HIGH COURT OF MADHYA PRADESH : JABALPUR Election Petition No.9/2009 Shriniwas Tiwari, son of Late Mangaldeen Tiwari, Aged about 82 years, Resident of Village Tiwani Tahsil Mangawan Distt. Rewa Present Address Amahiya Distt. Rewa …Petitioner vs.
1. Rajkumar Urmalia, son of Indrajeet Prasad Village Dabhaura, Tahsil Teonthar Distt. Rewa 2. Pradeep Singh ‘Patana’, son of Bhagwat Singh Village Mahmoodpur Tahsil Mangawan Distt. Rewa & 23 others …Respondents ----------------------------------------------------------------------------------- Shri Susheel Kumar Tiwari and Shri Sanjay K. Agrawal, Advocates for the petitioner. Shri Dileep Pandey, Advocate for respondent no.1. Shri Neeraj Singh, Advocate for respondent no.2. None for the respondent Nos.3 to 25, though served. ----------------------------------------------------------------------------------- Date of Hearing :
12. 2.2013 Date of Judgment :
03. 5.2013
JUDGMENTIn this petition, election of the returned candidate viz. the respondent no.1 from M.P. Legislative Assembly Constituency Sirmour No.68 (for short ‘the Constituency’) has been called in question on the grounds mentioned in sub-clauses (iii) and (iv) of Section 100(1)(d) of the Representation of People Act, 1951 (hereinafter referred to as ‘the Act’). Act. The petitioner has further sought – 2 Election Petition No.9/2009 (i) an order for re-inspection/re-count of the votes polled in the constituency and on the basis of such re- inspection/re-count of votes, a declaration that the election of respondent no.1 is void. (ii) a declaration that he himself has been duly elected from the Constituency.
2. Following facts are not in dispute – The petitioner had contested the election as a candidate sponsored by Indian National Congress whereas the respondent no.1 was set up as a candidate of Bahujan Samaj Party and the other 24 respondents including respondent no.2, the official candidate of Bhartiya Janta Party, the then ruling party in the State, were also in the fray. As per the calendar of events, notified by Election Commission of India, on 08.12.2008, counting of votes was done in the premises of Govt. Engineering College, Rewa. The respondent no.1 was declared elected, defeating his nearest rival, the petitioner here, by a margin of 309 votes.
3. According to the petitioner, upon conclusion of the counting of votes, he had won the election by securing the highest votes and, accordingly, the official website of Election Commission of India namely www.ceomadhyapradesh.nic.in also displayed that as the official candidate of Indian National Congress, he had secured 456 votes more than his nearest rival 3 Election Petition No.9/2009 viz. the respondent no.1, who represented Bahujan Samaj Party. Similar result was broadcast on the National Channel of Doordarshan as well as in the regional news on Bhopal Doordarshan between 7.30 to 7.35 p.m. The release by Press Trust of India and the corresponding result uploaded on the official website of Web Duniya viz. http://hindi.webdunia.com/election08result/ElectionInfo.htm also contained the same information. However, at about 9 p.m., to his utter dismay, the Returning Officer informed that he had lost election to respondent no.1 by a margin of 309 votes. Verification revealed that (a) there was a considerable difference of 16 in the number of votes polled including tender votes but excluding postal ballots & the number of votes counted and (b) there was a difference of 947 votes between the final result sheet prepared originally in Form No.20 and return of election in Form No.21-E. Suspecting that the relevant records had been manipulated, he made complaints to the Chief Electoral Officer, Madhya Pradesh, Bhopal and also informed the Chief Election Commissioner of India, New Delhi on 9.12.08 and 13.12.2008 respectively but no action was taken.
4. In the light of these pleadings, the petitioner has asserted that the result of the election, in so far as it concerned the respondent no.1, was materially affected – (i) by the improper reception, refusal or rejection of votes and 4 Election Petition No.9/2009 (ii) by non-compliance with Rule 54A and 56A of Conduct of Election Rules, 1961 (for brevity ‘the Election Rules’).
5. The respondent no.1, while denying the allegations as to illegalities in the counting of ballot papers, has submitted that the petition is based on forged and fabricated documents as well as on apparently wrong information said to have been disseminated through Website or Television or Radio. As further averred by him, even if it is assumed that the petitioner was precluded from making representation in view of a wrong declaration of result on the website or on the television, he was required to offer an explanation as to why the facts pertaining to improper acceptance or rejection of votes or any manipulation in counting as pleaded were not brought to the notice of the Election Commission of India immediately after official/formal declaration of the result. Attention has also been invited to the fact that no prayer for recounting or re-inspection of votes was made by the petitioner or his counting agent before the Returning Officer as contemplated under Rule 63(2) of the Election Rules or in any of the complaints referred to in the petition.
6. The respondent no.2 has not preferred to file a written statement.
7. On these pleadings, the following issues have been framed. Respective finding is noted against each one of them - 5 Election Petition No.9/2009 not Issues Finding 1 Whether the records pertaining to the No election were manipulated ?. 2 Whether any votes have been No improperly cast in favour of the respondent no.1 ?. 3 Whether result of the election, in so far No as it concerns the respondent no.1, was materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void ?. 4 Whether result of the election, in so far No as it concerns the respondent no.1 was materially affected due to non- compliance with the provisions of the Constitution or of the Representation of the People Act, 1951 or if any rules or orders made under the Act ?. 5 Whether the election of the respondent No no.1 to the constituency deserves to be set aside ?. 6 Whether the petitioner was declared as Yes, but elected – it had no (i) on the official website effect on the Election Commission of India. actual result (ii) in the news Broadcasted on of the the National Channel of election Doordarshan. (iii) in the release by Press Trust of India and (iv) in the corresponding result uploaded on the official website of Web Dunia. If so the effect ?. 7 Whether the petitioner is entitled to get No the votes decoded and recounted ?. 8 Whether the petitioner is entitled to be No declared as elected ?. 6 Election Petition No.9/2009 9 Whether the petition is based on forged, Only fabricated and unauthenticated (Ex.P/14-A documents ?. and P/18-C) are such documents 10 Relief and Costs ?. Petition dismissed with no order as to costs. REASONS FOR THE FINDINGS ISSUE Nos.6(i) (ii) (iii) and (iv) an”
8. In support of his assertion that on the website of Election Commission of India and in the corresponding news telecast on Television as well as in the Press Release, he was declared elected by securing a lead of 456 votes over his nearest rival, petitioner Shriniwas Tiwari (PW1) not only examined himself but also produced – (a) Nagendra Mishra (PW5), a Computer Teacher, who has claimed to have downloaded the information from the Websites of ‘Election Commission of India’ and ‘Chief Election Officer’ of the State and handed over the printout (Ex.P-4) to the petitioner, while congratulating him on his success. (b) Umesh Dixit (PW2), the Editor and Publisher of Daily Newspaper ‘Dainik Kirti Kranti’, who came forward to say that he had also taken Printout (Ex.P-8) from Website of ‘Web Duniya’. 7 Election Petition No.9/2009 9. In his chief-examination, the petitioner has also made reference to the contents of letters (Ex.P-5 to Ex.P-7), respectively authored by D. Prasad Rao, Director of Doordarshan Kendra, Bhopal, Sunil Kumar Tiwari, the News Editor and A.K. Sharma, In-charge of the Local Office of Press Trust of India at Bhopal, indicating that the news as to his win in the election was broadcast on the basis of the information disseminated by the Election Commission of India on its Website. Nothing could be elicited in his cross-examination so as to render his evidence unworthy of credence or to make any of the aforesaid documents spurious. Incidentally, the respondent no.1 Rajkumar Urmalia (DW1) has only pleaded ignorance about the information regarding petitioner’s win on the website. Avadh Bihari Singh (DW8), the District Information Officer deputed by the National Informatics Centre to upload Results of each round of counting from the counting centre directly to the website of Election Commission of India, has also admitted that the website created temporarily did not remain in existence after declaration of the election results. He has further pointed out that every information in the form of Progressive Flash Report uploaded by him was subject to disclaimer.
10. No dispute was raised as to assertion made by respondent no.1 Rajkumar Urmalia (DW1) that Progressive Flash Report (Ex.P-4) also contained wrong information regarding results of the election to Teonthar and Semariya constituencies of Distt. Rewa as- (i) the candidate sponsored 8 Election Petition No.9/2009 by Indian National Congress was declared elected from Teonthar constituency whereas the successful candidate belonged to Bahujan Samaj Party and (ii) margin of defeat in respect of Semariya constituency was shown as 167 votes as against the actual difference of more than 5000 votes. Further, as rightly pointed out by learned counsel for the respondent no.1, the misleading information as to win of the petitioner by a margin of 456 votes appears to be based on the results of last i.e. 12th round of counting, wherein the margin of votes secured by the petitioner (1681) and polled by the next highest candidate viz. respondent no.2 (1225) was 456 only. It is pertinent to note that in the Progressive Flash Report (Ex.P/4), petitioner was shown to have won the election by defeating his nearest rival, the authorized candidate of Bhartiya Janta Party (not of Bahujan Samaj Party) by 456 votes. Thus, viewed from any angle, it is not possible to say that the Progressive Flash Report (Ex.P-4) was a forged and fabricated document.
11. Coming to the other documents relied on by the petitioner, it may be observed that only genuineness of copies of the result-sheet (Ex.P-14-A and Ex.P-18-C) said to have been made available to him by Rajendra Tiwari (PW3), Sub-Editor of ‘Satyaganga’, a daily newspaper published from Sidhi and Sanjeev Mohan Gupta (DW2), the Local Editor of Dainik Jagran, Rewa, has been called in question. Returning Officer Mohd. Fatahulla Khan (DW6) has been emphatic in stating that none 9 Election Petition No.9/2009 of these documents was prepared or signed by him while Horilal Choudhary (DW7), the then Deputy Director, Department of Public Relations, has clearly refuted the suggestion that the documents were made available by the Department to the correspondents of various newspapers. His reply (Ex.D-2) to the corresponding query made by respondent no.1 vide letter-dated 24.10.2009 (Ex.D-1) has also been brought on record. However, he has clearly admitted that the return of election containing relevant data in form (Ex.P/21-E) was forwarded by him to the correspondents of various news papers along with the letter (Ex.P/18-E), amended draft of which (Ex.D/18-D) was retained in the Office.
12. In view of all this evidence, it can easily be concluded that the information regarding win of the petitioner by a margin of 456 votes over his nearest rival, who was wrongly shown as the candidate belonging to Bhartiya Janta Party, was displayed on the official website of Election Commission of India as well as on Web Dunia and was flashed through news channel of Doordarshan and Press Trust of India, a news agency. Still, it had no effect whatsoever on the actual result of the election. Further, amongst the documents produced by the petitioner in support of his allegations as to the illegalities in the counting process, only copies of the so-called result-sheets (Ex.P/14-A and P/18-C) are apparently not genuine documents. The issues are answered accordingly. 10 Election Petition No.9/2009 ISSUE Nos.1, 2, 3 an”
13. As per statement of the petitioner Shrinivas Tiwari (PW1), a number of illegalities were committed and records pertaining to the counting of votes were tampered with at the instance of party in power. In support of the allegations, he has highlighted the following facts - (i) In the subsequent notification issued on 12.12.2008 by the Publication Department and published in various local news papers, it was admitted that the data reflected in the earlier notification issued on 10.12.2008, were found to be incorrect. (ii) Returning Officer had opened only 60 postal ballot papers and noticing that 30 were given to him, did not proceed to open the remaining 305 postal ballots. Moreover, initially, all the 30 votes were shown in the account of respondent no.1. (iii) In the 9th round of counting, as many as 1000 votes, which were polled in his favour, were credited to the account of respondent no.2.
14. For the sake of convenience, these allegations may be discussed under the following heads - COUNTING OF POSTAL BALLOTS 1 Election Petition No.9/2009 15. Rule 54-A of the Conduct of Election Rules, 1961 (for short ‘the Rules’), that prescribes the procedure for counting of postal ballots, reads as under:- 54-A.- Counting of votes received by post.-(1) The returning officer shall first deal with the postal ballot papers in the manner hereinafter provided. (2) No cover in Form 13C received by the returning officer after the expiry of the time fixed in that behalf shall be opened and no vote contained in any such cover shall be counted. (3) The other covers shall be opened one after another and as each cover is opened, the returning officer shall first scrutinise the declaration in Form 13A contained therein. (4) If the said declaration is not found, or has not been duly signed and attested, or is otherwise substantially defective, or if the serial number of the ballot paper as entered in it differs from the serial number endorsed on the cover in Form 13B, that cover shall not be opened, and after making an appropriate endorsement thereon, the returning officer shall reject the ballot paper therein contained. (5) Each cover so endorsed and the declaration received with it shall be replaced in the cover in Form 13C and all such covers in Form 13C shall be kept in a separate packet which shall be sealed and on which shall be recorded the name of the constituency, the date of counting and a brief description of its content. (6) The returning officer shall then place all the declarations in Form 13A which he has found to be in order in a separate packet which shall be sealed before any cover in Form 13B is opened and 12 Election Petition No.9/2009 on which shall be recorded the particulars referred to in sub-rule (5). (7) The covers in Form 13B not already dealt with under the foregoing provisions of this rule shall then be opened one after another and the returning officer shall scrutinise each ballot paper and decide the validity of the vote record thereon. (8) A postal ballot paper shall be rejected- (a) if it bears any mark (other than mark to record the vote) or writing by which the elector can be identified; or (aa) if no vote is recorded thereon; or (b) if noted are given on it in favour of more candidates than one; or (c) if it is a spurious ballot paper; or (d) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established; or (e) if it is not returned in the cover sent along with it to the elector by the returning officer. (9) A vote recorded on a postal ballot paper shall be rejected if the mark indicating the vote is placed on the ballot paper in such manner as to make it doubtful to which candidate the vote has been given. (10) A vote recorded on a postal ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked. (11) The returning officer shall count all the valid votes given by postal ballot in favour of each 13 Election Petition No.9/2009 candidate, record the total thereof in the result sheet in Form 20 and announce the same. (12) Thereafter, all the valid ballot papers and all the rejected ballot papers shall be separately bundled and kept together in a packet which shall be sealed with the seals of the returning officer and of such of the candidates, their election agents or counting agents as may desire to affix their seals thereon and on the packet so sealed shall be recorded the name of the constituency, the date of counting and a brief description of its contents. (Emphasis supplied) 16. Admittedly, petitioner Shriniwas Tiwari (PW1) did not remain present during the entire process of counting and had appointed as many as 13 counting agents including Ramashankar Mishra, examined as PW6. It is relevant to note that the petitioner has not preferred to summon the Returning Officer to prove the corresponding pleadings in Paragraphs 15 to 17 of the petition or to summon relevant account of votes recorded by the counting supervisor in Part II of Form 17-C, which is required to be signed by the candidates or their representatives. As such, the case of the petitioner hinges on testimony of Ramashankar Mishra and relevant contents of complaints made to the Chief Electoral Officer, Madhya Pradesh, Bhopal and Election Commission of India (Ex.P-9 and Ex.P-10 respectively).
17. Ramashankar Mishra (PW6) has candidly admitted that – 14 Election Petition No.9/2009 (a) First of all, the postal ballots, 365 in number, were taken up for counting at the Returning Officer’s table. (b) He did not raise any objection as to non-inclusion of 305 postal ballots. (c) He had not moved any application for recounting of the postal ballots.
18. Thus, Ramashankar Mishra, the petitioner’s key witness, has not been able to highlight violation of any Rule or Guideline relating to counting of postal ballots. On the contrary, Mohd. Fahatulla Khan (DW6), the Returning Officer, has also categorically stated that all the 365 postal ballots were opened and were scrutinized in presence of the counting agents and the observers deputed by the Election Commission and as many as 305 postal ballots were declared invalid for these reasons – (i) Absence of signature and attestation by any Gazetted Officer on the voter’s declaration available on the envelope. (ii) Attestation of such a declaration by an officer, who was not competent to do so. (iii) Non-availability of the declaration. Apparently, the reasons were valid in view of sub-rule (4) of Rule 54-A, as highlighted above. Moreover, Mohd. Fahatullah Khan (DW6) has been emphatic in deposing that at the 15 Election Petition No.9/2009 relevant point of time, all the election agents were duly apprised of the reasons for rejecting 305 postal ballots. He has been cross-examined at length but nothing has turned out to establish that any postal ballot was discarded without any basis. He also denied the suggestion that initially, the number of postal ballots cast in favour of the petitioner was shown as zero. Thus, in absence of any objection raised by the counting agent, it was not possible to accept the allegation that 305 postal ballots were not even opened for counting. MANIPULATION OF RECORDS 19 Assertion made by petitioner Shriniwas Tiwari (PW1) that in the ninth round of counting, 1000 votes were added to the value of votes polled by the respondent no.2, did not find place in the complaints (Ex.P-9 and Ex.P-10). It also did not gather support from evidence of counting agent Ramashankar Mishra (PW6). Similarly, he did not prefer to substantiate the pleadings to the effect that in all 947 votes had remained unaccounted for. This apart, the complaint (Ex.P-9) made by the petitioner to the Chief Electoral Officer, Madhya Pradesh contained the grievance that 887 votes were excluded from counting whereas in the complaint (Ex.P-10) made to Election Commission of India, it was alleged that in all 887 missing votes were added to the account of BJ.candidate i.e. respondent no.2. However, the allegation concerning the missing votes has not been corroborated by Ramashankar Mishra. 16 Election Petition No.9/2009 20. Further, as admitted by Ramashankar Mishra, - (a) He had not preserved the plain paper whereon round-wise statement of the votes secured by the petitioner and rival candidates was recorded by him only. (b) He had not raised any objection as to counting of votes in the ninth round.
21. Petitioner Shriniwas Tiwari has clearly acknowledged that the information that in all 89335 voters had exercised their franchise is based on the newspaper report (Ex.P-12) published in Dainik Kirti Kranti. Horilal Choudhary (DW7), the then Deputy Director, Department of Public Relations, has candidly acknowledged the fact that he had forwarded the final data to the representatives of various newspapers along with the notification (Ex.P-18E). As revealed by Rajendra Tiwari (PW3), the Sub-Editor of ‘Satyaganga’, the Press Note (Ex.P-16), which corresponds to the notification (Ex.P-18E) as well as the earlier Press Note (Ex.P-15), was received by him on 10.12.2008. The news item (Ex.P-13) published in the newspaper ‘Dainik Kirti Kranti’ on 11.12.2008 is apparently based on the notification (Ex.P-18E). Sanjeev Mohan Gupta (DW2), the Editor of ‘Dainik Jagran’, Rewa, has also substantiated the fact that a news item (Ex.P-19) with the heading that “the Election Commission had requisitioned the original data relating to the results of the election”., was published in the newspaper on 11.12.2008 whereas Jitendra Mishra (PW4), the Managing Editor of ‘Vindhya Bharat’, has also acknowledged that news captioned 17 Election Petition No.9/2009 “During counting, how 887 votes were found reduced from Sirmour”. published in the newspaper (Ex.P-17) on 12.12.2008, was based on the analysis of data supplied by the Department of Public Relations on 10.12.2008 only. In the light of these facts, the assertion made by the petitioner that the final data could be issued on 12.12.2008, is not acceptable.
22. As explained by the Supreme Court in Laxmi Raj Shetty v. State of Tamil Nadu AIR 198.SC 127.and re-affirmed in S.A. Khan v. Ch. Bhajan Lal (1993) 3 SCC 15.and Ravinder Kumar Sharma v. State of Assam AIR 199.SC 3571.no presumption, under Section 81 of the Indian Evidence Act, is attached to genuineness of the newspaper reports. Accordingly, petitioner’s statement as to inconsistency in the data relating to the number of votes actually cast, does not assume any significance as it was primarily based on newspaper reports.
23. Counting of votes is regulated by Rule 56A, which may be extracted below - Rules 56A. Counting of votes.- (1) The ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinised. (2) The returning officer shall reject a ballot paper- (a) if it bears any mark or writing by which the elector can be identified, or (b) if it is a spurious ballot paper, or 18 Election Petition No.9/2009 (c) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established, or (d) if it bears a serial number, or is of design, different from the serial numbers or, as the case may be, design, of the ballot papers authorised for use at the particular polling station; or (e) if it does not bear both the mark and the signature which it should have borne under the provisions of sub-rule (1) of rule 38: Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (d) or clause (e) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect. (3) Before rejecting any ballot paper under sub-rule (2), the returning officer shall allow the counting agents present a reasonable opportunity to inspect the ballot paper but shall not allow them to handle it or any other ballot paper. (4) The returning officer shall record on every ballot paper which he rejects the letter 'R' and the rounds of rejection in abbreviated form either in his own hand or by means of a rubber stamp. (5) All ballot papers taken out of any one ballot box and rejected under this rule shall be made into a separate bundle. (6) Every ballot paper which is not rejected under this rule shall be counted as one valid vote: Provided that no cover containing tendered ballot papers shall be opened and no such ballot paper shall be counted. (7) After the counting of all ballot papers contained in all the ballot boxes used at a polling station has been completed,- 19 Election Petition No.9/2009 (a) the counting supervisor shall fill in and sign Part II- Result of Counting in 4[Form 16 which shall also be signed by the returning officer; and (b) the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars.
24. Returning Officer Mohd. Fahatulla Khan (DW6), while making reference to return of election in Form 21-E (Ex.P-3), has pointed out that total number of votes polled including 365 postal ballots was 89697 and apparently, there was no discrepancy between the data as reflected in the return and the final result-sheet (Ex.P-2).
25. As concluded already, the copies of the result-sheet (Ex.P-14-A) and (Ex.P-18-C) said to have been made available to him by Rajendra Tiwari (PW3) and Sanjeev Mohan Gupta (DW2) are false documents.
26. Mohd. Fahatulla Khan (DW6) has vividly described the entire process of counting of votes. As per his statement, - (a) In the counting area, 14 counting tables excluding his table were placed and the counting was done in as many as 12 rounds. (b) After completion of each round of counting, the result was announced on the mike only after its verification by the counting supervisor on the basis of the record available in Part II of Form 17-C and thereafter, 20 Election Petition No.9/2009 satisfaction certificate was obtained from each one of the counting agents. (c) None of the counting agents had raised any objection as to counting process in any round of counting. (d) The last round of counting was concluded on 8.12.2008 between 4.30 to 4.45 PM and the observer Shri Pramod Saxena, while expressing satisfaction regarding veracity of the counting process, had issued a certificate and had authorized the Returning Officer to declare the result. (e) On 8.12.2008 at about 5.20 P.M., the election result was declared and respondent no.1 was declared elected by a margin of 309 votes.
27. While refuting the charge that she was instrumental in tampering with the result of the election under political influence, Dr. M. Geeta (DW5), the then Collector and District Election Officer, has stated that the procedure prescribed for counting of votes and guidelines laid by the Election Commission of India in this regard were scrupulously followed. According to her, after issuance of verification report by the observers deputed by the Commission to supervise the counting process, no altercation in the number of votes obtained by a particular candidate was possible.
28. Evidence of Dr. M. Geeta (DW5) and Mohd. Fahatulla Khan (DW6) reflected a completely dispassionate attitude 21 Election Petition No.9/2009 towards the counting process. The relevant rules provide an elaborate procedure for counting of votes and it contains so many effective safeguards against trickery, mistakes and fraud in counting. Indisputably, petitioner’s counting agent Ramashankar Mishra, who had not only recorded the figures of round-wise counting but had also appended his signature on Part-II of Form 17-C, did not make any demand for re-totaling or re-counting of votes.
29. For these reasons, it is held that neither there was any manipulation in the records pertaining to the election not any vote was improperly included in the account of respondent no.1. All the aforesaid issues deserve to be answered in favour of respondent no.1. ISSUE No.7 30. Learned counsel has contended that the instances highlighted by the petitioner are sufficient to justify an order of recount/re-inspection of the votes particularly in view of the fact that the margin of defeat was confined to 309 votes. For this, he has made reference to the following observations made by the Apex Court in Chanda Singh v. Shiv Ram Varma AIR 197.SC 40.- “If the lead is relatively little and/or other legal infirmities or factual flaws hover around recount is proper, not otherwise. In short, where the difference is microscopic, the stage is set for a recount given some plus point of clear suspicion or legal lacuna militating against the regularity, 22 Election Petition No.9/2009 accuracy, impartiality or objectivity bearing on the original counting. Of course, even if the difference be more than microscopic, if there is a serious flaw or travesty of the rules or gross interference a liberal repeat or recount exercise, to check on possible mistake is a fair exercise of power”. However, as explained further – “Rule 63 of the Conduct of Elections Rules 1961 obligates the candidate to state 'the grounds on which he demands such recount'. It is plain that a mere doubt or small lead or unspecified blemish in the manner of the counting falls short of the needs of the said rule. Under the rule the demand for recount may be rejected if it appears to the Returning Officer to be frivolous or unreasonable. What is not reasonably grounded or seriously supported is unreasonable or frivolous. Suspicions of possible mischief in the process or likely errors in counting always linger in the mind of the defeated candidate when he is shocked by an unexpected result”.. … “On all hands, it is not agreed that the importance of the secrecy of the ballot must not be lost sight of, material facts to back the prayer for inspection must be bona fide, clear and cogent and must be supported by good evidence. We would only like to stress that in the whole process the secrecy is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting is made out by definite factual averments credible probative material and good faith in the very prayer”..
31. Adverting to the facts of the instant case, it may be observed that even if it is assumed that all the 305 postal ballots, not included in the counting, were cast in favour of the 23 Election Petition No.9/2009 petitioner, the result of election would remain unaffected as the margin of win was that of 309 votes.
32. Besides this, none of the respondents has come forward to file recrimination. Needless to say that the right to file a recrimination accrues to the returned candidate or any other party to the petition the moment an election petition is presented containing a claim for a further declaration that the petitioner himself or any other candidate has been duly elected (Inamati Mallappa Basappa v. Desai Basavaraj Ayyappa AIR 195.SC 69.referred to).
33. In T.A. Ahammed Kabeer v. A.A. Azez (2003) 5 SCC 650.a two-Judge Bench, speaking through R.C. Lahoti, J.(as His Lordship then was), while analyzing the majority view on the point of recount, as taken by a Constitution Bench in Jabar Singh v. Genda Lal AIR 196.SC 1200.proceeded to explain and elucidate the legal position in the following terms - (1) In an election petition wherein the limited relief sought for is the declaration that the election of the returned candidate is void on the ground under Section 100(1)(d)(iii) of the Act, the scope of enquiry shall remain confined to two questions: (a) finding out any votes having been improperly cast in favour of the returned candidate, and (b) any votes having been improperly refused or rejected in regard to any other candidate. In such a case an enquiry cannot be held into and the election petition decided on the finding (a) that any votes have been improperly cast in favour of a candidate other than the returned candidate, or (b) any votes were improperly 24 Election Petition No.9/2009 refused or rejected in regard to the returned candidate. (2) A recrimination by the returned candidate or any other party can be filed under Section 97(1) in a case where in an election petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected. (3) For the purpose of enabling an enquiry that any votes have been improperly cast in favour of any candidate other than the returned candidate or any votes have been improperly refused or rejected in regard to the returned candidate the Election Court shall acquire jurisdiction to do so only on two conditions being satisfied: (i) the election petition seeks a declaration that any candidate other than the returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void; and (ii) a recrimination petition under Section 97(1) is filed. (4) A recrimination petition must satisfy the same requirements as that of an election petition in the matter of pleadings, signing and verification as an election petition is required to fulfil within the meaning of Section 83 of the Act and must be accompanied by the security or the further security referred to in Sections 117 and 118 of the Act. (5) The bar on enquiry enacted by Section 97 read with Section 100(1)(d)(iii) of the Act is attracted when the validity of the votes is to be gone into and adjudged or in other words the question of improper reception, refusal or rejection of any vote or reception of any vote which is void is to be gone into. The bar is not attracted to a case where it is merely a question of correct counting of the votes without entering into adjudication as to propriety, impropriety or validity of acceptance, rejection or reception of any vote. In other words, where on a re- count the Election Judge finds the result of re-count to be different from the one arrived at by the 25 Election Petition No.9/2009 Returning Officer or when the Election Judge finds that there was an error of counting the bar is not attracted because the court in a pure and simple counting carried out by it or under its directions is not adjudicating upon any issue as to improper reception, refusal or rejection of any vote or the reception of any vote which is void but is performing mechanical process of counting or re-counting by placing the vote at the place where it ought to have been placed. A case of error in counting would fall within the purview of sub-clause (iv), and not sub- clause (iii) of clause (d) of sub-section (1) of Section 100 of the Act”. [Emphasis supplied].
34. In an election trial, it is not permissible to Court to permit a party to seek a roving inquiry and therefore, a party must plead material facts and adduce evidence to substantiate the same so that the Court may proceed to adjudicate upon that issue (See. Kalyan Singh Chouhan v. C.P. Joshi (2011) 11 SCC 786). The petitioner must not only give the figures of the votes which, according to him, were improperly accepted or rejected, but the basis of the allegation must be disclosed, the serial number of ballot papers must be set out, names of the counting agent, number of counting tables, names of the counting supervisor, round number, details of objection, if any, made to the counting staff, details of the notes, if any, kept by the counting agent and the basis of information must be disclosed (N. Narayanan v. S. Semmalai AIR 198.SC 20.relied on).
35. However, in the present case, there is not even an averment that the petitioner’s counting agent has challenged 26 Election Petition No.9/2009 correctness of contents of Part II of Form 17-C before the Returning Officer. Further, upon appreciation of the evidence led by the petitioner, allegations made by him as regards irregularities and illegalities during the counting process of votes have been found to be totally baseless and frivolous. In such a situation, even a prima facie case for ordering recount of votes is not made out.
36. Turning to the prayer of re-inspection of votes, it may be pointed out that in paragraphs 15 to 17 of the petition wherein averments pertaining to so-called improper rejection of 305 postal ballot papers have been made, material facts such as serial numbers of the postal ballot papers not opened and the precise objection with regard to each of such ballot papers, if any, raised by the counting agent, have not been stated. In absence of such an information, which the petitioner alone should have known or should be deemed to know, any inspection of the ballot paper would amount to a roving and fishing inquiry. For this, reference may be made to the guidelines laid down by a Constitution Bench in Ram Sewak Yadav v. Hussain Kamil Kidwai AIR 196.SC 1249.Accordingly, - “an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not substantiated by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of 27 Election Petition No.9/2009 justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection”..
37. In Bhabhi v. Sheo Govind AIR 197.SC 2117.it was laid down that before the Court can order inspection of ballot papers, in an election petition, the following conditions are imperative - (1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts : (3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount; (4) That the court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (5) That the discretion conferred on the Court should not be exercised in such away so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection maybe ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials. 28 Election Petition No.9/2009 If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper.
38. Again in Fulena Singh v. Vijay Kumar Sinha AIR 200.SC 2247.it has been re-affirmed that inspection of election papers mentioned in detail in Rule 93 (a) to (e) is also not a matter of course. Inspection of those papers cannot be ordered and parties cannot be permitted to inspect the same for the purposes of making a roving enquiry in order to fish out the materials and to derive support to one's own case. A clear case is, therefore, required to be made out for ordering the production and inspection of election papers by the parties.
39. To sum up, an order either for inspection or re-count of the votes affects the secrecy of ballot, which is, undoubtedly, sacrosanct and inviolable except where strong prima facie case is made out. (Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao AIR 201.SC 2.referred to) 40. Taking into consideration the factual aspects of the matter as brought on record and the well settled position of law on the subject, as discussed above, the petitioner is not entitled to get the votes decoded or recounted. Accordingly, issue no.7 is answered in the negative. ISSUE Nos.5 an”
29. Election Petition No.9/2009 41. In view of the adverse findings of issue nos.1 to 4 and 7, no interference is called for with the result of the election in question. The issues are, therefore, decided in favour of the respondent no.1. ISSUE No.10 42. For the foregoing reasons, none of the grounds questioning the validity of the election stands established and therefore, the petition, being devoid of merit, deserves to be dismissed.
43. Accordingly, the election petition is hereby dismissed. There shall be no order as to costs.
44. A copy of this judgment be forwarded to the Election Commission as well as to the Speaker of the State Legislature. Petition dismissed. (R.C.MISHRA) JUDGE 3 5.2013