention of Section 81(3) of the Act and the petition should be rejected as per Section 86(1) of the Act. The counsel for respondent No. 1 has placed strong reliance upon the decisions of the Supreme Court reported in AIR 1954 Supreme Court, 210 (Jagan Nath v. Jaswant Singh and Ors.) : AIR 1964 Supreme Court, 1545 (Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and Ors.) : AIR 1969 Supreme Court, 872 : (K-.Venkateswara Rao and Anr. v. Bekkam Narasimha Reddi and Ors.) : AIR 1971 Supreme Court 342 (Jagat Kishore Prasad Singh v. Rajendra Kumar Poddar and Ors.) to contend that the provisions of Section 81(3) are mandatory in nature and non-compliance of the provisions contained in Section 81(3) should entail dismissal of the election petition in accordance with Section 86 of the act.
7. The learned counsel for the petitioner, on the other hand, has contended that the law does not envisage that an exact true copy of the election petition should be filed, but if the copies filed are substantially true copies of the election petition, it can be said that the provisions of Section 81(3) have been complied with. It has been contended by him that the copies which were filed being the xerox copies of the original election petition, it cannot be said that true copies of the election petition had not been filed. It has been further contended that merely because a few letters or words here and there were illegible to some extent, it cannot be said that provisions of Section 81(3) had not been complied with, when substantially true copies had been filed and respondent No. 1 had not been prejudiced in any manner. Reliance has been placed by the counsel for the petitioner on the decisions of the Supreme Court reported in AIR 1978 Supreme Court, 840 M. Kamalam v. Dr. V. A. Syed Mohammed; AIR 1984 Supreme Court 305 (Mithilesh Kumar Pandey v. Baidyanath Yadav and Ors.) and AIR 1991 Supreme Court, 1557 (F.A.Sapa etc.,etc., v. Singora and Ors. etc.). It has been'further contended that the decisions relied upon by the counsel for respondent No. 1 relate to cases where allegations of corrupt practice had been made and the strict standard adopted in such cases is not applicable to election petitions where there is no allegation of any corrupt practice.
The aforesaid rival contentions of the parties require careful consideration.
8. Section 81(3) of the Act reads as follows :
"81. Presentation of petitions.
XX XX XX (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition."
The consequence of non-compliance of Section 81 has been provide d in Section 86(1) which runs thus :
"86. Trial of election petitions.
(1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117".
The scope of Section 81 and Section 86 has been considered in several decisions of the Supreme Court which have been cited by both parties. It may not be necessary to refer in detail to the various decisions of the Supreme Court, as the law on the point has been well summarized in the decision of the Supreme Court reported in AIR 1984 Supreme Court, 305 (supra), After referring to several decisions of the Supreme Court, it was held as follows :
"15. On a careful consideration and scrutiny of the law on the subject, the following principles are well established:
(1) that where the copy of the election petition served on the returned candidate contains only clerical or typographical mistakes which are of no consequence, the petition cannot be dismissed straightaway under Section 86 of the Act.
(2) a true copy means a copy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the Court may not take notice thereof;
(3) where the copy contains important omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate it cannot be said that there has been a substantial compliance of the provisions of Section 81(3) of the Act;
(4) Prima facie, the statute uses the words 'true copy' and the concept of substantial compliance cannot be extended too far to include serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy within the meaning of Section 81(3) of the Act; and (5) as Section 81(3) is meant to protect and safeguard the sacrosanct electoral process so as not to disturb the verdict of the voters, there is no room for giving a liberal or broad interpretation to the provisions of the said section."
9. There is no dispute regarding the principles to be followed in such cases, but the main difficulty arises regarding the applicability of the principles to the facts of a particular case. In the present case, there is no allegation of corrupt practice. It is, therefore, contended by the counsel for the petitioner that the rigours of Section 81(3) and Section 86 are not strictly applicable and there has been substantial compliance with the provisions of Section 81(3). The learned counsel for respondent No. 1, on the other hand, has contended that the mistakes or omissions contained in the copy cannot be characterised as mere typographical errors of no consequence and it is very difficult to know about the important allegations in view of the several errors contained in the copy served on respondent No. 1. More particularly it has been contended that from the copy of the election petition served through Court on respondent No. 1, the name of the third respondent is not visible except two letters 'na'. Apart from the aforesaid, there are several other inaccuracies or omissions in the copy served on respondent No. 1 some of which, according to him, are quite material. For example, at page 11, the word occurring after the word "of" in the 4th line is not legible. The first word in the 5th line of page 12 and the first number after the word "dated" in the 19th line are not legible. At page 19, the number occurring in the 4th line is not visible, and so also the second word in the 3rd line of page 22. At page 26, the second word of second line and the number appearing at the beginning of the 12th line are not visible. Similarly, at page 33, the third word in the 27th line is not legible. The missing words or numbers have important bearing for considering the question of recounting of ballots which is the main plank on which the election petition is founded. These mistakes according to the learned counsel for respondent No. 1 cannot be characterised as mere typographical mistakes of no consequence. The various omissions or discrepancies as indicated above had been confronted to the petitioner himself while he was being examined as P.W. 13. In fact, in paragraph - 8 of his cross-examination, P.W. 13 was constrained to admit:
"........... In the Xerox copy served on respondent No. 1 (Ext. E), the name, "Krushna" does not appear to be there and some letters of the name 'Krushna' are faintly visible.........."
P.W. 13 was also unable to decipher several words or numbers which were non-existent in the copy (Ext.E) served on respondent No. 1. From the aforesaid, it has been contended that the copy of the election petition served on respondent No. 1 through Court was not true copy of the election petition and as such the election petition should be rejected under Section 86 for non-compliance with Section 81(3) of the Act.
10. The errors and omissions so meticulously pointed out by the learned counsel for respondent No. 1 appear to be very insignificant and inconsequential. One would be in a position to decipher the missing letters/words without any difficulty. As has been held by the Supreme Court in many decided cases, the copy need not be an exact replica of the original petition and if the copy served is substantially true copy of the original petition and does not create any confusion, the election petition should not be dismissed on the ground of non-compliance of Section 81(3). The provisions of Section 81(3) and Section 86 are not supposed to be a booby-trap to catch the unwary so that every inconsequential typographical or clerical error would result in dismissal of the election petition.
11. It is, of course, true that the name of the third respondent Krushna Chandra Swain is not clearly visible, inasmuch as except the last two letters of the word 'Krushna,' other letters are obliterated evide ntly at the time of preparing the photostat copies. The petitioner was required to implead all the contesting candidates as he himself has sought for declaration that he himself should be declared elected and in the absence of impletion of all the respondents, such prayer of the petitioner for declaring him as to have been duly elected might become vulnerable. However, since respondent No. 1 must have been well aware as to who were the contesting candidates and as respondent No. 3 himself has not raised any objection, it can be concluded that no prejudice has been caused to any candidate, and the election petition specially the prayer relating to declaration of the petitioner as to have been duly elected is not liable to be dismissed on this technical ground.
12. It was also contended by the counsel for respondent No. 1 that the annexures filed along with the election petition had not been attested to be true copy by the petitioner himself and attestation by the Advocate of the petitioner should not be treated as attestation by the petitioner himself. It is, therefore, submitted that there has been violation of Section 81 of the Act. I am unable to persuade myself to accept such contention of respondent No. 1, inasmuch as on perusal of the election petition and the annexures, it is found that the petitioner has signed at the end of each annexure except annexure-1 which is rough sketch plan of the position of the tables inside the counting rooms and merely because the endorsement "true copy, attested" is there at a different place, it cannot be said that there has been no due attestation. In view of such conclusion regarding the factum of attestation, it is unnecessary to refer to the various decisions of the Supreme Court cited by either party.
13. Respondent No. 1 has also raised the question of maintainability of the election petition on the ground of violation of Section 82 of the Act. It has been contended by him that Ramachandra Misra, son of Gopinath Misra, was one of the contesting candidates in the election and originally in the election petition, one Ramachandra Misra, son of Radhu Misra had been impleaded as respondent No. 5. It is not disputed that apart from Ramachandra Misra, son of Gopinath, who contested the election, there is another Ramachandra Misra, son of Radhu of village Jalarpur, as evident from Ext.B, the certified copy of the voters' list. As a matter of fact, notice was served through Court on Ramachandra Misra, son of Radhu, who also entered appearance through an Advocate. Therefore, it is apparent that two persons having the same name 'Ramachandra Misra' were living in the same village Jalarpur and in the original election petition, Ramachandra Misra, son of Radhu Misra, had been impleaded as respondent No. 5, whereas Ramachandra Misra, son of Gopinath Misra was the contestant. Section 82 of the Act provide s that if the petitioner in an election case seeks for a declaration that he or any other candidate should be declared as duly elected, he is bound to implead all the contesting candidates as parties to the election petition. Since such a prayer has been made in the present election petition, it was incumbent upon the petitioner to implead all the contesting candidates including Ramachandra Misra, son of Gopinath Misra, as a party. It is contested on behalf of respondent No. 1 that since Ramachandra Misra, son of Gopinath Misra was not impleaded in the election petition as originally presented, there was non-compliance with the provisions in Section 82 and the election petition should have been rejected under Section 86(1) of the Act. Though such contention is, prima facie, attractive, I am not in a position to accept such a contention, in view of the fact that the defect, if any, was rectified by filing a petition to correct the name of the father of respondent No. 5, which was allowed by Hon'ble Mr. Justice D.P. Mohapatra (as his Lordship then was) vide order dated 25.9.95. As a matter of fact, the order permitting the correction was challenged by respondent No. 1 by filing special leave petition in the Hon'ble Supreme Court of India, but the attempt proved futile. The error in the name of the father of respondent No. 5 was found to be a mere typographical error by the High Court and while passing the said order, it was held that Ramachandra Misra, the contesting candidate, had been impleaded as a party. By allowing the petition, the error in the name of father of respondent No. 5 was allowed to be corrected. It is axiomatic that any amendment relates back to the date of presentation of the petition and, as such, in view of the fact that the error in the name of father of respondent No. 5 was rectified by amendment, it must be taken that Ramachandra Misra, son of Gopinath Misra, had been impleaded from the very inception. Even the finding of Hon'ble Mr. Justice D.P.Mohapatra that the contesting candidate had been impleaded and there was no requirement to describe the name of father of the candidate is binding on me, as it is well settled that principle of res judicata operates at a later stage of the same proceeding in the same Court, though the same may not be binding on the appellate Court. In view of the aforesaid, I am unable to accept the contention raised on behalf of respondent No. 1.
14. It was also contended that the amendment having not been carried out in the election petition within the stipulated period as envisaged in Order 6, Rule 18 of the Code of Civil Procedure, as amended by the Orissa Amendment, the prayer for amendment must be deemed to have been rejected. Order 6, Rule 18, as amended by Orissa Amendment reads as follows :-
"18. Failure to amend after order. -
Where a party has obtained an order to amend and the amendment is extensive, within a time limited for that purpose by the order, or if no time is thereby limited, then, within fourteen days from the date of the order, he shall file a consolidated pleading incorporating the amendments, and he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.
In all other cases, the Bench Clerk shall carry out the amendment."
It is true that the petitioner after the amendment was allowed has not filed consolidated copy of pleading incorporating the amendments so allowed. It is, however, contended by the petitioner that Order 6, Rule 18, as amended in Orissa, is applicable, as provide d in Rule 18 itself, when the "amendment is extensive in nature". It has been submitted by him that the correction of the name of the father of respondent No. 5, as sought for in the amendment petition cannot be said to be an extensive amendment, so as to attract the default provision contained in Order 6, Rule 18. The learned counsel for respondent No. 1, on the other hand, submitted that the word "extensive" does not always mean extensive in volume, but it may mean extensive in effect. He submits that the consequence of change in the father's name has far-reaching effect or is "extensive" and as such the amendment allowed by the Court should be taken to be "extensive". This ingenuous submission of the learned counsel for respondent No. 1 is not acceptable. The fact remains that only a name was allowed to be corrected by the amendment and as such, it cannot be said that the amendment was "extensive" in nature. I, therefore, conclude that non-submission of corrected copy of the election petition by incorporating correct name of respondent No. 5 did not attract the consequences envisaged in Order 6, Rule 18 of the Code of Civil Procedure. The submission of the learned counsel for respondent No. 1 based on Order 6, Rule 18. Code of Civil Procedure, is not, therefore, acceptable.
15. It has been further submitted that no copy has been served on the first respondent carrying out the change in the name of father of respondent No. 5 and in Ext. E, the copy of the election petition served on respondent No. 1, respondent No. 5 continues to be described as son of Radhu Mishra. It is, therefore, submitted that Ramachandra Misra, son of Gopinath Misra, the contesting candidate, is not a party to the election petition, as is evident from the copy served on respondent No. 1. Since the amendment was allowed in presence of counsel of respondent No. 1. it cannot be said that respondent No. 1 has been misled in any way by non-correction of the name of the father of respondent No. 5 in the copy of the election petition served on respondent No. 5. Such omission has not prejudiced respondent No. 1 in any manner and as such this contention of respondent No. 1 is not acceptable.
In view of the aforesaid findings. Issues Nos. 1 and 3 are decided against respondent No. 1.
16. Issue No. 6.
This Issue and Issues No. 4, 5 and 7 are to some extent interlinked. Keeping in view the important question of law raised under this Issue which is also applicable to the other Issues, it is profitable to take up this Issue before taking up Issues Nos. 4. 5 and 7.
Admittedly, in course of counting, it was found that some of the ballot papers were marked with distinguishing circular seal mark indicating the booth number and the constituency number against the votor's name, instead of being marked with the arrow-cross mark seal. It is claimed by the petitioner that such marking of ballot papers by unauthorised instrument came to light during the third round of counting. After it was brought to the notice of the counting officials, such ballot papers which were marked with distinguishing circular seal by the voters were kept as doubtful votes and ultimately it was decided by the Returning Officer that such ballots should be taken as invalid votes. The petitioner contends that before discovery of such invalid votes in course of third round of counting, many such ballots containing the mark of distinguishing circular seal had been counted as valid votes. It is further claimed that about eighty per cent of such votes were in favour of respondent No. 1 and since many such votes have been illegally counted as valid votes, a recounting of the entire ballots should be ordered to weed out such invalid votes. It is further asserted that though such a petition was filed before the Returning Officer and the matter should have been immediately set right by re-verifying the ballots already counted till such discovery was made in course of third round of counting, the officials in charge of counting did not pay heed to the protest of the agent of the petitioner.
The learned counsel for respondent No. 1, on the other hand, has contended that the distinguishing circular seal had been supplied by the officials in charge of election at the time of voting and even assuming that this was improper, the votes marked with such instrument which had been supplied by the officials should not be treated as invalid votes. He, therefore, contends that if need be, the ballots which have been rejected on the ground that they contain the distinguishing circular seal mark instead of arrow-cross mark, should be recounted.
17. In view of the rival contentions of the parties, three questions crop up for decision on this score:
(a) Whether the ballot papers which were marked with distinguishing circular seal instead of by the rubber stamp containing the arrow cross mark should be treated as valid or invalid votes ?
(b) If such ballots shall be treated as invalid, as has been done by the Returning Officer, whether a recounting should be ordered to ferret out such ballots which might have escaped during counting prior to the discovery of Such fact in third round of counting ? and
(c) If such ballots are held to be valid, whether recounting of the rejected ballot papers should be ordered ?
18. Before embarking upon this interesting and important journey, it is necessary to take note of the relevant provisions of the Rules. Rule 38(1) of the Conduct of Election Rules, 1961 (hereinafter referred to as the "Rules") inter alia, enjoins that every baillot paper before being issued to an elector should be stamped on the back with such distinguishing mark as directed by the Election Commission. There is no dispute that the distinguishing circular seal containing the constituency number and the booth number is the instrument prescribed by the Election Commission, which is required to be stamped on the back of the each ballot paper before the same is issued to an elector. It is not necessary to refer to other provisions contained in Rule 38.
Rule 39 prescribed the procedure of voting. Rule 39 (2) indicates about the manner in which a voter has to mark on the ballot paper. More particularly, Rule 39(2)(b) is relevant for the purpose of this case and is extracted as such :
"(2) The elector on receiving the ballot paper shall forthwith :
(a) ** ** **
(b) there make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbol of the candidate for whom he intends to vote."
The underlined portion indicates that the voter has to mark the ballot paper with the instrument supplied for the purpose. In other words, the voter has no choice and he cannot mark the ballot paper with any instrument he likes, but only with the instrument supplied for the purpose. According to the learned counsel for the petitioner, the expression, "the instrument supplied for the purpose" means, the instrument prescribed by the Election Commission and supplied by it to the various Presiding Officers, whereas according to the learned counsel for respondent No. 1 it means, the instrument actually supplied to the voter by the officials in the booth itself.
19. Before deciding about the principle to be applied in such matters, it is necessary to consider the issue relating to fact, namely as to whether the instrument, i.e. the distinguishing circular seal, had been supplied by the officials or not. The witnesses examined on behalf of the petitioner are silent on the point. On the other hand, many voters examined on behalf of respondent No. 1 have stated that such instrument, i.e. the distinguishing circular seal, had been supplied to them by the polling officials for marking the ballot paper. There has been only half-hearted cross-examination of the witnesses in this regard. Respondent No. 1 has also examined the polling officials in the two concerned booths, namely, booth Nos. 112 and 113 who have, predictably enough, denied to have supplied such instrument, i.e. the distinguishing circular seal, to the voters. Such officials have claimed that they had handed over the instrument prescribed by the Election Commission, namely, the arrow-cross seal to the voters. However, such official witnesses have been constrained to admit that they had not tested the instrument before handing over the same to some of the voters. Some such official witnesses who were shown some of the rejected ballot papers containing the distinguishing circular seal mark have admitted that indeed the marks are the same as fixed on the back side of the ballot paper. In other words, the ballot papers had been marked with the distinguishing circular seal on the back side as required under Rule 38 (1) and also on the space meant for indicating the choice of the voter on the other side of the ballot paper. Their evidence also discounts the possibility of the voters surreptitiously bringing inside the booth such circular distinguishing seal. In fact, no such suggestion has been given to the witnesses who have claimed that they had marked the ballots with the distinguishing circular seal supplied by the polling officials. There is no earthly reason why a voter would smuggle from outside such a seal inside the booth. Even assuming that any such voter could have brought such similar looking seal surreptitiously, he could not have made any impression by such smuggled instrument on the ballot paper, unless the said instrument was inked just prior to the actual voting. It is not disputed that the ink-pad was with the polling officials and there was no ink-pad in the voting chamber. Considering all these aspects, I proceed on the footing that the distinguishing circular seal had been supplied by the polling officials to some of the voters possibly due to mistake or may be with knowledge, as the prescribed instrument, i.e. the arrow-cross seal might have been misplaced. The third alternative which had been vaguely suggested by the counsel for respondent No. 1 that the polling officials might have done it deliberately with a view to deprive respondent No. 1 of valuable votes is, of course, very far-fetched and difficult to accept. Be that as it may, the fact remains that such instrument had been supplied by the polling officials to some of the voters at the time of voting.
20. The learned counsel for respondent No. 1 submits that if it is held that such instrument had, in fact, been supplied by the polling officials, it must be held that it was the instrument supplied for the purpose and such the candidates should not be deprived of the benefit of ballot papers which had been marked with such instrument supplied by the polling officials, not the voters be deprived of their right which they had exercised specially when they are not at fault.
The learned counsel for the petitioner has submitted that even assuming that the polling officials had supplied the instrument, since it was not the prescribed instrument, the ballots marked with such unauthorised instrument should be rejected as invalid. He has submitted that when the provisions of the Act or the statutory rule prescribe the manner in which a particular act has to be done, the same should be performed in the manner prescribed, or not at all. It is not necessary to refer to a series of decisions of the Privy Council as well as the Supreme Court on this score, as the aforesaid general principle is well accepted. However, the decisions relatable to election law on this score are few and far between and may be noticed at this stage.
21. The first and foremost decision on this point cited by the learned counsel for the petitioner is the Constitution Bench decision of the Supreme Court reported in AIR 1955 Supreme Court, 233 (Hari Vishnu Kamath v. Ahmad Ishaque and Ors.). In the said case, election of respondent No. 1 to the House of the People was under challenge. The first respondent had secured 65375 votes and the appellant had secured 65201 votes, thus losing out by a margin a nearly 174 votes. In the election petition filed by the appellant, it was contended that 301 out of the votes counted in favour of respondent No. 1 were liable to be rejected under Rule 47 (1)(c) of the Rules framed under Act 43 of 1951 on the ground that the said ballot papers did not have the distinguishing mark prescribed under Rule 28. Rule 28 provide d that the ballot papers to be used for the purpose of voting should contain such distinguishing marks as the Election Commission may decide (similar to present Rule 38). The Election Commission had prescribed that the ballot papers for Parliamentary Constituency should bear a 'green bar' printed near the left margin and those for the State Assembly should bear a 'brown bar'. Due to mistake of the polling officials, the voters in two polling stations were given ballot papers with 'brown bar' intended for the State Assembly instead of ballot papers with 'green bar' which had to be used for the House of the People. The total number of such votes was 443, out of which the appellant had polled 62 and respondent No. 1 had polled 301. Rule 47 (1)(c) of the Representation of the People (Conduct of Election and Election Petitions) Rules, 1951, had prescribed :
"a ballot paper contained in a ballot box shall be rejected if it bears any serial number or mark different from the serial numbers or marks of ballot papers authorised for use at the polling station or the polling booth at which the ballot box in which it was found was used."
As such, in view of the aforesaid rule, it was contended that the ballots which had contained distinguishing mark in shape of brown bar should not have been counted as valid votes and if those votes would have been excluded, respondent No. 1 would have lost the lead of 174 votes and the appellant himself would have secured the largest number of votes. The appellant had, therefore, prayed for setting aside the election of respondent No. 1 and further that he should be declared as duly elected. The Election Tribunal while holding that Rule 47 (1)(c) was mandatory and the ballot papers containing brown bar as the distinguishing mark should not have been counted, refused to interfere with the result of election on the ground that the result had not been materially affected by the erroneous reception of the votes. The writ application of the appellant having been dismissed by the High Court, the appeal was filed in the Supreme Court. The Supreme Court upheld the contention of the appellant and held that the provisions of Rule 47 (1) (c) were mandatory and the ballots which had contained the distinguishing mark other than the mark prescribed under Rule 28 could not have been counted as valid votes and as such if such votes would have been ignored, respondent No. 1. could not have been declared as elected. The Supreme Court, therefore, set aside the election of respondent No. 1. The Supreme Court further held that since the polling officials had themselves violated the provisions of Rule 28, the appellant could not be declared elected as in that event, the result of his election would have been materially affected by the illegality committed by the polling officials and as such ultimately the said election could not have been upheld. The Supreme Court thus quashed the whole election.
22. The next decision on the point has been relied upon by both the sides, but paradoxically enough, it does not advance the cause of any of the parties to any greate extent. In this decision reported in AIR 1975 Supreme Court, 2182 (Ram Autar Singh Bhaduria v. Ram Gopal Singh and Ors., ), the problem was similar to the facts of the present case. The appellant had succeeded in the election to the U.P.Legislative Assembly by a margin of 22 votes only. Respondent No. 1, the nearest rival, had filed the election petition challenging the election of the appellant on several grounds and also seeking for a declaration that he should be declared elected. Among other things it was alleged that 41 ballots in favour of the election petitioner had been illegally rejected by the Presiding Officer on the ground that the electors' choice had been expressed through the instrument meant for the Presiding Officer for stamping on the reverse side of the ballot paper (same as the distinguishing circular seal which has been used in the present case). The particulars of the such ballot papers had been given in Schedule-I of the election petition. Such allegation had been resisted by the successful candidate. Though no evide nce in support of such allegation had been adduced, on the basis of an application for scrutiny and recount of the ballot papers, the High Court had directed for scrutiny and recount of the ballot papers, inter alia, on the following ground,:
"It is also the admitted case of the parties that a number of ballot papers were rejected because the voters cast their votes by putting their mark not with the marking instrument issued by the Election Commission but with the marking or stamping instrument issued by the Election Commission for the use of the Presiding Officers. This happened because instead of the instrument which the polling staff should have given to a voter to put the mark showing for which candidate he wanted to vote, the polling staff by mistake handed over to the voter the stamp meant for the Presiding Officer..........to affix on the back of the ballot paper."
The Supreme Court reversed the aforesaid decision of the High Court and remanded the matter to the High Court for fresh hearing with the following observations:
"30. In the result we allow the appeal and set aside the order of the High Court for general scrutiny and recount of the ballot papers. However, the High Court will have to determine, (after taking such evide nce as may be necessary) inter alia, (i) whether the instrument which was used for marking the 41 votes (referred to in the election petition) was supplied to the voters by the Presiding Officer or any other member of his Polling Staff. If on evide nee adduced, the learned Judge finds this issue in the affirmative, the further question to be considered would be (ii) whether such supply would answer the legal requirement of 'instrument supplied for the purpose' in Rule 56 (2)(b). If both these issues (i) and (ii) are answered in the positive, then and then only he may proceed to inspection and recount of these 41 votes mentioned in the petition........."
After referring to Rule 56 and Rule 38, the Supreme Court had observed in earlier paragraphs as follows:
"21. The object of these rules is to secure not only the secrecy of the ballot but also to eliminate chances of sharp practices in the conduct of elections. Their requirement are therefore mandatory, and a defect arising from their non-observance inexorably entails rejection of the defective ballot paper except to the extent covered by the Provisos to Rule 56 (2).
22. In the case of 41 ballot papers mentioned in para 11 (a), what happened was that instead of marking those ballot papers with the instrument supplied for this purpose by the Election Commission, the electors concerned stamped it with the instrument meant to be used exclusively by the Presiding Officer for stamping the counter-foils and backs of the ballot papers. The Court had to apply its mind as to whether these facts by themselves were sufficient to attract Rule 56 (2)(b) ? This question would further resolve itself into two issues : (1) Was the stamping instrument with which these 41 electors 'marked' the ballot papers, given to them by the Presiding Officer or any member of his staff ? (ii) If so, could these ballot papers be deemed to have been marked with 'the instrument supplied for the purpose' within the contemplation of Rules 38 and 56 (2)(b) ? The first one was an issue of fact, the determination of which would depend on evide-nce. The second issue would arise only on proof of the first, and involve the question of interpreting and applying the phrase 'instrument supplied for the purpose'. This phrase is capable of two interpretations - one narrow and literal, and the other liberal and contextual. Without there being any proof of the fact that the stamping instrument was handed over to the 41 electors by the Presiding Officer/Polling Officer, a final expression of opinion on our part would be academic and premature. It will be sufficient to reiterate that the provisions of Rules 38 and 56 (2) (a) and (b) with which we are concerned in this case are mandatory and strict compliance therewith is essential. Once it is established that the fault specified in Clause (a) or (b) of Rules 56 (2) has been committed, there is no option left with the Returning Officer but to reject the faulty ballot paper. We would further make it clear that even if any such defect as is mentioned in Clause (a) or (b) of Rule 56 is caused by any mistake or failure on the part of the Returning Officer or Polling Officer, the Returning Officer would be bound to reject the ballot paper on the ground of such defect. That such is the imperative of Rule 56 (2) is clear from the fact that the said Clauses (a) and (b) have advisedly been excluded from the first Proviso to Rule 56 (2) which gives a limited discretion in the matter of rejection to the Returning Officer only where the defect is of a kind mentioned in Clauses (g) and (h) of this sub-rule."
Relying upon the aforesaid decision, it is contended by the learned counsel for respondent No. 1 that the decision clearly suggests that if the ballot papers had been stamped by the electors with the instruments supplied by the polling officials, even if it subsequently turned out to be the wrong instrument, the right of the voters should not be defeated and such ballots should be considered as valid votes. On the other hand, the learned counsel for the petitioner has sought support for sustaining his submission from paragraph - 23 of the judgment, wherein the Supreme Court referred to and relied upon the earlier decision reported in AIR 1955 SC 233 and ultimately observed in paragraph - 24 as follows :
"24. The above observations are apposite. Judged by the guiding principle enunciated therein, it can safely be said that the provisions of Rules 56 (2)(a) and (b) read with Rule 38 are mandatory and not merely directory."
The learned counsel for respondent No. 1 submits that if in each and every case the ballots are to be rejected if they were marked by the instrument supplied by the polling officials though not prescribed by the Election Commission in that event there was no necessity to make the observations made in paragraph - 22 of the judgment as well as in paragraph - 30 of the judgment.
23. Unfortunately, the Supreme Court in the decision cited above has not given any answer to the question posed. It is apparent that since the matter was being remanded to the High Court for fresh disposal after taking evide nce, the Supreme Court merely raised the question without answering the same. From the observations made in paragraphs 22 and 30 of the decision, it cannot be laid down as a matter of rule that the ballot papers marked by distinguishing circular seal which had been supplied by the polling officials to the voters should be treated as valid. The question was, of course, left open for the High Court to decide after taking evide nce. However, there is some force in the contention of the learned counsel for the petitioner that this decision has reiterated the principle which had been laid down in the decision reported in AIR 1955 SC 233 and the provisions of Rule 56 (2)(a) and (b) read with Rule 38 were held to be mandatory.
24. Both these decisions were pressed into service subsequently in the decision reported in AIR 1990 Supreme Court, 838 (Era Sezhiyan v. T.R.Balu and others). In the said case, the question of election to Rajya Sabha was in dispute. The appellant had challenged the election of some of the respondents on several grounds. One of the grounds relating to rejection of a ballot paper in favour of the appellant which had been marked by a ball-point pen with green ink, whereas as per the instruction, the ballots were to be marked with ball-point pen having blue ink which had been kept near the ballot box. It had been contended on behalf of the appellant that since the elector had clearly indicated his Choice, the same should not be ignored merely because ball-point pen with green ink had been used instead of the ball-point pen with blue ink. While distinguishing the decision reported in AIR 1975 SC, 2182 on the ground that it related to an election to Legislative Assembly, the Supreme Court observed as follows :
"13. It would not be convenient to deal with the first contention of the learned counsel for the appellant. As we have already pointed out, the said rejected ballot paper was rejected on the ground that it was marked otherwise than with an article supplied for the purpose. As we have already pointed out, the figure 1 indicating the first preference in the said ballot paper was marked in green ink whereas in the ball-point pen kept in the voting booth with the ballot box, the ink used was blue. The returning officer took the view that the said marking of preference in green ink clearly established that it was done with a ball-point pen other than the one which was supplied for marking the preference and hence the vote was invalid. It was urged by Shri Jethmalani in this connection that although the marking of preference was done in green ink, there was no doubt that the intention of the voter concerned was to give the first preference vote to the appellant. It was submitted by him that the fundamental rule of election law is that effect should be given to the intention of the voter and this could be done only by treating the vote as valid, as the intention of the voter was quite clear. Mr. Jethmalani may be right when he contends that the intention of the voter could be clearly gathered and it was to cast the first preference vote for the appellant. However, it is not enough for the vote to be valid that it is possible to gather the intention of the voter to vote for a particular candidate as pointed out by the Constitutson Bench of this Court in the leading case of Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104 at p. 1132 (AIR 1955 SC 233 at p. 248). This Court held that (1132 at SCR (at p. 248 of AIR).
"But when the law prescribes that the intention should be expressed in a particular manner, it can be taken into account only if it is so expressed. An intention not duly expressed is, in a Court of law, in the same position as an intention not expressed at all."
14. In the present case Rule 39 (2) (b) which is applicable to the election petition before us clearly prescribes that the vote must be cast by the voter in accordance with the said Sub-rule (2) of Rule 39 of the Election Rules, with the article supplied for the purpose. Rule 39-A (2)(b) read with Rule 37-A (2)(a) prescribes that an elector in giving his vote shall place on his ballot paper the figure 1 in the space opposite the name of the candidate for whom he wishes to vote in the first instance with the article supplied for the purpose. Hence, unless the ball-point pen kept with the ballot box is not to be regarded as the article supplied for marking the preference, the intention of the elector in the present case cannot be given effect to as it was expressed in a manner inconsistent with the provisions in the rules. Clause (b) of Sub-rule (2) of Rule 56 of the Election Rules provide s inter alia that if a ballot paper contains a mark made on it otherwise than with the instrument supplied for the purpose, the returning officer shall reject the said ballot paper. Rule 73 is included in Part VII of the Election Rules and that part applies to the counting of votes at elections by Assembly members. Clause (e) of Sub-rule (2) of Rule 73 of the Election Rules set out earlier that a ballot paper shall be invalid on which there is any figure marked otherwise than with the article supplied for the purpose. Rule 73 is directly applicable to the case of the election in question and as aforesaid it prescribes that if on the ballot paper there is any figure marked otherwise than with the article supplied for the purpose, the ballot paper shall be invalid. Assuming that the voter in this case had expressed his intention clearly by marking the figure 1 in green ink, he did so in violation of the express provisions of the Rules which have a statutory force and hence no effect can be given to that intention."
The learned counsel for respondent No. 1 sought to distinguish this decision on the ground that since the ink used by the voter was different and as such there was possibility of knowing his identity, the ballot had been rejected. However, the aforesaid submission of the learned counsel for respondent No. 1 is not acceptable, inasmuch as the Supreme Court did not proceed on the footing that the ballot was to be rejected on the ground that the identity of the voter could be known from the different ink used by the voter. On the other hand, it rejected the vote on the ground of contravention of Rule 56 (2Kb) which was held to be mandatory.
It is, of course, true, as pointed out by the learned counsel for respondent No. 1 that the ball-point pen with green ink had not been "supplied for the purpose" by the polling officers and as such the facts are not applicable to the present case where the instrument, albeit the wrong instrument, had been supplied by the polling officials themselves. The learned counsel appearing on behalf of the petitioner has also placed reliance upon the decision reported in AIR 1989 Supreme Court, 2023 (N.E.Horo v. Leander Tiru and Ors.). In paragraph-15 of the said decision, it was observed as follows :
"15. As to the aforesaid ballot papers. Rule 39(2)(b) of the Conduct of Election Rules, 1961 and the Election Commission Instruction to Presiding Officers require that if the mark is made otherwise than by the instrument provide d for the purpose, such ballot papers are to be rejected. There is no dispute that the ballot papers in question contained no prescribed mark, namely 'arrow cross' mark. The report of the Commissioner of this Court also confirms this illegality. They could not, therefore, be retained in favour of the appellant."
However, the aforesaid decision does not lay down in categorical terms that in every case where the ballot paper has not been marked with the instrument prescribed by the Election Commission for use in the election has to be rejected.
25. The question revolves round the interpretation to be given to the expression contained in Rule 39 (2)(b), more specifically the expression "the instrument supplied for the purpose". In the decision reported in AIR 1955 SC 233, though the ballot papers had been admittedly marked with the instrument supplied for the purpose, the ballots were rejected as they contained wrong distinguishing mark on the back of the ballot paper. Though the mistake emanated from the polling officials or the Presiding Officer and not from the voter, yet the ballots were rejected as it was observed that the rules (which were similar to the present rules) were mandatory. In the decision reported in AIR 1975 SC 2182, though the question cropped up directly, the matter was not finally decided by the Supreme Court and was left open to be considered by the High Court. In the decision reported in AIR 1990 SC 838, the question was slightly different, in the sense that the ball-point pen with green ink had evide ntly been used by the voter of his own and had not been supplied for the purpose. Strictly speaking, none of the aforesaid decisions conclusively deal with the question which has cropped up in the present case. However, there are observations in the Constitution Bench decision reported in AIR 1955 SC 233 which point to the conclusion that in such matters, the provisions of the Act and the Rules are to be strictly followed and are mandatory in nature. In the decision reported in AIR 1955 SC 233, evidently and admittedly the mistake was that of the polling officials who had given the wrong identifying mark and neither the voters nor the candidates were to be blamed for the mistake. Yet it was held that the provisions including the instructions regarding the manner of affixing the seal by the Presiding Officer were mandatory and should have been strictly followed. In paragraph-34 of the judgment, it was observed as follows :
"This conclusion is further fortified when the nature of the duties which a Returning Officer has to perform under Rule 47 is examined. Under that Rule, the Returning Officer has to automatically reject certain classes of votes for not being in conformity with the rules. They are set out under Rule 47 (1)(b) and (c). In other cases, the rejection will depend on his decision whether the conditions for their acceptance have been satisfied. Thus in Rule 47 (1)(a) he must decide whether the mark or writing is one from which the elector could be identified; under Rule 47 (1)(d), whether the ballot paper is spurious or mutilated beyond identification; and under Rule 47(2), whether more than one ballot paper has been cast by the voter.
Rule 47(4) is important. It provides that 'the decision of the Returning Officer as to the validity of a ballot paper.... shall be final subject to any decision to the contrary given by a Tribunal on the trial of an election petition calling in question the election.' Under this provision, the Tribunal is constituted a Court of Appeal against the decision of the Returning Officer, and as such its jurisdiction must be co-extensive with that of the Returning Officer and cannot extend further. If the Returning Officer had no power under Rule 47 to accept a vote which had not the distinguishing mark prescribed by Rule 28 on the ground that it was due to the mistake of the Presiding Officer in delivering the wrong ballot paper - it is not contended that he has any such power, and clearly he has not -the Tribunal reviewing this decision under Rule 47(4) can have no such power. It cannot accept a ballot paper which the Returning Officer was bound to reject under Rule 47."
From the aforesaid observation it is clear that so far as the Returning Officer is concerned, he could not have done anything except rejecting the ballots which had been marked by instrument which had not been prescribed for the purpose even though the said instrument had been supplied by the polling officials. Such a conclusion also follows from the fact that at the stage of counting, the Returning Officer may not be in a position to embark upon an enquiry to find out as to whether an unauthorised instrument had been supplied by the concerned authorities or not. If the Returning Officer could not have done so, applying the ratio contained in paragraph-34, it should be held like-wise. The observations made in paragraph-35, to the following effect, also fortify the aforesaid conclusion :-
"35. It is argued with great insistence that as the object of the Election Rules is to discover the intention of the majority of the voters in the choice of a representative, if an elector has shown a clear intention to vote for a particular candidate, that must be taken into account under Section 100(2)(c), even though the vote might be bad for non-compliance with the formalities. But when the law prescribes that the intention should be expressed in a particular manner, it can be taken into account only if it is so expressed. An intention not duly expressed is, in a Court of law, in the same position as an intention not expressed at all."
In view of the aforesaid discussion, I am inclined to take the view that the ballots marked with an instrument not prescribed by the Election Commission cannot be treated as valid votes in spite of the fact that such instrument had been supplied by the polling officials. As such the ballots which had been marked by the voters with distinguishing circular seal were liable to be rejected.
26. In view of the conclusion that the ballots which had been marked by circular distinguishing seal instead of the arrow-cross mark had been rightly rejected, the next question is as to whether there should be inspection and recounting of the ballots in order to find out if any such ballot papers containing distinguishing circular seal mark had escaped detection and had been counted as valid votes.
27. The learned counsel for the petitioner has submitted that keeping in view the small margin of difference in votes between the petitioner and respondent No. 1, a recount of votes should be ordered to maintain purity of the process of election. He has submitted that it is the duty of the Court to ferret out the void votes which had been counted as valid even though the ballots had been marked with unauthorised instrument. Relying upon the decisions of the Supreme Court reported in 1994 AIR SCW, 2198 (A. Neelalohithadasan Nadar v. George Mascrene and Ors.) and (1996) 4 SCC 53 (= 1996 (4) SCALE, 93) (I.Vikheshe Sema v. Hokishe Sema), he has submitted that whenever there is question of purity of election involved, the principle of declining to inspect the ballot boxes on the ground of maintaining secrecy of ballot must recede to the background. He has submitted that the candidate who secure largest number of valid votes is to be declared elected as envisaged under Section 66 of the Act and votes which are not valid as envisaged under Rule 56-B must be taken to be void votes and attempt should be made to find out the void votes in order to maintain purity of the election process.
The learned counsel for respondent No. 1, on the other hand, submitted that every vote which is considered to be invalid under Rule 56-B may not be a void vote and only those votes which come under the purview of mandatory prohibition as contained in Section 62 of the Act are considered to be void votes. He, therefore, contends that the general principle of law as laid down in a series of decisions of the Supreme Court regarding disinclination of a Court to readily order for inspection of ballots and recounting is to be followed in cases where there is no allegation of violation of Section 62 of the Act.
28. The general principle relating to recounting of ballots is no longer in doubt and has been laid down in a series of decisions of the Supreme Court. It is unnecessary to refer to the various decisions, as most of the decisions have been collated in the decision of this Court reported in AIR 1993 Orissa 233, (Smt. Nakka Bhikhyamana v. Sri Aurovindo Dhali and Ors., ). It is now well-settled that ordinarily a Court does not direct for inspection of ballots and recount of votes unless the material facts on the basis of which inspection of documents is sought for are clearly and specifically pleaded and the Court is satisfied on evide nce that it is necessary to allow inspection in the interest of justice. It is further clear that ordinarily a Court should not permit a roving or fishing enquiry unless it is satisfied on the basis of materials on record that a recount is necessary. No doubt, the smallness of margin between the victor and the vanquished is a relevant consideration, but that by itself is not sufficient to order for recount in every case. The two decisions relied upon by the learned counsel for the petitioner do not purport to lay down principle contrary to the aforesaid well-settled principle.
In the decision reported in 1994 AIR SCW, 2198, there was allegation relating to impersonation of voters and provisions of Section 62 of the Act had been apparently violated. In the aforesaid context, in order to maintain purity of election, the following observations were made :
"10. The existence of the principle of 'secrecy of ballot' cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutorily assures a voter that he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips. See in this connection Raghbir Singh Gill v. Gurcharan Singh, (1980) 3 SCR 1302 (AIR 1980 SC 1362). But this right of the voter is not absolute. It must yield to the principle of 'purity of election' in larger public interest. The exercise of extrication of void votes under Section 62(4) of the Act would not in any manner impinge on the secrecy of ballot especially when void votes are those which have to be treated as no votes at all. 'Secrecy of ballot' principle presupposes a validly cast vote, the sanctity and sacrosanct of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the 'secrecy of ballot' as an allied vital principle. It was observed by this Court in Raghbir Singh's case (supra) at page 1320 (of SCR) : (at p. 1372 of AIR) as follows:
'Secrecy of ballot though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to observe the larger public interest, namely, purity of election for ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections, viz., purity of election. They can co-exist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play."
After referring to several decisions of the Supreme Court, it was observed in paragraph-13:
"But by and large these are cases where there was a claim for recount. In contrast the instant case is of double voting which has specifically been pleaded......."
At another place, the Apex Court observed :-
"......... The primary purpose thus was to purify the electoral process and not to hunt or hound the voter's choice, ......."
From the aforesaid observations, it is clear that since the question of violation of Section 62 was involved and consequently, the issue of "purity of election" was at stake, the Supreme Court had given primacy to the question of purity of election rather than secrecy of ballot.
Similarly, in the subsequent decision of the Supreme Court reported in (1996) 4 SCC 53 : the question of violation of Section 62 of the Act loomed large. It was, therefore, observed in paragraph-14 :
"Once, the High Court was convinced, and it was evident from the fact on record that a large number of void votes had been received and they could have affected the outcome of the election, then it was under a duty to have taken the next logical step which would have been to examine the votes which had been cast, exclude the void votes and then re-counted the valid votes in order to come to the conclusion whether the reception of the void votes had materially affected the result of the returned candidate. Without undertaking this exercise the High Court was wrong in coming to the conclusion that the election of the appellant had been materially affected and that the same should be set-aside."
These decisions do not purport to lay down a general principle contrary to the well-accepted principles laid down by the Supreme Court in several decisions which were noticed in the decision reported in 1994 AIR SCW, 2198 as well as the decision reported in AIR 1993 Ori. 223.
29. The submission of the learned counsel for the petitioner that all votes which are not valid must be deemed to be void votes is not acceptable. Generally speaking, votes which have been cast in contravention of the mandatory provisions of Section 62 can be considered to be void votes. By and large such void votes can be identified and located only after considering relevant materials subsequently. At the stage of counting of votes, the Returning Officer may not be in a position to reject a vote on the ground of violation of Section 62 of the Act. Rule 56-B which is applicable under Rule 59-A lays down the procedure to be followed by the Returning Officer at the time of counting. The said rule which is similar to Rule 56 does not envisage a situation contemplated by Section 62 of the Act. Therefore, even if a vote has been considered as valid by the Returning Officer under Rule 56-B(2) [corresponding to Rule 56(2)] the same may subsequently be considered as void vote under Section 62 of the Act. Therefore, the broad submission of the learned counsel for the petitioner that all votes which are not valid must be taken to be void votes, is not acceptable. There is definitely some distinction between vote which is rejected under Section 56B(2) and vote which is liable to be rejected under Section 62 of the Act. Every ballot paper which is not rejected under Rule 56-B is to be counted as a valid vote even though it may subsequently turn out to be a void vote, if there is contravention of Section 62. Apparently, with the above distinction in mind, the Supreme Court in the decisions relied upon by the learned counsel for the petitioner had emphasised regarding the purity of election.
30. The stage is now set to examine the evide nce on record against the above backdrop of the legal principle. On the side of the petitioner, the evide nce of P.Ws. 4, 5, 9, 10, 12 and 13 is being pressed into service. P.W. 4 is the Counting Supervisor in respect of Table No. 11. After describing the procedure of counting, he has stated thus in paragraph-3 :
"The ballot-paper containing the arrow cross seal mark was considered to be valid vote whereas the ballot paper containing the circular seal containing the constituency number was considered to be a doubtful vote and kept apart. Quite a large number of such doubtful votes containing circular seal were found in Table No. 11 but I cannot give the exact number thereof. I cannot say whether any doubtful vote had been counted as valid vote in my table."
In cross-examination he has further stated that :
"The doubtful votes including those containing the circular seal were sent to the Central Table. I have not taken any decision relating to any doubtful ballot paper nor I have counted any doubtful ballot paper in favour of any particular candidate."
Such evidence of P.W. 4 does not advance the contention of the petitioner on this point in any manner. On the other hand, from such evide nce it is clear that the ballots containing circular distinguishing seal mark at the place meant for indicating the choice of the voter were being treated as doubtful votes and such evidence does not support the contention of the petitioner that before actual discovery of such ballots in the third round, many other ballots containing circular distinguishing seal mark had escaped detection.
P.W. 5 is the Returning Officer. He does not have direct knowledge as to when such doubtful votes containing distinguishing circular seal mark were detected. P.W. 9 is the counting agent of the petitioner in respect of Table No. 8. He has stated in his examination-in-chief as follows :
"......While the third round of counting was going on we found many of the ballot papers had contained some black round seal.......Subsequently, instruction was received that those ballot papers should be considered as doubtful ballots and should be sent to Central Table. Some of those doubtful ballots were also meant for petitioner but majority was in favour of respondent No. 1."
In cross-examination, he has stated, :
"......... In the first round of counting, there were also some ballot papers containing circular seal, but those had not been considered as doubtful ballots. Only in the third and fourth rounds of counting, the ballots were considered as doubtful ballots. I had not disclosed before the petitioner about the aforesaid fact relating to the first round of counting. I had not complained that in the first round counting some doubtful ballot papers containing circular seal have been counted as valid votes. Again says, I had disclosed about this fact to Sudarsan Routray."
Sudarsan Routray has been examined as P.W. 11. Though he states in his examination-in-chief that the counting agent of the petitioner in respect of Table No. 8 complained before him that many ballot papers containing "Hand" symbol had been wrongly included in the bundle meant for respondent No. 1, but he does not say anything about P.W. 8's so-called disclosure regarding discovery of ballots containing distinguishing circular seal mark in the first round of counting, as has been claimed by P.W. 9. The evide nce of P.W. 9 to the effect that doubtful ballots containing circular seal mark were discovered in the first round of counting but not treated as doubtful ballots, is not in consonance with the specific pleading, nor is it corroborated by any other acceptable evide nce. P.W. 10 is the counting agent of the petitioner in respect of Table No. 11. He has stated in his examination-in-chief as follows :
"In the second round of counting I found that some of the ballot papers had contained circular seal (distinguishing mark). I asked Mr. Mishra Babu and Tripathy Babu and other agent whose name I do not remember that some of the ballot papers were marked with distinguishing seal. The officials replied that possibly the seal containing cross arrow mark might have been broken and this seal might have been used. The ballot papers containing distinguishing seal were counted as valid votes. In the third round of counting I find that from out of about 100 or so, such ballot papers containing distinguishing seal, about 75 to 80 ballot papers were in favour of Respondent No. 1. In the third round of counting I told the officials in charge of counting in the table that the ballot papers containing distinguishing seal should not be counted as valid votes. The other four counting agents objected to such request of mine. Then on my objection the counting was postponed and I along with another official went to the Central Table and brought this matter to the notice of Sudarsan Routray, the agent of the petitioner at the Central Table. On protest, the Tahasildar present at the Central Table directed that such ballot papers should be considered as doubtful ballots and sent to the Central Table for scrutiny. One Sri S.K.Ray was the Tahasildar in charge of the Central Table. All those ballot papers which had already been counted in the third round were not re-checked, but subsequent ballot papers which contained the distinguishing seal mark were kept separately as doubtful ballots."
In cross-examination he has stated :
"I cannot say the number of ballot papers containing distinguishing seal mark in the second round of counting. But as far as I remember the majority of those ballot papers had been counted.....I intimated about such fact to Sudarsan Routray who discussed this matter with the Tahasildar in my presence. I had also told Sudarsan Babu regarding counting of such doubtful ballot papers as valid papers in the second round containing distinguishing circular seal. Such fact was also brought to the notice of Tahasildar who said that he will look into matter at the end. I enquired about the matter from Sudarsan Babu who replied that he has already discussed about the same with the election agent and he further said that I need not bother about the matter. I have not given anything in writing about such matter."
In paragraph-6 of his cross-examination he has further stated :-
".......All the doubtful ballots containing distinguishing circular seal which could be discovered by me were sent to the Central Table for re-checking. I have not stated to anybody that if the ballots in the third round of counting will be re-checked. Many more such ballot papers containing distinguishing circular seal are likely to be discovered from the bundles containing valid votes.
He has further stated :
"........After the dispute relating to ballot papers containing circular distinguishing seal was started, the counting official and myself took the disputed ballots to the Central Table to show the ballot papers to the Tahasildar."
The aforesaid Sudarsan Routray, who has been examined as P.W. 11 has stated that the Supervisor, the counting agent of the petitioner in respect of Table No. 11 (evide ntly, P.W. 10) and some other agent had come to the Central Table and showed some ballot papers which had contained distinguishing circular seal mark and the Assistant Returning Officer told that all such ballot papers containing distinguishing circular seal should be kept as doubtful ballot papers. He, however,does not specifically corroborate the version of P.W. 10 that the ballots containing such distinguishing circular seal mark were treated as valid votes and such illegality had been brought to the notice of P.W. 11. P.W. 12, the election agent of the petitioner, claims that he had suggested that the ballot papers in the earlier two and half rounds of counting should be rescrutinised. But such suggestion was not accepted. However, in his application (Ext. 4), there is nothing to indicate that, in fact, he had made such suggestion. Significantly enough, the counting assistant in respect of Table No. 11, who has been examined as P.W. 3 on behalf of the petitioner, has not stated anything as to when for the first time the ballots containing circular distinguishing seal mark instead of cross arrow mark were discovered. On the other hand, he has stated in para-2 of his examination-in-chief :
"No specific objection had been raised by the agents of the petitioner as far as I remember."
The petitioner himself has been examined as P.W. 13. But admittedly he had no direct knowledge and as such his evide nee is of no consequence on this aspect.
On an analysis of the aforesaid evide nce adduced on the side of the petitioner, it is found that there is no consistent evide nce on record to indicate that in fact, many ballots containing distinguishing circular seal mark were counted as valid votes prior to their discovery. There is no acceptable evide nce regarding the number of such votes allegedly considered as valid votes prior to third round of counting.
31. The leaned counsel for the petitioner has however, contended that the Election Agent of respondent No. 1 had himself filed a petition before the Returning Officer indicating that more than 1200 ballot papers in booth Nos. 112 and 113 had contained the distinguishing circular seal mark instead of arrow-cross mark and the majority of those ballots were in favour of respondent No. 1. It is, therefore, contended that at least more than 600 ballots which had contained the distinguishing circular seal mark had been counted in favour of respondent No. 1 which should have been rejected.
The learned counsel for respondent No. 1 has assailed the factual basis of such submission and submitted that there seems to be some over-writing in the petition which had been filed on behalf of respondent No. 1. He has submitted that admittedly less than 1000 votes had been polled in booth Nos. 112 and 113 together and as such, the figure "1200" could not have been indicated in the petition. The question whether the figure "1200" was originally there or not recedes into background in view of the fact that the petition filed on behalf of respondent No. 1 indicated that those ballots containing the distinguishing circular seal were considered to be invalid. The substance of the petition of the Election Agent of respondent No. 1 was for counting such ballots which evide ntly indicates that the ballots were considered to be invalid. The core question is as to whether apart from the ballots which were rejected as invalid on the ground that the distinguishing circular seal mark had been given instead of the arrow-cross mark, there were other such ballots which had been counted as valid votes ? It is for the petitioner to make out a clear case on this. In the absence of sufficient materials on record, it is difficult to sustain the contention of the petitioner that may more ballots which had been marked with distinguishing circular seal had been counted as valid votes. The materials on record do not establish that, in fact, many ballots ma1rked by the distinguishing circular seal had been counted as valid votes prior to their discovery and rejection in the third round of counting. This Issue is accordingly answered.
32. Issues Nos. 4. 5 and 7 :
These Issues being somewhat inter-related are taken up together for convenience. The petitioner has alleged that the two rooms where counting was being taken up were congested due to placing of 15 counting tables and due to presence of numerous counting officials and counting agents of various candidates. It is further alleged that no barricades had been provide d as a result of which the counting agents, specially those of respondent No. 1, had unhindered access to the ballot papers.
Though the exact sizes of the two rooms have not been proved, from the materials on record it is apparent that, in fact, the two rooms had been congested evide ntly due to presence of counting officials and counting agents. It is admitted that barricades had not been provide d. However, the assertion of the petitioner that the counting agents specially those of respondent No. 1 were allowed to handle the ballot papers has remained a mere allegation without any concrete material in support of such allegation. The evide nce on this score is meagre and vague. Merely because the two rooms were congested and barricades had not been provide d, it cannot be assumed that the process of counting had been disrupted or hampered in any manner.
33. It has been specifically alleged that in Table No. 8, there had been irregular counting and many ballots belonging to the petitioner had been kept inside the bundle of respondent No. 1 during the second phase of counting, that is to say, while the actual counting candidate-wise was going on. P.W. 9 is the counting agent of the petitioner in respect of Table No. 8, whereas R.W. 1 is the Counting Agent and R.W. 6 is the Counting Supervisor of Respondent No. 1 in respect of the said Table.
According to the evide nce of P.W. 9 after about two to three rounds of counting in Table No. 8, the Counting Supervisor inserted a few number of ballot papers meant for petitioner in the bundles of respondent No. 1 and he did not pay any heed to the protest of the counting agent. In cross-examination, he stated that the Counting Supervisor after taking out ballot paper from the heap of ballots meant for petitioner tied the balance papers into one bundle. Similarly, he kept those ballot papers inside the bundle of respondent No. 1. He claims that such irregularity was brought to the notice of the Election Agent of the petitioner at the Central Table.
The Counting Supervisor in respect of Table No. 8, who has been examined as R.W. 6 has stated that in the third round of counting, the Slip of Janata Dal candidate had been affixed on the bundle of ballots actually meant for Congress candidate and similarly on the bundle relating to the Janata Dal candidate, the Slip of Congress candidate had been affixed indicating the number of votes in respect of either candidate in that particular round of counting. He has further stated that the mistake was discovered in the Central Table and the ballots were sent back for re-checking. After re-checking, it was found that there was no mistake in the actual counting, but the Slips had been affixed wrongly by mistake which was duly rectified. In cross-examination, he has stated :
"........ After re-checking the bundles, I inter-changed the slips which had been earlier affixed by mistake. I rechecked the ballot papers contained in each of the bundles........."
He denied the suggestion that he had not re-checked the ballot papers in the bundles and had simply re-affixed the Slips without personal verification.
The Counting Agent of respondent No. 1 in respect of Table No. 8 has been examined as R.W. 1. He has stated in examination-in-chief that in the candidate-wise bundles, the Slip meant for Congress had been wrongly affixed on the bundle meant for Janata Dal and vice versa and the said mistakes were rectified after the mistakes were discovered. Of course, in cross-examination he has stated that the Counting Supervisor had not personally re-examined the ballot papers and had inter-changed the Slips on the two respective bundles after verifying the Check-memo. He has categorically stated that in the Check-memo, the numbers had been correctly indicated, but the only mistake was in respect of the two slips.
In the face of the categorical evide nce of the Counting Supervisor (R.W. 6), it is difficult to accept the uncorroborated evide nce of P.W. 9 that, in fact, many ballots meant for petitioner had been deliberately, or even by mistake kept in the bundle meant for respondent No. 1. The explanation of R.W. 6 that the Slips had been affixed wrongly on the respective bundles appears to be true and the contention of the petitioner is untenable.
34. The petitioner has alleged that the officials in charge of counting had not followed the rules and instructions relating to the method of counting. It has been specifically brought out from the mouth of the official witnesses that there was no check-test of valid votes in accordance with Clauses (n) and (o) of para-24 of Chapter - XIVB of the Handbook. The Assistant Returning Officer has admitted in his evide nee that the check-test as envisaged under Clauses (n) and (o) had not been undertaken. It is, no doubt, true that the instructions issued by the Election Commission as contained in the Handbook are meant to be followed by the counting officials at the time of counting to minimize the possibility of any mistake and the omission on the part of the Assistant Returning Officer in following Clauses (n) and (o) of Para-24 of Chapter -XIVB of the said Handbook was definitely an irregularity. The question is whether such irregularity in counting has materially affected the result of the election so far as it relates to the returned candidate ? In the absence of any positive material to indicate that the non-compliance of Clauses (n) and (o) of Paragraph - 24 of Chapter - XIVB of the Handbook has, in fact, vitiated the counting process and has materially affected the ultimate result, it is difficult to uphold the contention of the petitioner that the result of the election so far as it relates to the returned candidate has been, in fact, materially affected. This is not to suggest for the purpose of counting are to be ignored. The persons in charge of counting should try to avoid the possibility of error by following the instructions. However, in the facts of the present case, and in the absence of any specific evidence on this score, I am unable to conclude that the result of the election so far as it relates to the returned candidate has been materially affected.
The Issues are accordingly answered against the petitioner.
35. Issues No. 2 :
The election petition has been filed without the stipulated period and as such it cannot be said that the election petition is barred by limitation. This Issue is accordingly answered in favour of the petitioner and against respondent No. 1.
36. Issue No. 8 :
In view of the discussions in the foregoing paragraphs, the election petition is hereby dismissed. Respondent No. 1 alone is entitled to cost actually incurred by him towards the expenses of the witnesses examined on his behalf. Since there is no proof of payment of any fee to counsel for respondent No. 1, only a token hearing fee of Rs. 1/- is assessed.
37. Before parting with the case, I feel it appropriate to indicate a few words regarding the delay in disposal of election cases. Section 86(7) of the Act lays down that every election petition shall be tried as expeditiously as possible and endeavour should be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial. In view of the fact that the High Court functioned almost at half strength for a pretty long period, it would be futile to expect that election cases can be finalised within the time-frame envisaged in Section 86(7) of the Act. The registry, of course, has not helped the cause of expeditious disposal by listing the election petition at the fag end of the day at 3.30 P.M. on several occasions even though Section 86(6) envisages that the trial of an election petition should so far as practicable consistently with the interest of justice in respect of the trial, be continued from day to day. Even when the case was listed from day-to-day, the List had been inevitably cluttered with other miscellaneous matters effectively restricting the time available for trial of the election case. Keeping in view the various practical difficulties, the delay in disposal of cases including the election petitions has become inevitable.