1994 INSC 1068
                                               M. R. Gopalakrishnan

                                                           Vs

                                        Thachady Prabhakaran and Others

                                          Civil Appeal No. 3755 of 1992

                                        (Dr. A. S. Anand, Faizanuddin JJ)

                                                      13.12.1994

                                                     JUDGMENT

FAIZAN UDDIN, J.

1. This appeal under Section 116-A of the Representation of the People Act, 1951 (hereinafter
referred to as the Act) has been directed against the judgment of the High Court of Kerala
dismissing the election petition of the appellant whereby he had challenged the election of
Respondent 1 as a member of Kerala Legislative Assembly from Constituency No. 104
Kayamkulam, and for a further declaration that the appellant was duly elected for the said seat for
which the election was held on 12-6-1991 and the result of which was declared on 16-6-1991.

2. In all there were eight candidates in the field i.e. the appellant and Respondents 1 to 7 who
contested the said election for the Legislative Assembly seat from 104 Kayamkulam Constituency.
The appellant was a candidate fielded by the Communist Party of India (Marxist). Respondent 1
herein was the candidate sponsored by the Indian National Congress which was a constituent party
of the United Democratic Front. The total number of votes polled in the said election were 97,969
out of which 1375 were rejected as invalid votes and 96,594 votes were received as valid votes. At
the end of the final counting which took place on 16-6-1991 the result was declared and Respondent
1 was returned as a successful candidate by a margin of 33 votes against his nearest rival, the
petitioner/appellant herein. The main contest was between the appellant and Respondent 1. The
appellant had polled 46,649 votes while Respondent 1 had polled 46,682 votes and thus Respondent
1 had won the election by a margin of 33 votes over his nearest rival, the petitioner/appellant herein
and, therefore, he was declared elected.

3. The appellant challenged the election of the returned candidate Respondent 1 herein by filing an
election petition under the relevant provisions of the Act, in the High Court of Kerala on several
grounds. It was alleged by the appellant that the counting of votes for the Legislative Assembly
Constituency as well as counting of votes for the Kayamkulam Segment of Mavelikara
Parliamentary Constituency both took place simultaneously in the same hall which was of the size
of 80 x 20 feet and as there were several tables and chairs in the said counting hall and the counting
agents of all the candidates and other officials were present in the hall, it became crowdy and the
sorting out of bundles of ballot papers was done hastily and, therefore, it was not possible for the
counting agents of the petitioner/appellant to carefully keep a track of the process of sorting out. It
was, therefore alleged that a reasonable opportunity was not given to the appellant's agents to note
and satisfy themselves that the bundles were really of the candidates for whom the votes were cast
or the correctness of the ballot papers in each bundle. It was alleged that the Returning Officer
rejected the votes as invalid in spite of the protest by the petitioner/appellant's election agent. The
petitioner/appellant's election agent made an application for re-count alleging specific irregularities
in the counting but the same was unreasonably rejected by the Returning Officer and Respondent 1
was declared elected. It has been further alleged that on 17-6-1991 the petitioner/appellant
submitted an application to the District Collector, Alapuzha for re-counting and the election agent of
the petitioner/appellant had also sent an application to the Chief Election Officer pointing out the
irregularities in the counting. The petitioner/appellant further alleged that several postal ballots were
rejected without valid reason and the votes cast in favour of the appellant were treated as invalid and
in many polling stations the figure in the ballot paper account did not tally.

4. The petitioner/appellant further made allegations that several persons had cast their votes by
committing acts of impersonation, in place of the real and genuine voters. The appellant also alleged
that 32 voters had cast their votes twice in the same constituency as their names were entered in the
electoral roll in more than one place and that 18 persons had voted in more than one constituency
the details of which were given in Annexures IV and V annexed with the election petition. It was
therefore alleged that the result of the election had been materially affected insofar as the returned
candidate is concerned.

5. The petitioner/appellant also made allegations against Respondent 1 for committing corrupt
practices in the said election by publishing news item in the Malayala Manorama Daily dated 18-8-
1991 with a view to create an impression in the mind of the voters of the Constituency that the
petitioner/appellant was indulging in undesirable activities to secure the release of convicts who
were undergoing life imprisonment for the purpose of making use of their services in the election.
The appellant also alleged that with a view to prejudice the election prospects of the appellant a
pamphlet was published and circulated in the Constituency which contained false statement to the
knowledge of Respondent 1 and his election agent. The petitioner/appellant alleged that a news item
was published on 7-6-1991 in Malayala Manorama Daily followed by an election pamphlet which
was widely circulated in the Kayamkulam Assembly Constituency the contents of which were false
and designed to prejudice the minds of Muslim voters in the Constituency as there were a number of
Muslim voters in Ward Nos. 7, 9 and 10. The petitioner/appellant alleged that due to the distribution
of said pamphlet he los large number of votes. The appellant also alleged that another pamphlet was
also published after the death of Shri Rajiv Gandhi mentioning that the workers of the appellant had
destroyed the photos of Shri Rajiv Gandhi and burnt the Bhagwad Gita, the Holy Quran and the
Holy Bible. The petitioner/appellant alleged that this pamphlet was published after 23-5-1991 and
prior to 12-6-1991 with the consent and knowledge of Respondent 1 with a view to prejudice the
minds of the voters of the Constituency against the petitioner/appellant.

6. The petitioner/appellant further alleged in the election petition that out of the total number of
1280 postal ballots, 246 postal ballots were rejected by violating Rule 27(1) and Rule 54-A of the
Conduct of Election Rules. The petitioner/appellant alleged that his election agent requested the
Returning Officer to count all the postal ballots but the Returning Officer illegally rejected 246
postal ballots and the request for re-count of those 246 ballot papers was also rejected without
assigning any reason for such rejection. On these grounds the appellant prayed for declaration of the
election of Respondent 1 as void and to declare the petitioner as duly elected candidate for the said
Constituency.

7. The returned candidate Respondent 1 contested the election petition filed against him by
controverting all the adverse allegations. Respondent 1 pleaded that the Returning Officer had
afforded adequate opportunity to the election agents and counting agents of the candidates to
carefully watch the sorting out of the ballot papers and the Chief Election Agent of the
petitioner/appellant was present throughout the process of counting. But as there were no
irregularities nobody raised any objection regarding the sorting out or counting of votes.
Respondent 1 pleaded that on the demand of the election agent of the appellant a second round of
counting of votes of certain polling stations was done but no fault was noticed. He was pleaded that
246 postal ballots were rejected for valid reasons and no illegality was committed by the Returning
Officer in the matter of dealing with postal ballots. Respondent 1 further pleaded that no person had
cast any vote by committing acts of impersonation as alleged by the appellant in his election
petition. Respondent 1 emphatically denied that Annexures VII and VIII were published by him or
by anyone either with his consent and knowledge or that of his election agent. He asserted that his
election agents were in no way concerned or associated with the alleged publication of Annexures
VII and VIII. He also refuted the allegation of publication of Annexures IX and X either with his
consent or knowledge or that of his election agent.

8. Respondent 1 while refuting the allegations made against him and his election agent filed a
recrimination petition under Section 97 of the Act alleging that the petitioner/appellant himself was
guilty of committing corrupt practice as defined in Section 123 of the Act. He alleged that one M.
R. Rajasekharan was the election agent of the petitioner/appellant who was also the Secretary of the
Election Committee and it was he who printed and published a notice under the caption (English
version) "Elect the candidate of Left Front" the copies of which were distributed in various parts of
the Constituency on 10-5-1991. He further alleged that another notice was published on 7-6-1991 by
the election agent of the appellant under the caption (English version) "Let the devotees of Shri
Narayana think". The said two notices were filed by Respondent 1 as Annexures 'A' and 'B' along
with the recrimination petition. Annexure 'A' contained an appeal to the Muslim community to vote
for LDF candidate and Annexure 'B' contained an appeal to voters belonging to Ezhuva community
which according to Respondent 1 amounted to corrupt practice as defined under Section 100 read
with sub-section (3) of Section 123 of the Act. Respondent 1 further made allegations of double-
voting by some voters while names of some voters appeared in neighbouring constituency as well.
On these allegations in the recrimination petition Respondent 1 submitted that even if the appellant
had been declared elected his election would have been void on the aforesaid grounds.

9. The High Court framed necessary issues on the aforesaid pleadings and after the evaluation of the
evidence adduced by the parties and taking into account the material on record held that there was
no irregularity in the counting of votes which may have materially affected the result of the election;
that the rejection of the postal ballot papers was for valid reasons; that it is clear from the evidence
that as and when the petitioner's agent raised any objection regarding the counting there was
checking and rechecking and according to the evidence of Returning Officer, PW 16 at least 40 per
cent of the ballot papers were subjected to test-checking but no difference was found in such test-
checking and, therefore, in the absence of any specific irregularity pointed out by the
petitioner/appellant's agent regarding the counting, PW 16 was justified in rejecting the request for
re-count and as such no case was made out for directing re-count; that the petitioner/appellant had
failed to establish with the pamphlets Ext. P-158 and Ext. P-159 were printed and published with the
consent and knowledge of Respondent 1 and that the alleged publication do not fall within the
purview of corrupt practice as envisaged under sub-section (4) of Section 123 of the Act; that the
petitioner/appellant had failed to prove that Annexures VIII, IX and X i.e. Ext. P-161, Ext. P-162
and Ext. P-157 were printed, published and circulated by Respondent 1 or his election agent or by
any other person with their consent and knowledge; that the petitioner also failed to prove that four
persons had cast votes by impersonation as alleged in para 4 of the election petition. However, the
High Court on issue No. 8 with regard to the petitioner/appellant's allegation of double-voting by 32
voters recorded the finding that Seethabhai Sanjivan, PW 2 had cast two votes in respect of electoral
roll No. 051419, Ext. P-7 and No. 048734 Ext. P-9 and, therefore, both were declared as void. The
High Court also recorded the finding that voter No. 375 and voter No. 1271 in the electoral roll
relate to the same person Achuthan Sukumaran, PW 3 and Achuthan had cast his vote in
Kayamkulam Constituency against voter No. 1271 in Ext. P-5 and that someone else had cast his
vote against voter No. 375 in Ext. P-8 which the High Court declared to be void. Similarly the High
Court further recorded the finding that Pulikkandathil Sujatha Achuthan, voter No. 376 in Ext. P-8
is the same whose name appears in the polling station No. 43 as well as polling station No. 45 and,
therefore, one vote has been declared as void. The High Court also held that voter No. 1221 in Ext.
P-15 and voter No. 143 in Ext. P-16 is one and the same person Sagar Yunus Kunju, PW 5 and that
someone had cast the vote on behalf of PW 5 against voter No. 143 in Ext. P-16 and, therefore, one
vote against P-16 has also been declared void. The High Court also held that Madhavan
Neelakanthan, PW 11 had cast two votes in the same constituency (Ext. P-43 and Ext. P-44) and,
therefore, both have been declared void. The High Court also declared one vote of PW 12 to be
void. It was also found that the name of Kunjumuthu @ Kunju, PW 13 and Anjali Siril Kunju
Muthu @ Muthu is one and the same person whose name appeared in polling station No. 7 as well
as in polling station No. 35, who had cast vote at both the places and, therefore, both the votes are
declared void. The High Court also found that one vote of PW 27 cast against counterfoil No.
001475 (Ext. P-89) was liable to be declared void. Similarly it was found that Madhuradha
Krishnan, PW 29 had cast his vote twice and, therefore, both the votes against counterfoil No.
041933 (Ext. P-97) and counterfoil No. 090465 (Ext. P-98) were also declared void. One vote of
Radhakrishnan Kunju, PW 30 was also declared as void as his name appeared in two polling
stations and he had cast his vote only in one polling station while someone else had cast the vote at
the other polling station by impersonation. Similarly one vote of Suresh Kumar Dassppan Pillay,
PW 31 was also declared void for the same reasons. The High Court also found that Abdul Rasheed
Ayyar Kunju, PW 32 had cast his vote twice in the same constituency and, therefore, both the votes
are declared void. Thus under issue No. 8 the High Court found in all 20 votes to be void. The High
Court therefore, took the view that since the improper reception of 20 votes did not materially affect
the result of election of the returned candidate as it only reduced the margin from 33 to 13 by reason
of which the election of the returned candidate Respondent 1 herein cannot be declared to be void.
Consequently, the question of declaration of the petitioner as the returned candidate did not arise.
Since the High Court found that even after giving a discount of 20 improperly received votes, the
election of Respondent 1 could not be cancelled or declared void and, therefore, it dismissed the
election petition. The High Court did not consider it necessary to go into allegations and grounds
raised by Respondent 1 against the petitioner/appellant in his recrimination application filed under
Section 97 of the Act and the evidence adduced in support of the same.

10. Though Shri P. S. Poti, learned Senior Counsel appearing for the petitioner/appellant assailed all
the findings recorded by the High Court in dismissing the election petition but his main attack was
that :

                  (i) The counting was not conducted legally and properly and in a congenial
                  atmosphere by reason of which the Returning Officer ought not to have rejected the
                  application for re-count and that in any case the prayer made to that effect in the
                  election petition should not have been rejected by the High Court in view of the facts
                  and circumstances mentioned in paras 4 and 7 of the election petition.

                  (ii) Out of the total number of 1280 postal ballots, the Returning Officer rejected 246
                  ballot papers and, out of these 246, 24 postal ballots in Ext. P-54 series only were
                  rejected giving reasons in accordance with Rule 54(A)(4) of the Conduct of Election
                  Rules, 1961 while 222 ballot papers of Ext. P-55 series were rejected without any
                  endorsement for such rejection which is clearly repugnant to the mandatory
                  provisions contained in Rule 54(A)(4) and, therefore, this reason alone was sufficient
                  to hold that the result of the election was materially affected as according to the
                  appellant there were valid postal ballots in favour of the appellant amongst those
                  which were improperly rejected and;

                  (iii) That invalid votes were counted in favour of the returned candidate Respondent
                  1 and out of the total rejected votes of 1375 quite a large number of valid votes in
                  favour of the appellant were rejected which materially affected result of the election.

11. In order to appreciate the first contention advanced by the learned counsel for the appellant and
referred to above it has to be seen whether the appellant has pleaded material facts and laid adequate
foundation for a direction for inspection and re-count. In this regard learned counsel for the
appellant submitted that the pleadings with regard to the material facts for a direction for re-count
are contained in paras 4 and 7 of the election petition. Briefly stated the allegations made in para 4
of the election petition are that the counting of 104, Kayamkulam Assembly Constituency as well as
the counting a Parliamentary election was simultaneously done in a hall which had a length of 80
feet and width of 20 feet which was insufficient to properly accommodate the stage (sic platform) of
the Returning Officer and the assistants as well as the counting staff, candidates and their counting
agents by reason of which various irregularities were either consciously committed by the counting
staff or occurred on account of the hurried sorting out and putting the ballot papers into different
compartments of the candidates or the compartments meant for the doubtful votes while bundling
up the ballot papers of respective candidates into bundles of 50 each. It is stated that it was difficult
for the agents of the petitioners/appellant to carefully keep track of the sorting out or identifying the
voter's mark on the ballot papers before they were put into different compartments. It has been
further alleged that a partisan attitude of the counting officers and supervisors was visible. The
counting agents of the petitioner raised objection on several occasions and Shri M. R. Rajasekharan,
election agent of the petitioner/appellant mentioned these facts to the Returning Officer who told
him that it was up to the counting agents to watch the process and the whole counting is to be done
without delay as the result has to be declared as early as possible. It is further alleged in the same
para 4 of the petition that as the petitioner was aware of several specific irregularities at the counting
and the fact that the Returning Officer himself had rejected several votes as invalid overruling the
protest of the petitioner's election agent that they were the votes polled by the petitioner, so the
petitioner's election agent made an application for re-count of the votes but the Returning Officer
rejected the application without any justification and unilaterally declared the first respondent as
elected by a margin of 33 votes despite vehement protest of the petitioner's election agent. His
pleadings contained in para 7 of the election petition relate to the allegation about casting of several
votes by impersonation giving the names of four persons who were alleged to have voted for the
persons whose names appeared in the electoral roll in polling booth Nos. 15, 30 and 3. According to
the learned counsel for the appellant these facts in addition to the fact that 222 postal ballots were
rejected contrary to the mandatory rule constituted material facts for direction for inspection and re-
count of all the ballot papers. But on a careful and critical examination of the facts and the evidence
on record we find that they speak contrary to the allegations referred to above in the petition which
shall be discussed in the paras hereinafter.

12. We shall first discuss the evidence relating to the alleged irregularities said to have been
committed during the counting. Shri M. Siraj Kunju, PW 16, District Planning Officer was the
Returning Officer of 104, Kayamkulam Assembly Constituency for the general election held on 12-
6-1991. He deposed that the Chief Election Agents of various candidates were witting near him
(Returning Officer). There were two independent observers deputed by the Election Commission
who visited the counting hall. He also stated that the election agent of the petitioners/appellant
wanted re-counting of the entire ballot papers but as he had not specifically requested in respect of
rejection of any ballot paper in particular polling station he did not allow the application for re-
count. But on demand by the Chief Election Agent of the petitioner the entire ballot papers of
polling booth Nos. 96 to 111 were counted twice. He also stated that he himself had supervised the
second counting in respect of some of the tables and his Assistant Returning Officers supervised in
respect of other tables. He further deposed that before a final decision was taken in the application
for counting, he consulted the officials who were in charge of the preparation of the final sheets
whether there was any mistake and he himself checked the result sheets. He stated that during the
time of counting the actual number of votes secured by each candidate was shown on the Display
Board and this was being done till the counting was over but nobody raised any objection. A perusal
of the evidence of the Returning Officer, PW 16 will go to show that no question in cross-
examination on behalf of the appellant was directed against the alleged uncongenial atmosphere in
the counting hall or any difficulty in the sorting out or putting the ballot papers in different
compartments or in the bundles of different candidates. No question was also directed that the
agents felt any difficulty in carefully keeping the track on the sorting out or identifying process or
regarding the indifferent attitude of the counting staff. No question was also put to the Returning
Officer that proper opportunity to the appellant's agents was not afforded with regard to the
verification of marks made by the voters on the ballot papers.

13. It is no doubt true that M. R. Rajasekharan, PW 98, election agent of the petitioner/appellant
made an application on 16-6-1991 purporting to have been made at 10.35 p.m. to the Returning
Officer for re-count. The said application which is Ext. P-207 reads as under :

                  # Ext. P-207From, M. R. Rajasekharan, Election Agent of Shri M. R.
                  Gopalakrishnan, 104, Kayamkulam Assembly Constituency.To, The Returning
                  Officer, 104, Kayamkulam Assembly Constituency.Respected Sir,It is understood by
                  me that there are irregularities in thecounting of votes, which began from 8.15, today
                  morning, in manypolling stations of 104, Kayamkulam Assembly Constituency and
                  also Ihave doubt about the counting of postal ballots and also votes are nottallying
                  with the records.In addition to this that many number of votes have
                  beenunauthorisedly and illegally declared invalid and so that entirevotes of this
                  station may be subjected to re-count, otherwise it willcause irreparable loss to me and
                  to my candidate.Hence it is requested that the result of this station may beannounced
                  only after the re-count is conducted. Yours faithfully,

                  Sd/-10.35 p.m. M. R. RajasekharanHaripad,16-6-1991.##

A plain reading of this application will go to show that it is written in most vague terms without
specifying any irregularities whatsoever which according to the petitioner/appellant were committed
during the course of counting.

14. The appellant M. R. Gopalakrishnan who appeared as PW 100 himself made an application Ext.
P-211 on 19-6-1991 three days after the declaration of result to the Chief Electoral Officer,
Trivandrum for re-count which is reproduced hereunder :

                  # EXT. P-211From, M. R. Gopalakrishnan, Candidate, 104, Kayamkulam Assembly
                  Constituency, Kayamkulam.To, The Chief Electoral Officer, 1991 Assembly
                  Elections, Trivandrum.Sub : Rejection of application for re-counting and re-
                  verification of postal ballot papers. Request for re-counting and re-verification.Sir,I
                  was a candidate for the Assembly Election in 104 KayamkulamConstituency. My
                  opposite candidate Shri Thachady Prabhakaran wasdeclared for 33 votes by the
                  Returning Officer.Knowing that there were irregularities and illegality in the matterof
                  counting, my chief agent has placed an application for re-counting.The Returning
                  Officer has declared hundreds of invalid votes asvalid in favour of Shri Thachady
                  Prabhakaran. My valid votes havebeen declared as invalid.About 300 postal ballot
                  papers have been declared by the ReturningOfficer as invalid votes.For the reasons
                  stated above, I request you to be good enough totake urgent steps to re-count the
                  ballots as soon as possible. Yours faithfully, Sd/- (M. R.
                  Gopalakrishnan)Kayamkulam,19-6-1991 Copy to : Chief Election Commission, New
                  Delhi.##

A cursory look at this application will go to show that no specific allegation with regard to any
particular irregularity in the counting was made but vague application for re-counting was
submitted. Not only this but M. R. Rajasekharan, PW 98 the election agent of the appellant again
made an application on 21-6-1991 to the Chief Electoral Officer, Thiruvanthapuram requesting for
re-count of the votes of 104, Kayamkulam Assembly Constituency. The said application Ext. P-208
is reproduced herein below.

                  #From, M. R. Rajasekharan, Election Agent of M. R. Gopalakrishnan,
                  Kayamkulam.To, The Chief Electoral Officer State of Kerala,
                  Thiruvananthapuram.Sub : Assembly Election - Counting of votes of 104,
                  Kayamkulam Assembly Constituency at Haripad - Irregularities re-counting and
                  verification request regarding.##

Sir,

I was election agent of Shri M. R. Gopalakrishnan, a candidate of 104, Kayamkulam Assembly
Constituency. The counting of the votes of the Constituency was held at Govt. H.S. for Girls,
Haripad on 16-6-1991. After the counting of votes, having doubts and having noticed specific
irregularities in the counting, before the declaration of the results I gave in writing a request to the
Returning Officer for re-counting of votes on reasonable grounds. But, to the surprise of all present,
the Returning Officer, unilaterally declared Shri Thachady Prabhakaran elected by 33 votes, under
our vehement protest. Against this arbitrary decision of the Returning Officer the candidate filed a
petition to the District Collector, Alleppey.

The immediate rejection of our demand for re-counting of votes was illegal and against rules. Our
demand for re-counting was based on the following grounds :

                  1. A good number of postal ballots were rejected without valid reason.

                  2. Votes which were valid in our favour were counted as invalid.

                  3. In many booths, the ballots in the box did not tally with the statement.

                  4. Many counting officers were the relatives and partymen of the UDF candidate and
                  they purposefully helped the UDF candidate.
                  5. The congestion of the counting hall, the frequent outbursts of impatience and
                  protest of the counting officers prevented the peaceful counting.

For the above reasons I request you to be good enough to take steps for the re-counting of votes of
104, Kayamkulam, for which I shall be grateful to you.

#

Yours faithfully,

Sd/- M. R. RajasekharanKayamkulam,

21-6-1991

##

In this application it may be noted that the irregularities pointed out in paras 1 to 5 of the application
were not mentioned in the earlier two applications Ext. P-207 and Ext. P-211. This clearly goes to
show that the irregularities pointed out in this latter application are only an afterthought and not
based on any true facts. If in fact any of the irregularities of the kind alleged in paras 4 and 7 of the
election petition or those mentioned in the applications dated 21-6-1991 were in fact committed,
then why these irregularities were not pointed out to the Returning Officer or to any of the observes
when they visited the counting hall when counting was going on. No complaint about any
irregularity or about the uncongenial atmosphere of the hall was reported either orally or in writing
to the Returning Officer or to any official connected with the affairs of the counting during the
course of counting on 16-6-1991. In these facts and circumstances it is difficult to accept the
allegations that the atmosphere of counting hall was not congenial or there was any difficulty in the
counting due to the size of the hall or any irregularities were committed as alleged by the appellant
in the election petition. In these facts and circumstances the High Court is fully justified in taking
the view that no case for a direction for re-count was made out.

15. It may be pointed out here that the true legal position in the matter of allowing or disallowing a
request for re-count is no longer in doubt but well settled. That the tribunal or the court trying an
election petition has power to direct inspection and re-count of votes if the material facts and
particulars are pleaded and adequate grounds are found to exist for directing such re-count in the
interest of justice is now well settled. While doing so, however, the provisions contained in Section
94 of the Act may not be ignored but the same be given due weight and consideration before
directing inspection and re-count. Section 94 of the Act directs that 'secrecy' of voting not to be
'infringed'. It directs that no witness or other person shall be required to disclose for whom he has
voted at an election particularly in view of the statutory rules which provide adequate safeguard for
proper conduct of the counting and for testing the validity or invalidity of the ballot papers. The
rules relating to counting of votes in Parliamentary and Assembly Constituencies are contained in
Part IV of the Conduct of Election Rules, 1961 hereinafter referred to as the Election Rules. Rule 51
provides for the time and place for the counting of votes. Rule 52 relates to the appointment of
counting agents and revocation of such appointments while Rule 53 makes provision for admission
of counting officers and counting assistants as may be appointed to assist the Returning Officer in
the counting; persons authorised by the Election Commission; public servants on duty in connection
with the election and; candidates, their election agents and counting agents; fixing the place for
counting. Further Rule 54 contemplates that the Returning Officer shall apprise all persons present
in the counting hall the provisions of Section 128 which relate to the maintenance of secrecy of
voting. Rule 55 deals with scrutiny and opening of the ballot boxes after the same are inspected by
the counting agents present at the particular table with regard to the seal which may be affixed
thereon to satisfy themselves that they are intact. In addition to this the Returning Officer himself
has to satisfy that none of the ballot boxes have been tampered with and in the event the Returning
Officer is satisfied that any ballot box has in fact been tampered with he shall refrain from counting
the ballot papers contained in that box and take steps in accordance with Rule 58 of the Act. Further
Rule 56 provides the mode of counting, scrutiny and rejection of the ballot papers if found to be
invalid for any reasons pointed out in the said rule. Rule 56, also makes provisions for raising of
objections with regard to any ballot paper and deal with it in accordance with law. From this
elaborate procedure right from the point of opening of the ballot box up to the stage of sealing the
ballot papers after the counting is over, it is evidently clear that the rule and procedure of counting
provide the candidates and their counting agents sufficient and adequate opportunity to see and
examine and raise objections, if any, in respect of any ballot paper with regard to its validity or
otherwise and it is only after objections, if any, the ballot paper is admitted as valid or invalid as the
case may be. Not only this but even after the completion of the process of counting a provision is
made in Rule 63 to make a demand to the Returning Officers for re-count of the votes either wholly
or in part stating the grounds on which the demand for such re-count is made. It is only after the
compliance of this elaborate procedure that the Returning Officer prepares the result sheet in Form
20 and declares the result.

16. After a cursory glance of the relevant provisions discussed above it is thus abundantly clear that
the rules provide adequate opportunity to a candidate, his election agent and counting agent to have
a watch over the counting process before the result is declared and if they raise any objection as to
the validity or otherwise of any ballot paper and if the said objection is improperly rejected, the
candidate, his counting and election agent are well informed of the nature of the objection that was
raised with regard to the ballot papers and make a concise statement of material facts in the election
petition in relation thereto. It is for these reasons that this Court has repeatedly held that the secrecy
of the vote has to be maintained and a demand of re-count should not ordinarily be granted unless
the election petitioner makes out a prima facie case with regard to the errors in the counting and is
able to show that the errors are of such magnitude that the result of the election of the returned
candidate is materially affected. The election petitioner, in order to seek an order of re-count, has to
place material and make out a prima facie case on the threshold and before an order of re-count is
actually made. The demand of a defeated candidate for re-count of votes has to be considered
keeping in view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the
election petitioner is able not only to plead and disclose the material facts but also substantiate the
same by means of evidence of reliable character that there existed a prima facie case for the re-
count, no tribunals or court would be justified in directing the re-count.

17. This Court in Bhabhi v. Sheo Govind ((1976) 1 SCC 687) while dealing with the question of
direction for inspection and re-count, on a close and careful consideration of various authorities of
this Court laid down certain guidelines and conditions which are imperative before a court can grant
inspection of the ballot papers. The said conditions and guidelines are set out below : SCC pp. 693-
94, para 15)

                  "(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and
                  should not be allowed to be violated on frivolous, vague and indefinite allegations;

                  (2) That before inspection is allowed, the allegations made against the elected
                  candidate must be clear and specific and must be supported by adequate statements
                  of material facts;

                  (3) The Court must be prima facie satisfied on the materials produced before the
                  Court regarding the truth of the allegations made for a re-count;

                  (4) That the Court must come to the conclusion that in order to grant prayer for
                  inspection it is necessary and imperative to do full justice between the parties;

                  (5) That the discretion conferred on the Court should not be exercised in such a way
                  so as to enable the applicant to indulge in a roving inquiry with a view to fish
                  materials for declaring the election to be void; and

                  (6) That on the special facts of a given case sample inspection may be ordered to lend
                  further assurance to the prima facie satisfaction of the Court regarding the truth of
                  the allegations made for a re-count, and not for purpose of fishing out materials."

In a recent decision in Satyanarain Dudhani v. Uday Kumar Singh (1993 Supp (2) SCC 82) this
Court again reiterated the similar view by observing that the secrecy of the ballot papers cannot be
permitted to be tinkered with lightly and an order of re-count cannot be granted as a matter of
course. It is only when the High Court is satisfied on the basis of material facts pleaded in the
petition and supported by the contemporaneous evidence that re-count can be ordered. When there is
no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily it
would not be proper to order re-count on the basis of bare allegations in the election petition.

18. As discussed in the foregoing paras, in the present case, there is no specific instance or
allegation in the petition with regard to any particular irregularity and the meagre and vague
allegations that have been made are not supported by any contemporaneous evidence making out a
prima facie case for re-count and, therefore, the Returning Officer as well as the High Court were
fully justified in rejecting the demand for re-count.

19. This brings us to the second ground of attack advanced by the learned counsel for the appellant
with regard to the rejection of 146 postal ballot papers of Ext. P-55 series which are alleged to have
been rejected without any endorsement and without assigning any reason for such rejection in
violation of the mandatory provisions contained in Rule 54(A)(4) of the Election Rules which
according to the learned counsel for the appellant materially affected the result of the election. It
was submitted that since the rejection of postal ballot papers was improper, keeping in view the low
margin between the appellant and the returned candidate Respondent 1 herein, the High Court
should have allowed the prayer of re-count. As against this Shri Joseph, learned counsel appearing
for Respondent 1 submitted that the mere fact of non-recording of reasons could not lead to the
inference that the result of the election has been materially affected not could it justify re-count,
without proper pleadings and material facts being furnished in the election petition. He submitted
that the case of the petitioner/appellant was not that his valid postal ballots had been wrongly
rejected or that the invalid postal ballots of the returned candidate had been improperly accepted
from Ext. P-55 series and, therefore, the omission on the part of the Returning Officer to endorse the
reasons for rejecting the postal ballots on the grounds which were otherwise valid, would be of no
consequence. However, after very lengthy arguments advanced by the learned counsel for the parties
on this point, Shri Poti, learned Senior Counsel for the appellant made an application on 13-9-1994
in this Court which was taken on board, praying that the postal ballot papers (Ex. P-55 series) be
subjected to inspection by this Court in view of the narrow margin of votes between the appellant
and the returned candidate Respondent 1. Learned counsel for Respondent 1 was good enough and
farily recorded his "No Objection" to the prayer made on behalf of the appellant in the aforesaid
application. We, therefore, with a view to do complete justice between the parties and to satisfy our
judicial conscience, since the finding of the High Court was not clear as to whether or not the
rejected postal ballot papers Ext. P-55 series had been subjected to any inspection or scrutiny when
the Returning Officer PW 16 was being examined in the Court, granted the prayer of the counsel for
the appellant and the inspection of the postal ballot papers, Ext. P-55 series was conducted by us in
the Court in the presence of learned counsel for the parties who also participated in the process of
inspection. On inspection of the postal ballot papers Ext. P-55 series we found that except a few
postal ballot papers from the said series where incomplete declaration forms had been filed, the
details whereof are given, the other postal ballot papers did not include any declaration form at all
as required by Rule 54-A, in the outer cover. The longer outer cover contained only a small cover
containing the ballot paper itself. After inspecting more than half of the ballot papers we did not
deem it necessary to inspect all the 246 ballot papers as the learned counsel for the parties conceded
that no further exercise was necessary to inspect the postal ballot papers of Ext. P-55 series because
the rejection of the ballot papers by the Returning Officer were found to be in order by us in the
Court in the presence of the counsel for the parties in the random sample inspection of more than
150 postal ballots of Ext. P-55 series and the same were found to have been rightly rejected. The
postal ballot papers in which the declaration forms were found along with the smaller cover
containing the ballot papers the following position :

                  1. P-55 (176) All the entries in the declaration form are totally blank.

                  2. P-55 (181) The entries in the declaration form are totally blank.

                  3. P-55 (165) The declaration form in the outer cover is totally blank.

                  4. P-55 (161) The declaration form is totally blank.

                  5. P-55 (160) The declaration form is totally blank.

                  6. P-55 (159) The declaration form is totally blank.

                  7. P-55 (154) and P-55 (156) The larger cover contains two small envelopes,
                  containing ballot papers of Assembly and Parliamentary Constituencies but no
                  declaration form at all.

                  8. P-55 (86) Does not even have a smaller cover containing the ballot paper, let alone
                  the declaration form.

                  9. P-55 (92) There is no declaration form and instead along with the small cover,
                  From 13-D, containing instructions for the guidance of electors has been enclosed in
                  the outer cover.

Faced with the aforesaid situation, Shri Poti, learned counsel for the appellant candidly submitted
that in view of the result of the inspection carried out by us in the Court he was not in a position to
support his submissions that the postal ballot papers had been wrongly rejected by the Returning
Officer. Thus this ground of attack also fails.
20. We now come to the third ground advanced by the learned counsel for the appellant that invalid
votes were counted in favour of the returned candidate Respondent 1 and that out of the total
rejected votes of 1375, quite a large number of valid votes in favour of the appellant were rejected,
which materially affected the result of the election. Learned counsel for the respondent submitted
that the appellant has not set forth the concise statement of material fact with regard to the allegation
of counting invalid votes in favour of Respondent 1 nor has given any particulars of such invalid
votes which are alleged to have been counted in favour of Respondent 1. He also submitted that
similarly there are no particulars with regard to the rejection of valid votes in favour of the appellant
nor number of such votes in order to support the allegation that such rejection of valid votes in
favour of the appellant materially affected the result of the election. In our opinion there is no
substance in these submissions made by the learned counsel for the appellant. In fact the appellant
has neither pleaded the details and the number of such invalid votes which were counted in favour
of Respondent 1 nor has given the particulars of the number of such valid votes in favour of the
appellant which were wrongfully rejected during the course of counting. This apart, the Returning
Officer, Supervisors and other officials were also present in the counting hall throughout the process
of counting and the observers also visited the counting hall, but neither the appellant nor any of his
counting agents pointed out or objected either orally or in writing that invalid votes were counted in
favour of Respondent 1 or valid votes in favour of the appellant were rejected. The evidence of the
Returning Officer, PW 16 clearly goes to show that no such complaint was made by anyone during
the course of counting. In these facts and circumstances it is difficult to accept the allegations made
by the appellant which seem to be only an afterthought and without any evidence or material to
support the same.

21. Learned counsel for the appellant, however, submitted that having regard to the size of counting
hall which was packed and uncongenial atmosphere prevailing therein as stated earlier it was not
possible for the petitioner/appellant or his agents to watch, oversee and check the ballot papers so
that they could take note of the particulars of ballot papers which were not correctly placed in the
respective bundles of the candidates in whose favour the votes were cast or the particulars of those
votes which were rejected as invalid though the same were otherwise valid and, therefore, it was not
possible for the petitioner/appellant to make a mention or plead any more facts and particulars
beyond those already stated in paras 4 and 7 of the petition. After giving our anxious consideration
to the submissions made above, we are unable to persuade ourselves to accept the same. In the
earlier part of this judgment, we have already discussed the evidence and material on record and
found that there is absolutely no basis to show that there prevailed any kind of confusion or
irregularity in the counting which could have disabled the appellant or his agents from watching the
process of counting. As said above no such grievance was ever advanced by the appellant or his
agents at the time of counting either orally or in writing to the Returning Officer or to the observers
or to any member of the counting staff deputed for the purpose. The applications for recount were
made only after the counting was over and the result was declared and that too with vague
allegations. This submission has no merit and the same is accordingly rejected.

22. Learned counsel for the appellant lastly contended that the election of Respondent 1 was liable
to be declared void and cancelled on the ground of corrupt practice under Sub-section (3-A) of
Section 123 of the Act as Respondent 1 tried to promote the feeling of enmity and hatred between
different communities of the Constituency by publication and distribution of the pamphlets
Annexures VI, VII, VIII, IN and X which are marked as Ext. P-158, Ext. P-159, Ext. P-162, Ext. P-
157. In this connection it may be pointed out that the High Court has minutely and critically
examined the evidence adduced by the parties which has been discussed at length in paras 22 to 37
of judgment and the High Court has recorded the conclusion that the appellant had failed to
establish that these pamphlets were published or distributed by Respondent 1 or his agent or any
other person with the consent of Respondent 1 or his election agent. Learned counsel for the parties
took us through the entire evidence on the point and after analysing the same we find ourselves in
agreement with the view taken by the High Court. It has been the consistent practice of this Court
not to interfere with the findings on the questions of fact unless there is some grave or palpable error
in the appreciation of evidence on the basis of which the findings were arrived at by the
tribunal/High Court. In the present case after scrutinising the evidence adduced by the parties we
find no error or infirmity much less grave or palpable which may call for any interference with the
finding. We are, therefore, unable to accept the submissions made by the learned counsel for the
appellant on this count also.

23. In view of the foregoing discussion and the conclusions recorded by us, even if we accept the
submissions of learned counsel for the appellant that further 9 votes in favour of Respondent 1
should also have been rejected for double voting by the said nine voters as pointed out by him,
although there is no sound basis for the same, yet it would only reduce the margin from 13 to 4
without materially affecting the result of the election.

24. Thus even after giving all the possible discounts the election of Respondent 1 cannot be set aside
or declared void as he still remains a winner. In view of these facts and circumstances it would be a
futile exercise to go into the question of recrimination petition made by Respondent 1 making
certain allegations against the petitioner/appellant. We, therefore, decline to examine the same.

25. For the reasons stated above the appeal fails and is hereby dismissed with costs. Costs quantified
at Rs. 5000.

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