SURESH PRASAD YADA V v. JAI PRAKASH MISHRA & ORS.
Citation: [1975] 3 S.C.R. 21; 1974 INSC 270
Court: Supreme Court of India
Bench: A. ALAGIRISWAMI , V.R. KRISHNA IYER, R.S. SARKARIA
Judgment date:
Case summary
1974 INSC 270. Supreme Court of India judgment dated 1974-12-13. SURESH PRASAD YADA V v. JAI PRAKASH MISHRA & ORS. Read the judgment and case details on...
Judgment text
21 A SURESH PRASAD YADA V v. JAI PRAKASH MISHRA & ORS. December 13, 1974 [A. ALAGIRrsWAMI, v. R. KRISHNA IYER AND R. s. SARKARJA, JJ. ] B Election Law-Recou/l/ of Ballot papers-Court, when justified in ordering c D E F G H recount. Condurt of Election Rules, Rules 38 (1) and 93(1 )-Custody of "Unused baliot papers" with District Election Officer a post-election custody-Opening of pacK'et and i11spec1i11g and coullfing of unused ballot papers, if illegal. In the election from 168-Katoria Bihar legislative Assembly constituency, the Respondent No. 1 was d1:clared elected having secured 16649 votes as against 16074 polled by the appellant. The votes rejected as invalid were 12! 9. The appellant filed an election petition challenging the election of the ret ned can- didate on the ground that several irregularities and illegalities were committed in the counting of votes. The petition was resisted by the returned candidate.
The High Court framed issues, recorded the evidence produced by the parties and held that the allegations had not been substantiated. It declined the request for a recount and dismissed the petition. Hence this appeal by the petitioner. I! was contended for the appellant: (i) Four unauthorised persons were aliowed to work as Counting Supervisors at tables 4, 5, 7 and 9 in breach cf the ru! es and this had vitia·'. ed the counting, (ii) When the fact, that, 50 unsigned ballot papers relating to polling station No.
74 were in excess of those actually polled, was brought to the notice of the Assistant Returning Officer, he, in violation of Rule 93(1) of the Ccindu:t of Election Rules and to cover up the irregularity, opened that packet and inspected those unused ballot papers; (iii) The detailed resultsheet prepared tablewise in accordance with the instructions of the Election Commission has been deliberately suppressed to prevent detection of mistakes and manipulations made in the counting, and (iv) Despite protest, 600 votes were counted twice in favour of Respondent No. I.
Rejecting the contentions and dismissing the appeal, HELD : The court would be justified in ordering a recount of the ballot papers, only where : (I) the election-p,etition contains an adequate statements of all the material facts on which the allegations of irregularity or illegality in counting are founded; 12) (3) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting and; the Court trying the petition is prima facie satisfied that the mak- ing of such an order is imperatively necessary to decide the dis- pute and to do complete and effectual justice between the parties. [23H; 24A-B] (i) There is not even an oblique hint in the election petition that any un- authorised person was allowed to act as Counting Supervisor or Cou11ting Assistant. It was made at the stage of final arguments in the application seeking a recount.
Questioning the Returning Officer and the Assistant Returning Officer in this re- gard during cross-examination, could hardly constitute an adequate notice to the Respondent of this new plea. That apart, neither the petit'·Jne;· nor his chief Counting Agent alleged anything of this kind. All the four persons are Govt. G. fic ials. The fact that their names do not appear in Ex. 6 does not exclude the prob:1bility of their having been appointed and kept in reserve by a separate order or orders to act as counting Supervisors in case of need. That such appointments were made and a waiting list was prepared is disclosed in the evidence of the Returning Officer, and it receives further support from the evidence of R. W. 18 22 SUPREME COURT REPORTS [1975] 3 s. c. R. and R. W. 19.
The circumstances of this case fully attract the maxim omnia prae- sumumur rite esse acta, and it would be presumed that the aforesaid four persons were rightly and regularly appointed and admitted into the Counting Hall to act as Counting Supervisors, by the Returning Officer. On this score n. o violation of Rule 53 or any other statutory provision has been established. [24F-H; 24A-E] (ii) The act of the Returning Officer in opening the packet, and inspecting and counting the unused ballot-papers found therein, far from amounting to an ille- gality, wa~ necessary for the due performance of the duty enjoined on him by the Rules. · The language of Rule 93 is clear enough to indicate that the custody of the District Election Officer or the Returning Officer spoken of in the Rule is a post-election custody. Indeed, in the present case, an objection was raised that fiity unused ballot papers in the packet did not bear the mark m signature required by Rule 38 (! ).
The Returning Officer was therefore, fully competent to open the packet and inspect and count the ballot papers found therein. [28F; CJ \iii) The absence of a detailed resμlt-sheet showing tablewise figures of each rot111d of counting does not make the verification of the figures collated in the final result sneet drawn up in Form 20, impossible or even difficult as such figure~ can always be checked with the aid of Check Memos which contain tablewise figures of each round. [29G-H] (iv) In the application for a recount submitted to the Returning Officer, the appellant alleged that 600 votes constituting one bundle, have been "recounted again". aut it was not alleged therein, even in an embryonic fqr:m, that 600 uncounted votes in bundles were detected lying underneath the 'table of the Assistant Returning Officer. Such an allegation appeared for the first time in the election :petition filed 33 days later. The .
:;riginal allegation was untenable because such an excess was not reiiected in the grand total of the result sheet. The total was correct. The result sheet falsified the subsequent contention also which had been put forward as an afterthought. [30F-H] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 208 of 1973. From the Judgment and order dated the 25th Septembi! r, f973 of the Patna High Court in Election Petition No. 4 of 1972. · :: K. K. Prasad, K. K. Sinha and S. K. Sinha for the appellant. K. 1'. Varma, D. P. Mukherjee and D. Goburdhan for respondent No. 1. U. S. Prasad for rtspondent No. 3. The Judgment of the Court was delivered by SAR. KARIA, J. Election from 168-Katoria Bihar Legislative Assem· bly Copstituency took place in March, 1972. The poll was held on March 11, 1972 and the votes were counted on March 12, 1972. Respondent No.
1 herein, an independent candidate, WclS declared elected having secured 16649 votes as against 16074 ·polled by the appellant, a nominee of Indian National Congress (R). There were three other candidates (Respondents 2 to 4) who secured 2347, 8001 & 1542 votes respectively. The votes rejected as invalid, were 1219. On April 14, 1972, the appellant filed an election pe:tition under the Representatio~ of the People Act, 1951 challenging the election of the returned candidate on the ground that several irregularities and illegalities were committed in the counting of votes. The petition was resisted by the returned candidate. The High Court framed issues, recorded the evidence produced by the parties A 8 c D E F G H A B c D E F G s. P, YADAV v. J, P •. MISHRA (Sarkaria, J. ) 23 and held that the allegoations had not been substantiated. It declined the request for a recount and dismissed the petition. Hence · this appeiil by the petitioner. · Mr.
Prasad, learned Counsel for the appellant contends that the following irregularities/illegalities in the counting had been established : (1) Four unauthorised persons, viz. , Ajudhya Prasad Singh, Q. M. Zaman, P-arvez Ahmed and Radhey Sham Sah were allowed to work as Counting Supervisors at tables 4, 5, 7 and 9 in breach of the rules, and this had vitiated the counting. (2) In the first round of counting at t•able No. 4 in the box relating to polling station No. 74, Madhopur U. P. School, 50 unsigned ballot papers were found in excess of those . actually polled. When this was detected and brought to the notice of the Assistant Returning Officer, he, in viola- tion of Rule 93 (1) of the Conduct of Election Rules (for short, called the Rules) and to cover up the irregularity, . opened that packet and inspected those unused ballot papers. (3) The detailed result-sheet which was inter a/ia prepared ti? blewise, in accordance with the instructions of the Elec- · tion Commission, has bee.
ii deliberately suppressed to pre- vent detection of mistakes and manipulations made in the counting. ( 4) About 600- 700 uncounted ballot p•apers in bundles were kept below his table by the Assistant Returning Officer. In the final round of counting, despite protest, 600 votes were counted twice, in favour of Respondent No. 1. That was why the petitioner who at the end of the third round was leading by a margin of 2205 votes, was shown having Jost by 575 votes to Respondent No. 1, notwithstanding) the fact that in the last round there were only 3800 b>allot papers to be counted. Before dealing with these contentions, we may recall, wbat this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made oas a matter of course. The reason is two-fold. Firstly such an order affects the secrecy of the ballot which under the Jaw is not io be lightly di>turbed. Secondly, the Rules pm- vide an elaborate procedure for counting of ballot papers.
This pro- cedure contains so many statutory checks and effective safegirards against trickery mistakes and fraud in counting, that it can be called almost fool-proof. Althoug'1 no h y Assembly Members and in Council Constituencies''. It includes Rules 67 to 70. Part VII provides for "Counting of votes at Elections by Assembly Members or in Council Constituencies". It contains Rules 71 to 85. It will be seen that Rule 93 has not been placed in any of the Parts relating to counting of votes. It seems to have been advisedly placed' in Part IX c. •aptioned "Miscellaneous'', which in the serial order comes after the Parts dealing with voting and counting of votes. V_iewed in the light of the scheme of the Rules, and its setting, the language of Rule . 93 seems to us clear enough to indicate that..
the custody of the District Election Officer or the Returning Officer spoken· of in the Rule is a post-election custody: Such an indica~ion is avail-· able in the words ''unused ballot papers" which repeatedly occur in this rule. The word /'unused" in the context means that which "was. made available for use in the election but· remained unused in the· election". Sub-rule (3) of the Rule enables the authorities mentioned· therein to issue copies of the returns forwarded by the Returning Offi-- cer under Rule 64 or Rule 84(1) (b). The supply of such copies willJ obviously be a post-election function. 28 SUPREME COURT REPORTS , [1975] 3 s. c. R. Any other interpretation of Rule 93 and its scope would make it difficult, if not altogether impossible, for the Returning Officer to per- form the various functions and duties enjoined by the rules at the stage ot counting. This will be clear from a reference to the other Rules ..
Take for instance Rule 56 which requires that the ballot papers shall fir. ~t be taken out from the boxes used in a constituency and mixed to- gether and then arranged in convenient bundles and scrutinised. Sub· rule (2) of Rule 56 further requires inter alia that if a IYallot paper does not bear an:y mark at all or does not bear both the mark or the signature which it should have borne under the provisions of sub-rule (1) of Rule 38, it shall be rejected by the Returning Officer. To per- form this duty it would be absolutely necessary for the Returning Officer to inspect such ballot papers. Indeed, in the present case, an objection was raised that fifty unused ballot papers in the packet did not bear the mark or signature required by Rule 38 (1). The Retllrning Officer was therefore, fully competent to open the packet and inspect and count the ballot papers found therein. Instruction 23 in the Hand Book issued by the Election Com- mission, •also indicates that R.
93 (l) operates at a post-election stage. Under this instruction, the Returning Officer is required to seal the packets of all the papers relating to the election, specified in CJlauses (a), (b), (c), (d) and (c) of R. 93(1) immediately after the count- ing of the votes is over, with his own seal and also with that of the Commission. · After the sealing, the packets are to be put in a seinirate steel box which shall be locked with two locks and each lock shall be sealed. Immediately after the declaration of the election results the sealed box is to be despatched to the District Election Officer w\0 on receipt of the same shall forthright deposit it in safe custody in the Treasury und. :r double-lock. The key of one of the locks is entmsted to the Treasury Officer. In Union Territories such a deposit is to be matie by the Returning Officer. The secret seals of the Commission are returned immediately after their required use.
Thus, it is clear that the custody contemplated by Rule 93 ( 1) is the post-election custody. In the light of the above discussion, the conclusion is inescapable that the act of the Returning Officer in opening the packet, and in ins- pecting and counting the unused ballot-papers found therein, far from amounting to an· illegality, was necessary for the due performance of the duty enjoined on him by the Rules. Accordingly, we overrule this contention. It is urged that the detailed result-sheet, prepared candidatewise, table-wise and roundwise, from which figures mentioned in the final , re:;ult sheet (Exh. 7) were qtracted has been deliberately withheld to prevent detection of the h•anky panky done in the counting. Such a detailed result sheet, it is maintained, was required to be prepared- and was admittedly prepared-under instruction No. 17(q) in the Hand Book for Returning Officers (1970)" issued by the Election Commission.
The contention appears to be attractive but does not stand a close examination. A B c D E F G H A B c D E F G H s. P. YADAV v. J. P. MISHRA (Sarkaria, J. ) 29' Instruction 17(q) in the Hand-Book runs thus : "Side by side, the work of rabulating the result of count- ing shall be done. The Check Memos duly signed by the Returning Officer shall be passed on to an officer seated at a separate table near the Returning Officer/ Assistant Return- ing Officer. This officer shall fill in the result of counting of each round of each table in Form 20.. It is desirable that a separate sheet for each round is used for the purpose. Copies of Form 20 may be printed, cyclostyled or type-written. The entries in the form should be made on loose sheets prepared for the purpose. A copy of Form 20 is at Annexure XIII. " A perusal of Form 20 prescribed under rule 56(7) of the Rules would show that, it does not require that the final result·sheet should be prepared tablewise, also.
It is sufficient if the final result sheet is candidate-wise and roundcwise. The final result sheet (Exh. 7) exact- ly conforms to the prescribed Form 20. I The Assistant Returning Officer (R. W. 13) in cross examination said : "On the above table where the entries used to be made in the result sheets from the checkcmemos, those entries were made candidate-wise, table-wise and round-wise. The figures of total votes of the different rounds of counting, as mention- ed in this abstract result sheet, Exh. 7, (the witness looks into it) ·were not directly taken from the figures as they found men1ion in the differe:Jt check-memos of the different tables of the different rounds of counting, but from these cheek memos the figures were first extracted on the det•ailed result sheet giving their numbers round-wise, candidate-wise and table-wise and thereafter those _figures were totalled round- wise and ex~racted in this Exh. 7. " From the statement of R. W.
13 extracted above, it would appear that at fir. ;t a detailed result sheet in which figures were mbulated candidatewise, tablewise and roundwise was prepared,· and then, there- from. all the figures, excepting those showing table-wise break-up, were carried over to the fipal result sheet, Exh. 7, drawn up in t~e pres- cribed Form 20. This detailed result-sheet, though summoned, is not forthcoming from the Cistrict Election Officer might be, it has been misplaced. Might be, it was destroyed by the Counting Staff after the preparation of the final result,sheet in the prescribed Form. Whatever be the case, the absence of that document, does not make the checking and verification of the figures entered in the final result sheet, Exh: 7 impossible or even difficult. Its preparation is not a requirement of any statutory provision. It is prepared only as oa matter of convenience in view of the instructions of the Election Commission, by carrying ever, collating an "!
given in the Check Memos. Indeed, no argument h•as been advanced before us ·that the figures given in the final result sheet, Ex. 7, would not agree ·with the figures taken and totalled from the Check Memos. - B We therefore, repel this contention. This bring us to the last contention. The argument advanced by Mr. Prasad is that during the four! h round of counting, 600 to 700 unused and uncounted ballot papers in bundles of 25 each were detect .. , ed by the petitioner's counting agent, Jagannath Sah, lyin1~ under the table of the Assistant Returning Officer. J agannath Sah protested. ·The Assistant Returning Officer, however, put those uncounted ballot papers in the lot of counted votes. P. W. 13 also, on coming to know . about it, protested against that mixing. In support of this contention, ·Counsel has referred to the circumstance that at the end of the third round of counting, the •appellant was leading by a margin of 2205 ·votes.
It is urged, this lead of 2205 votes could not thmafter be turned into a deficit of 575 votes when the total number of ballot papers that remained to be counted in the last round, was 3800 only. Like the elusive cloud, this ground of objection, also. has been ever changing its hue and shape. In the application Exh. 3. for a recount which was submitted by the petitioner to the Returning Officer ·at 7 p. m. towards the close of the final round of counting--all that was stated, was : "It is respectfully submitted that recounting of 168 Katoria Assembly Constituency be done. Because one bundle of 600 votes have been recounted again. All the · votes be recounted. " It was not alleged therein, even in an embryonic form that 600 ·uncounted votes in bundles were detected lying 11nderne(1tlz the tahle of the Assistant Returning Officer. Such an allegation, •appeared for ·the first time in the election petition which was filed about 33 days after the election.
What was earlier said to have been 'counted twice . over', had now become completely 'uncounted'. What was then alleged in Ex. 3 to have been counted on the table, has now gone undemealh · the tal,,le. The original allegation illi Ex. 3 (which was repeated . 'in the second application, Ex. 3a, presented at 7-40 p. m. ) was manifestly untenable. because if there was double counting of any ballot papers, the total of the votes polled should have exceeded by the number doubly counted. ·No such excess was reflected in the grand total of the final result sheet. The total was correct. The petitioner had no explanation as to wh,· ·the grand-total of the final result sheet did not show an 1~xcess of 600 . or any other number of ballot papers. It was mainly for this reason. that the Returning Officer had rejected the applications of the peti- tioner for a recount. That is why the petitioner has now come forward with a changed version, invented as an after-thought. c D E F G H { A B c s. P.
YADAV v. J. P. MISHRA (Sarkaria, J. ) 31 The final result sheet, Exh. 7, falsifies his present contention also. it shows that at the end of the third round, the appellant was leading by a margin of 424 votes only. There is no good reason to doubt the authenticity of the figures given in Exh. 7. As against it, the notes, Ex. 2 Series, on which the petitioner relies for his contention that at the end of the third round he was leading by 2205 votes, was a'self-serving and wholly unreliable piece of evidence. These notes (Exh. 2 series) were not mentioned in the list of reliance filed along with the petition. There is no reference to any Si! ch notes or their contents in the applica- tions Exhs. 3 and 3a. These notes are said to have been made Qy the Counting Agents of the petitioner at the time of countfrtg. But in the initial list submitted by the petitioner on 30-8-1972 for summoning among· others, h.
is Counting Agents a~ witnesses, it was not mentioned that they would produce any such notes. Subsequently on 28-3-1973 he moved the court requesting that these witnesses be required to bring their notes. Jn these circumstances, the High Court was right in holding that these notes had been subsequently brought into . existence for the pur- pose of this petition. D For the foregoing reasons, we me of the opinion that the appellant has been unable to make out a good case for a recount of the ballot papers. We dismiss his appeal. He shall pay the costs of Respondent No. l. V. M. K. Appeal dismissed.
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