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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.

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.