A.M. Saikia, J.
1. Vanquished in the battle of ballots by a narrow margin of 196 votes, the election petitioner (hereinafter called as 'the petitioner') has launched a legal attack against the election of the respondent No. 1 by filing this election petition basically on two fronts. The first is the improper reception and rejection of the ballot papers and the second is the corrupt practice of booth capturing by the election agent of the respondent No. 1. Accordingly the petitioner has prayed for scrutiny and recounting of all the 2149 number rejected ballot papers and all the ballot papers counted in favour of respondent No. 1 and thereafter on the basis of such scrutiny and recounting, the petitioner has sought for a declaration that the election of the respondent No. 1 from No. 126 Sadiya Legislative Assembly Constituency (for Short Sadiya, 'LAC') is void under the mandate of Section 98(b) read with Section 100(1)(b) and Section 100(1)(d)(iii) and (iv) of the Representation of the People Act, 1951 (for short, 'the Act').
2. The factual matrix of the case, as has been emerged from the pleadings of the rival parties, is that the petitioner contested the last Genera] Election to the Assam Legislative Assembly held in the month of May, 2001 from Sadiya LAC as a candidate of the Indian National Congress (I) when the respondent No. 1 contested as a candidate of the Asom Gana Parishad (for short, A.G.P.). Respondent Nos. 2, 3 and 4 were also in the hustings as Independent candidates. The polling for the Saidya LAC was held on 10.5.2001 as notified by the Election Commission of India in as many as 126 Polling Stations while fresh poll in respect of some Poling Stations was held on 12.5.2001. Counting of the ballot papers were commenced on 13.5.2001 around 8.00 a.m. in two Halls at the office premises of the Sub-Divisional Officer (Civil) Sadiya at Sadiya town. In Hall No. 1,12 Tables bearing Table Nos. 1 to 12 were placed while there were 8 Tables bearing Table Nos. 13 to 20 in Hall No. 2. Counting was completed at about 6/6.30 p.m. and the result was formally declared at about 2/2-30 a.m. on 14.5.2001. The petitioner secured 35,552 votes while the respondent No. 1 secured 35,748 votes. The petitioner thus lost to the respondent No. 1 by a margin of 196 votes.
3. In paragraph 5 of the election petition, it is alleged inter alia that on the day of poll i.e. on 10.5.2001 when the polling was being held peacefully at Polling Station No. 109, Hahkhati L.P. School, at about 2.15 p.m., Md. Ashraful Hoque Choudhury, the election agent of the respondent No. 1 along with four armed persons came to the said polling station and chased away all the voters present at the polling premises who were waiting to cast their votes. After chasing away the voters, the said election agent entered the room and snatched away the ballot papers from the Presiding Officer (hereinafter called as 'the P.O.') and started casting seals on the 'Elephant' symbol appeared thereon. After forcing the official to do the formalities, those ballot papers were inserted inside the ballot boxes.
4. It is further alleged in the election petition that anomalies and irregularities were writ large during the counting process by way of improper reception of votes in favour of the respondent No. 1 though those votes were cast in favour of the petitioner and rejection of valid votes cast in favour of the petitioner. The specific allegations, as have been projected in paras 11,13,16 and 17 of the election petition relating to anomalies on Table Nos. 2,4, 6 and 9 in Hall No. 1, Table no. 5 in Hall No.2 and Table Nos. 4 and 8 in Hall No. 2 at the time of first, second and eight round of counting respectively, may be recapitulated as under :
(A) During the first round of counting in Hall No. 1, the following happened
(i) 36 ballot papers counted in favour of the petitioner were rejected by the Returning Officer (hereinafter referred to as the 'R.O.') at the instance of respondent No. 1 on the ground of indistinct marks of votes or double marking on the symbol 'Hand' in respect of Polling Station No. 2 on Table No. 2.
(ii) 22 ballot papers counted in favour of the petitioner were rejected by the R.O. at the instance of the respondent No. 1 on the ground of double marking on the symbol 'Hand' in respect of Polling Station No.4 on Table No. 4.
(iii) 17 ballot papers cast in favour of the petitioner were rejected by the Assistant Returning Officer (for short, 'the A.R.O.) on the ground of indistinct marks of votes or double marking on the symbol 'Hand' on Table No. 6.
(iv) (a) 20 ballot papers cast in favour of the petitioner were rejected on the plea of double marking on the symbol 'Hand' by the R.O. at the instance of respondent No. 1 in respect of Polling Station No.9 on Table No. 9.
(b) Initially majority of bundles of ballot papers each bundle containing 50 valid votes were placed by Sri Bipul Barua, Counting Assistant in favour of respondent No. 1 and on protest one of those bundles was brought back and placed in the compartment of the petitioner but thereafter also at least 4 bundles containing 200 valid votes cast in favour of the petitioner remained at the compartment meant for respondent No. 1.
In this process, in the first round of counting, the petitioner lost 295 valid votes which were cast in his favour and the respondent No. 1 gained 200 votes of the petitioner illegally.
(B) The second round of counting in Hall No.2
Witnessed as follows :
(v) (a) 24 ballot papers whereon votes were cast in favour of the petitioner were rejected by the R.O. at the instance of Md. Ashraful Hoque Choudhury, election agent of respondent No. 1 on the plea of indistinct voting marks on the ballot papers in respect of Polling Station No.82 on Table No.5.
(b) At least 4 bundles of ballot papers containing 50 ballots each whereon votes were cast in favour of the petitioner were surreptitiously placed by the counting assistants in the compartment meant for respondent No.2 (Independent candidate).
Therefore, in the second round, the petitioner was deprived of 224 valid votes (24+200) and the respondent No. 1 received 200 votes of the petitioner illegally.
(C) In the eighth round of counting, the below mentioned incidents in the Hall No. 2 occurred :
(vi) (a) 26 ballot papers counted in favour of the petitioner were separated and rejected on the plea of double marking of votes at the instance of the R.O. in respect of Polling Station No. 108 on Table No.4,
(b) 2 bundles of ballot papers containing 50 each whereon votes were cast in favour of the petitioner were surreptitiously placed in the compartment of respondent No. 1.
(vii) (a) 72 excess ballot papers which did not tally with the serial Nos. allotted to the Poling Station No. 106, were found on Table No. 8 and those excess ballots were counted in favour of the respondent No. 1.
(b) 200 ballot papers containing serial 095828 onwards did not contain either the distinguishing stamp marks or the P.O.'s signature but those were counted in favour of the respondent No. 1 thereby the respondent No. 1 gained 272 (72+200) votes illegally.
As a result the petitioner, in the eighth round, lost 126 (26+100) valid votes and respondent No. 1 received 100 votes illegally.
5. It has been pleaded by the petitioner that due to the aforesaid anomalies and irregularities in reception and rejection of votes, the petitioner was made to lose 645 (295+224+126) numbers of valid votes cast in his favour. Therefore, at the end of the counting, at about 8 p.m. on 13.5.2001, the petitioner submitted an application to the R.O. praying for recounting of all the ballot papers. But without passing any order thereon, the R.O. declared the result of the election in the early morning of 14.5.2001. Pertinent it to mention herein that all those allegations noticed in the preceding paragraph have been averred on the basis of the reports of the counting agents of the petitioner posted against the respective Tables.
6. This election petition has been contested by the respondent No. 1 by filing written statement. In the said written statement, the respondent No. 1 categorically denied and refuted all the allegations made by the petitioner stating that no anomalies or irregularities of any kind had ever occurred during the counting of the ballot papers on the respective Tables as alleged. His case is that the entire counting process was conducted smoothly, properly and without any sort of anomalies or irregularities whatsoever. There were neither any improper reception of votes in favour of the respondent No. 1 nor any improper rejection of valid votes cast in favour of the petitioner. Denying the eighth round of counting of ballot papers, the respondent No. 1 specifically averred that the entire counting process ended with seventh round.
7. Taking into consideration the allegations and counter allegations made in the rival pleadings of the parties, this Court by order dated 5.2.2002 framed as many as 13 issues for trial which may be extracted as under:
1. Whether the Election Petition is maintainable in law as well as on facts.
2. Whether there is any cause of action for the election petition.
3. Whether the election petition has been presented in accordance with and as required by the provisions of Representation of People Act, 1951, the Conduct of Election Rules 1961 and the Gauhati High Court Rules.
4. Whether the Election Petition has been filed in compliance of the mandatory provisions of Section 81 and 83 of the Representation of People Act, 1951 and Rule 94A of the Conduct of Election Rules 1961 read with Rule 1 of Chapter VIII A of the Rules framed by the Gauhati High Court under the Representation of People Act, 1951, if not whether the Election Petition is liable to be dismissed for alleged non-compliance of those various above mentioned provisions.
5. Whether the result of the Election of No. 126 Saidya LAC so far it concerns the Returning candidate was materially affected by the commission of alleged corrupt practice and alleged improper reception of void votes in favour of the Returned candidate and alleged refusal and rejection of valid votes cast in favour of the Election Petitioner.
6. Whether there was commission of the corrupt practise of 'Booth capturing' on 10.5.2001 at Poling Station No. 109 Hahkhati L.P. School by the election agent of the respondent No. 1 as mentioned in paragraph 5 and 6 of the election petition and if so, whether the same has vitiated the election of respondent No. 1.
7. Whether there was any improper reception of void votes and other votes in favour of respondent No. 1 in respect of counting of votes pertaining to polling Station Nos. 9, 82, 106 and 108 and if so, whether the same has materially affected the result of the election so far as it concerns respondent No. 1, the returned candidate.
8. Whether there was any improper rejection of valid votes of Election Petitioner in respect of counting of votes pertaining to Polling Station Nos. 2, 4, 9, 82 and 108 and if so whether the same has materially affected the result of the election so far as it concerns respondent No, 1 the returned candidate.
9. Whether the ballot papers pertaining to Polling Station Nos. 2,4, 9, 82 and 108 of No. 126 Saidya LAC are liable to be recounted and rescrutinised.
10. Whether the Election of respondent No. 1 of No. 126 Saidya LAC is liable to be declared void?
11. Whether the election Petitioner is entitled to be declared elected from No. 126 Saidya LAC on the basis of the result of recount of votes of Poling Station Nos.2, 4, 9, 82, 106 and 108.
12. Whether the Petitioner is entitled the relief claimed in the election petition.
13. To what relief's are the parties entitled to.
8. During the trail the petitioner adduced as many as 15 witnesses while the respondent No. 1 examined 16 witnesses. As regards the documentary evidence, the petitioner has exhibited 3 documents namely: the final result sheet (Exht,P/1), and two appointment orders of polling agents in Form No. 10 of Sri Om Bahadur Chetry and Sri Nat Bahadur Chetry polling agents of the petitioner in polling station No. 109 (Exht.P/C and P/D respectively) whereas 16 documents have been tendered in evidence on behalf of the respondent No. 1. As regards the documents exhibited by respondent No. 1, following documents have been brought on record - Exhts. R/1 to R/6 and R/10 to R.12 relate to the appointment orders of the counting agents of the respondent No. 1 when Exht. R/7 and R/8 are the appointment orders of the polling agents of the respondent No. 1. The complaint dated 10.5.2001 filed by Md. Ashraful Huque Choudhury, the election agent of respondent No. 1 has been exhibited as Exbt. R/9. Register for issue of identity cards to the counting agents of the respective candidates have been marked as Exht. R/13, Exht. 14 to Exht-16 are the P.O's Diary of Polling Station Nos. 109 and 106 and General Diary Entry of Dhola Police Station respectively.
9. The petitioner and the respondent No. 1 have examined themselves as P.W. 1 and R.W.-7. The R.O., Sri Mukul Chandra Gogoi has been brought to the witness box by both the petitioner and respondent No. 1 to depose on their behalf as P.W. 3 and R.W. 14 respectively. That apart, a host of counting agents and polling agents of both the rival parties assigned to the respective Tables in respect of which anomalies irregularities have been alleged and refuted, have also been examined by both the parties. Sri Bhaskar Jyoti Manta, A.R.O. has been examined as P.W. 5. P.W. 2, Sri Bikash Moran and R.W. 10, Md. Ashraful Haque Choudhury, both are the election agents of the petitioner and the respondent No. 1 respectively.
10. Heard Mr. A.M. Mazumdar, learned senior counsel assisted by Mr. S.S. Dey, learned Counsel for the petitioner as well as Mr. A.K. Bhattacharyya, learned senior counsel assisted by Mr. K. Agarwalla learned Counsel appearing for the respondent No. 1.
11. On meticulous inspection of the material evidences on record both oral and documentary and upon hearing the learned Counsel for the parties, this Court does now proceed to delve and decide all those issues framed hereinabove as under.
12. In so far as Issue Nos. 1, 2, 3 and 4 are concerned, the parties have not pressed those issues at the time of arguments and as such on consideration of the fact and circumstances of the case, those issues are answered in favour of the petitioner.
13. As regards the Issue Nos. 5 and 6, the Court has been relieved from the burden of deliberating upon those issues as the same has not been pressed. The learned Counsel for the petitioner has categorically submitted that they have instruction not to press the ground of corrupt practice by booth capturing and would like to concentrate only in Issue Nos. 7, 8 and 9 which precisely relate to the crux of the lis.
14. Since the Issue Nos. 7, 8 and 9 are inextricably inter-related centering around those allegations of anomalies and irregularities in the counting process, those are taken up together for the purpose of elaborate discussion and consideration to arrive at a just decision in this election dispute.
15. In order to have an effective and proper deliberation on the allegations of anomalies/irregularities in the counting process on appreciation of oral evidence, the allegations recorded in seriatim in para 4 mentioned hereinabove may be referred to.
Regarding the allegation No. A(i) in para-4 hereinabove, P.W, 2, Sri Bikash Moran, election agent of the petitioner, deposed in his evidence that counting took place in the office of the Civil S.D.O., Sadiya in the halls namely Hall No. 1 and Hall No.2. In Hall No. 1, there were 12 Tables which were placed within a fence placed around keeping a corridor for about 2 feet from the wall. As there were 5 candidates and many counting agents, the space for their accommodation was too small and congested. In each Hall, there were three persons mainly officials. All the counting agents were standing outside the fence within the Halls. There were 8 Tables in Hall No.2 having same arrangements but the Hall was a bit smaller in comparison to Hall No. 1. Besides the officials mentioned above, there was an A.R.O. The R.O. and Observer also visited the Halls now and then. As per his statement, he was present during counting which was started at about 8 a.m. During the counting process, anomalies were reported by the agents. In Tale No.2, Sri Rajen Moran was appointed as counting agent who reported that initially 350 votes ere counted in favour of the petitioner out of which 36 ballot, papers were separated and rejected on the grounds of double marking and indistinct marks. They objected it to the R.O. verbally but no action was taken. In cross, this witness stated that though he was present in the counting Halls all the time, during the time when he was in Hall No. 1 he did not know personally what happened in Hall No.2 even as he was reported by his counting agents as what happened in Hall No.2. Similarly, while he was in Hall No.2 he did not know what happened in Hall No. 1 though he was reported by counting agents about the happening in the Hall No. 1. It was Sri Rajen Moran, counting agent of Table No. 2 who reported him verbally about those anomalies. He did not ask Rajen Moran to give a written complaint in respect of the said allegation. The counting agent and himself objected to the R.O. verbally. Be it noted herein that Sri Rajen Moran, the counting agent of the petitioner, being a vital witness who reported to P.W. 2 about the rejection of 36 votes as already noticed, was not produced by the petitioner for examination.
16. As regards the alleged rejection of 22 ballot papers, as noticed in serial No. A(ii) of para 4 above, counted in favour of the petitioner, by the R.O. at the instance of respondent No. 1, P.W. 11, Sri Jiban Sonowal, the counting agent of the petitioner, deposed that on the day of counting he was assigned to Table No. 4 in Hall No. 1. While counting was in progress, 22 votes were found in double marking which were against the symbol of 'Hand' of Congress. All those votes were rejected by the authority. Despite his complaint and protest, no action was taken by the authority. In cross, he stated that he did not file anything in writing against such double marking of votes. He verbally said about such double marking to the petitioner who was present roaming about, P.W. 2 Shri Bikash Moran stated that at Table No. 4 in Hall No. 1 counting agent was P.W. 11 who reported that about 22 ballot papers were rejected on the ground of double marking and then P.W, 2 complained about the same to the R.O. but no action was taken. He did not ask P.W. 11 to give in writing but he complained about the incident to the R.O. verbally.
17. Insofar as allegation pertaining to rejection of 17 ballot papers cast in favour of the petitioner, by A.R.O. on the ground of indistinct marks of votes or double marking symbol in 'Hand' on Table No. 6 is concerned as stated in the allegation No. A(iii) of para 4 of the judgment, P.W. 12 Kamal Dao, the counting agent of the petitioner, stated in his evidence that on the day of counting on 13.5.2001 he was assigned duties at Table No. 6 to Hall No. 1. During the counting, 17 votes cast in favour of Congress were rejected by the counting assistant namely one Mr. Pathak. When he protested orally regarding such rejection, the said officer did not respond. Then he informed the matter to the election agent and in the evening he reported the same to the petitioner. In cross, his deposition is that when he reported about such rejection of the votes to the election agent and petitioner, they asked him to give in writing but he could not give in writing as he did not have time. He did not know whether the election agent reported the aforesaid fact in writing to the petitioner. He did not request the counting agents of other candidates to lodge complaint to the R.O, about such rejection of votes. P.W. 2, the election agent of the petitioner, stated that at Table No. 6, counting agent was P.W. 12 who reported to him that 17 ballot papers were rejected which were cast in their favour. Those were rejected by the supervisors and counting assistants. He objected to A.R.O. but no action was taken. He did not ask P.W. 12 to give him a written complaint. P.W. 2 verbally made a complaint about such incident also to the R.O. From the pleadings of the election petition i.e. paragraph 11, it appears that P.W. 12 specifically stated that it was the A.R.O. who rejected all those 17 ballot papers and asked Shri Brajeswar Pathak, the counting supervisor of Table No. 6 to place those 17 rejected ballot papers along with 3 other rejected ballot papers totalling number 20 aside. But interestingly it is to be noted that though it was alleged that the rejection was done by A.R.O., it has neither been proved who was the said A.R.O. nor were the other A.R.Os except Bhaskar Jyoti Manta, P.W. 5, examined in support of such allegation. Moreso, Sri Brajeswar Pathak, the counting supervisor, was also not examined by the petitioner.
18. Now coming to the allegation No. A(iv) (a) and (b) as already noticed above in para 4, it is seen from the evidence of P.W. 13, Tarini Konwar, the counting agent of the petitioner, that while he was working at Table No. 9 in Hall No. 1, it was noticed that 20 votes which were double marked against the symbol 'Hand' were shown to be rejected. The said rejection was effected by the counting incharge of Table No. 9. The said Incharge also informed P.W. 13 that the said rejection was not final and final rejection order would be passed after proper inquiry. Besides that anomalies, 4(four) bundles of ballot papers each containing 50 votes cast in favour of Congress candidate were also placed in the box of A.G.P. candidate. Resultantly by such placement of four bundles, the Congress candidate lost 200 votes. P.W. 13 along with election agent made a protest before the official one Mr. Manta acting as Asstt. Election Officer relating to such placement of 4(four) bundles of ballot papers in the A.G.P. box and the said officer in turn informed that he could not contact the R.O. Then they went to the Observer who was present there but they were refused entry to the said Observer. In his cross examination, this witness stated that they had not submitted any written complaint to the officials as regards the rejection of 20 ballot papers and placement of 4 bundles of ballot papers against the A.G.P. Even the officials did give them a chance to give written complaint. His evidence was that he did not know whether the petitioner and the election agent lodged any written complaint as regards the aforesaid anomalies. In paragraphs 11 of the election petition , it is stated that one Sri Bipul Barua who was acting as one of the counting assistants at Table No. 9 of Hall No. 1 started counting of ballot papers keeping them on his thigh instead of counting those on the table top and on that Table 20 ballot papers cast in favour of the petitioner were rejected. Further P.W. 13 observed that at Table No. 9, the said counting assistant Shri Bipul Barua was making bundles of 50 ballot papers each and those bundles made by Sri Bipul Barua were placed at the compartment of respondent No. 1. Then he objected to the same and demanded upon the counting supervisor one Shri Robin Ignatius Lakra to check up those bundles. Be it mentioned that amazingly for the reason best known to the petitioner, he refrained from examining Sri Bipul Barua, the counting assistant and Sri Robin Ignatius Lakra, counting supervisor, being the material witnesses.
19. In order to substantiate the averment made in paragraph 13 of the election petition as regards the rejection of 24 ballot papers, whereon votes were cast in favour of the petitioner, by the R.O. at the instance of the election agent of respondent No. 1 as well as surreptitious placement of at least 4(four) bundles of ballot papers containing 50 each whereon votes were cast in favour of the petitioner, by the counting assistants in the compartment meant for respondent No. 2, as already indicted above as allegation No. B(v)(a) and (b) in para 4, the petitioner examined Sri Apurba Buragohain, his counting agent as P.W. 14 who deposed that while he was working at Table No, 5 in Hall No. 2 in respect of Polling Station No. 82, during the second round of counting, he saw 24 votes out of 394 cast in favour of the Congress candidate were declared to be rejected on the ground of indistinct marks though they were distinct as he saw. Thereafter he also saw that 4(four) bundles of ballot papers each containing 50 votes cast in favour of Congress candidate were placed in the box of A.G.P. candidate. Seeing such irregularities, immediately he protested before the counting assistant as well as officials who did not attend to such protest for which he had to report the matter to the election agent. Thereafter election agent reported the matter to the R.O. who assured of taking some action in this regard. In cross, this witness deposed that on those 24 ballot papers there were smearing of ink and those were kept separately on Table No. 5 for sending the same to the R.O. for his final scrutiny. The R.O., having scrutinised the ballot papers, found those to be invalid and rejected the same. He informed the aforesaid anomalies to P.W. 2, election agent, who told him that he already informed the aforesaid anomalies to the petitioner. He did not lodge any complaint to any officials in respect of the aforesaid anomalies. P.W. 2 in his evidence stated that P.W. 14 reported him that in Polling Station Nos. 82, 24 votes wore rejected on the ground of double marking and indistinct marks and four bundles of votes cast in favour of Congress were taken forcibly and placed in the box of respondent No. 1. But in the pleadings in paragraph 13 of the election petition, the petitioner categorically stated that four bundles of ballot papers containing 50 each, on which votes were cast in favour of the petitioner, were placed surreptitiously in the compartment meant for respondent No. 2 by the counting assistant. But surprisingly, the final result sheet (Exht. P/1) manifestly show that the respondent No. 2 did not receive a single vote in the said Polling Station.
20. Insofar as the allegation, as already mentioned in the allegation No. C(viXa) and (b) in para 4 of this judgment, is concerned, the petitioner has pleaded in the election petition that in the eighth round of counting in respect of Polling Station No. 108, while Arup Borgohain, P.W. No. 15 was working as his counting at Table No. 8 of Hall No. 2, 26 ballot papers shown to be polled in favour of the petitioner were separated at the instance of the R.O. on the plea of double marking of votes on such ballot papers and all those ballot papers were treated as rejected. Besides, while arranging ballot papers of bundles of 50 each, at least 2 bundles containing 50 ballot papers each, on which votes were cast in favour of the petitioner, were surreptitiously put in the compartment of respondent No. 1, To support this allegation, P.W. 15 deposed that when the ballot box of Poling Station No. 108 was opened, 26 votes cast in favour of the Congress candidate were rejected by the authorities on the ground of double marking. Besides, two bundles of ballot papers where votes were cast in favour of the Congress candidate were placed in the compartment of A.G.P. candidate. He informed regarding those anomalies to the election agent who in turn reported the matter to the R.O. When they approached to lodge the complaint, they were not allowed to enter into the room of the R.O. In cross, the said witness stated that he submitted written complaint under his own signature to the election agent of the petitioner but he was informed by the election agent, P.W. 2 that they were not allowed to enter into the room of the R.O. for which he could not submit the said complaint. This witness did not produce the said written complaint before this Court.
21. With regard to the allegation of 72 excess ballot papers and 200 ballot papers without containing either the distinct stamp marks or the P.O.'s signature therein, counted in favour of the returned candidate as shown in the allegation No. C(viiXa) and (b) in para 4 above, the counting agents Sri Ganga Bahadur Chetry and Sri Bireswar Chowrak were examined as P.W. 6 and P.W. 10 respectively. P.W. 6 deposed that while he was discharging his duties as counting agent in Table No. 8 Hall No. 2, Sri Bireswar Chowrak, P.W. 10 another counting agent of Congress-I candidate, made some complaint to the effect that when 729 ballot papers were in fact issued to the Polling Station No. 106 and out of those ballot papers, votes were cast only on 523 ballot papers. But on the opening of the ballot box, a total number of 595 ballot papers were found with an excess of 72 ballot papers. In cross, the said witness stated that counting agent complained about the said incident verbally. He also referred the matter to the supervisor verbally and the supervisor also verbally reported the matter to the higher authority. He did not suggest the counting agent to raise objection in writing. He also did not remember the number of rounds in counting in which the complaint was raised by the counting agent of Table No. 8 of Hall No. 2. P.W. 10, the other counting agent deposed that during the counting of ballot papers relating to Polling Station No, 106 in Hall No. 2 on Table No. 8, there were some anomalies. 729 ballot papers were issued by the R.O. As per the report of the P.O., 206 ballot papers were returned unused and accordingly, 523 ballot papers were supposed to be inside the ballot box. But 595 ballot papers were found in the said ballot box. Against the said 72 excess ballot papers they made a complaint before the counting assistants and counting supervisors. According to him, he did not remember the serial No. of those 72 ballot papers that did not tally with the ballot papers issued by the P.O. As the complaint made by him was not responded by that officer, he reported the matter to the R.O. The election agent also made complaint to the R.O. who did not take any action. He also deposed that, that part, 3/4 bundles of ballot papers case in favour of Congress-I were put in the box of A.G.P. It is seen from the material available on record that the petitioner did not examine the P.O. of the Polling Station No. 106. But on the other hand, the respondent No. 1 adduced Sri Prabhat Sonowal, P.O. of the said Polling Station as R.W. 15 who in his deposition specifically mentioned that in total 730 number of ballot papers were issued in respect of Polling Station No. 106 and total number of votes polled in the said Polling Station were 604. During his deposition he relied on the Exht.R/15 which was the P.O's diary. But according to him, result sheet showed total number of vote polled as 595. He asserted that the total number of ballot papers shown in his diary was correct and he did not know anything about such discrepancies. It appears from the deposition of the P.O., R.W.15, the final result sheet (Exht. P/1) and the P.O's diary (Exht.R/15) that though there appears to be anomalies of 9 ballot papers being found short in the ballot box against the total number of votes polled, the fact remains that there were no 72 excess ballot papers as claimed. As per final result sheet (Exht. P/l), 595 total votes were shown to be polled when as per P.O.'s diary (Exht. R/15) 604 ballot papers were issued for the voting in respect of the concerned Polling Station. That being so, there is no scope for having excess 72 ballot papers as alleged. So far as the allegation of counting of 200 ballot papers which did not contain either distinguishing stamp marks or the P.O.; signature, in favour of the return candidate is concerned, the same could not be substantiated by the deposition of the witnesses examined by the petitioner. It is to be noticed further that respondent No. 1, in his written statement in paragraphs 32 and 33, emphatically denied that there was eight round of counting and the entire counting process was over in the seventh round.
22. Sri Mukul Gogoi, the R.O. who was examined as P.W. 3 by the petitioner, categorically deposed to the effect that there was no illegality in the process of counting of 126 Saidya LAC either in the counting Hall No. 1 or Hall No. 2 as alleged in the election petition. It was stated by him that application for recounting of votes was submitted to him but he did not remember whether the same was submitted under the name and signature of the petitioner or his election agent. But it was a fact that an application praying for recount of votes in respect of No. 126 Saidya LAC was filed by or on behalf of the Congress-I candidate. He had rejected the prayer of recounting solely. In cross, this officer testified that the complaint petition for recounting was lodged by the petitioner only on completion of the counting which was rejected by him.
23. P.W. 5, Sri Bhaskar Jyoti Manta, A.R.O. adduced in chief that on the day of counting he was present since 7 a.m. in the morning till some time after the declaration of final result. The election agent of the Congress-I candidate made verbal complaint alleging irregularities/illegalities in the counting process to him and those complaints were well attended to. ON 2/3 such occasions, verbal complaints, he made to him by the election agent of Congress (I) candidate. In cross, he deposed that on receipt of those verbal complaints, he made an enquiry and found them to be baseless. According to him, whenever any complaint was raised in the counting Hall regarding the ballot papers, he personally examined the same and thereafter he gave his decision in respect of valid and invalid votes. But those which were doubtful in nature, were kept in the bundles and sent to the table of the R.O. for his decision. The R.O. may either reject or accept those doubtful ballot papers in accordance with law. He categorically stated that he was present all though out in Hall No. 1 and no valid votes in favour of Congress party was rejected nor was any vote cast in favour of the petitioner put in the box of respondent No. 1 as alleged. According to him, the election was conducted without any problem.
24. Bolin Chetia, the petitioner, P.W. 1 stated in his deposition in chief that he went to the place of counting Hall at about 8 a.m. and counting started at around 8.30 a.m. on 13.5.2001. He remained there for about one hour and as he was not well, he instructed his election agent Shri Bikash Moran, P.W. 2, to look after the counting and then he left for nearby Circuit House for rest. At about 1 p.m. he came back to the counting station and there he was reported by his election agent that there were lot of anomalies during the counting. The votes in favour of symbol 'Hand' were rejected on minor pleas while votes in favour of 'Elephant' symbol were accepted in spite of anomalies. The election agent also reported that votes in favour of 'Hand' symbol were placed in the box for 'Elephant'. The petitioner met the R.O., Sri Mukul Gogoi, P.W. 3 and told him about the anomalies with a request to see that counting took place in a peaceful manner. He also requested P.W.3, to look into the complaints made by the count counting agents in a proper manner. Thereafter he went back to the Circuit House and returned again to the counting station at around 6 p.m. The counting was over by 6/6.30 p.m. Again he was reported therein by his counting agents and election agent that the counting was not conducted as per rule and large number of rejected votes of 'Elephant' symbol were counted in favour of respondent No. 1 while their rejected vote were not counted. In cross examination. P.W.I deposed that he complained to the P.O. verbally regarding the illegalities and anomalies committed in the counting Hall. He did not lodge any written complaint because the R.O. assured him that necessary action and steps would be taken to redress his grievances. He further deposed that his counting agents were appointed by his election agent in Form No. 18 but he did not know whether his counting agents lodge any complaint in writing in respect of anomalies and irregularities committed in the counting of votes. According to him, he had not lodged any written complaint in all the cases though he had filed some complaint but those were not produced before this Court, But the petitioner claimed that he submitted a written complaint to the R.O. praying for recounting of votes at about 8 p.m. after holding consultation with his counting agents and election agent and in turn the R.O. informed them that he would discuss the matter with the Election Observer and then he would take necessary steps. But he stated that he had not called for the said complaint petition to be presented before this Court.
25. It would be pertinent to mention herein that though it is admitted and has also come manifestly in the evidence that no written complaint whatsoever was lodged with the official like R.O. during the counting, the petitioner in para 18 of the election petition and in his own deposition, stated that after holding consultation with the counting agents and election agent he submitted a complaint before the R.O, praying for recounting of the votes at about 8 p.m. The R.O. informed them that he would discuss the mater with the Election Observer and take necessary steps. But at about 2/2.30 p.m. he was reported by the election agent that the respondent No. 1 had won the election by a margin of 196 votes and their prayer for recounting was not allowed. P.W. 2 also supported the said statement of P.W.1, stating that at about 8 p.m., the petitioner made a complaint before the R.O. for recounting of votes because of the anomalies but the prayer was not considered. On the other hand, the R.O., P.W.3, admitting the submission of such application for recounting, specifically stated that the petitioner preferred an application for recounting of votes but he rejected the said prayer. But in his deposition, he took a firm stand that there were no anomalies or illegalities in conducting the counting process and wherever such anomalies were found, repoll was ordered. The testimony of the aforesaid witnesses itself speaks that neither the complaint petition nor the order of rejection by the R.O. has been tendered before this Court as exhibits for which the Court has been detained from laying its hand on those documents being absolutely relevant for the purpose of deciding the prayer of the petitioner.
26. On the other hand, the respondent No. 1, Sri Jagadish Bhuyan, R.W. 7 stated that on the day of counting i.e. 13.5,2001 he was n the Circuit House at Chapakhowa town as he was asked by Police not to go out of the Circuit House on security ground. Once he went to the counting area in the morning to meet his worker and thereafter again he went in the evening on the same day after counting was over. His deposition was that he did not enter into the counting Hall on either of the occasions. On both the occasions he met his workers and counting agents outside the counting Halls. Denying all the allegations of improper reception and rejection of ballot papers in the concerned Polling Stations at his instance, R.W. 7 claimed that as he was not present in the counting Hall, such allegations made against him did not arise at all and the same was a fabricated one. In his cross examination, he stated categorically that his counting agents placed at the concerned Tables reported him that no untoward incident happened thereon and allegations of the petitioner about the rejection ballot papers were totally baseless and incorrect. He further stated that his election agent and counting agents reported him that no objection was raised either orally or in writing by the counting agents of the petitioner as regards any irregularities on those respective Tables. In the same breath, the respondent No. 1's election agent, R.W. 10 and counting agents R.W. 1, R.W. 2, R.W. 3, R.W. 4, R.W. 5, R.W. 6 and R.W. 8 posted at the concerned Tables in their concerted deposition emphatically denied al those allegations. Their positive case is that the counting was proper and peaceful.
27. Claiming the present case to be a fit case where a direction for scrutiny and recounting of the ballot papers is utterly warranted on the basis of the unequivocal evidences so adduced, Mr, Mazumdar, learned senior counsel has forcefully argued that the petitioner has successfully made out a case for scrutiny and recounting of the ballots through his pleadings and witnesses who have tendered the best possible evidence as regards the anomalies and irregularities in the counting process. It is contended that the counting agents who worked for the petitioner and were examined as witnesses, have tendered all along corroborative and convincing evidences pertaining to the improper reception and rejection of ballot papers by the officials and as such on proper and correct appreciation of the testimony of the witnesses, this Court may order for scrutiny and recounting of the ballot papers as , prayed for. His specific argument is that the prayer of the petitioner may be allowed in the interest of justice taking into account the very small margin of votes i.e. 196 by which the petitioner has been defeat ed in the husting.
28. Objecting to such prayer for scrutiny and recounting of the ballot papers, Mr. A.K. Bhattacharyya, learned senior counsel appearing for the returned candidate, has strenuously contended that the petitioner has miserably failed to make out a case for scrutiny and recounting inasmuch as the materials placed on record before this Court, by way of allegations made in the election petition and supported by oral evidences during the trail of this case, are not sufficient and adequate justifying consideration of such recount. According to learned senior counsel, all the witnesses, examined by the petitioner, were the counting agents of the petitioner and his stern political supporter and as such those are to be appropriately termed as interested and partisan witnesses and no credence to be testimony of those witnesses needs be given by this Court. More particularly, it is argued, that the petitioner who claimed to have submitted the complaint before the R.O. praying for recounting of the votes, has failed to place the complaint on record before this Court nor has the R.O. brought the said document accompanying his rejection order thereof while deposing before this Court. It is contended that in absence of those documents, being contemporaneous documents and necessary materials for the purpose of considering the prayer for recounting, an adverse inference could be drawn against the petitioner. That apart, not a single independent witness except those his own counting agents, was examined by the petitioner. Even no attempt was made for examining the other concerned election officials and the counting agents of other candidates who were in the fray. It was argued by Mr. Bhattacharyya that those evidence led by the petitioner lacked credibility and trustworthiness to persuade the Court to allow the prayer for recounting.
29. Reliance has been placed upon a host of judicial authorities of the Hon'ble Supreme Court on the point of scrutiny and recounting of the ballot papers on the allegations of improper reception and rejection of those by the learned Counsel for the rival parties. Since law on the scope of scrutiny and recounting of the ballot papers has already been firmly established, this Court is of the view that it is not necessary to burden and lengthier this judgment with citations of those case laws and reiteration of the settled law on this point.
30. Law is settled that the secrecy of ballot papers, being sacrosanct in a democracy, should not be allowed to be violated on frivolous, vague and indefinite allegations except on clear and specific allegations and that too, must be supported by adequate statement of material facts. Electorates' mandate cannot be permitted to be interfered with lightly except for cogent and compelling reasons. The Court must, therefore, be prima facie satisfied on the basis of material facts pleaded in the petition and supported by contemporaneous evidence regarding the truth of allegations made for recount. In other words the satisfaction of prima facie case must be tested on the anvil of unimpeachable evidence. It is established that the petitioner cannot claim a recount as a matter of right but he must furnish prima face proof of any mistake committed by R.O. or other election officers by way of improper reception or rejection of votes. High standard of proof of grounds is the pointed requirement of law to impel the Court to direct recount of votes and recheck the election results. Though the relief of scrutiny and recount may be granted by the Court by exercising its discretionary power conferred on it such discretion should not be exercised in such a way so as to enable the petitioner to indulge in a roving inquiry for the purpose of fishing out the materials for declaring the election as void. It is also legally accepted that small margin of votes shall not be the sole criteria for consideration of the prayer of recounting.
31. On careful consideration of the facts and circumstances of the case in its entirety in the background of the aforesaid legal propositions and upon hearing the learned Counsel of the rival parties at length, it appears that the allegations made in paragraphs 11, 13, 16 and 17 of the election petition as noticed above the evidences brought on record by the petitioner do not disclose sufficient materials to sustain the argument of allegation of improper reception and rejection of votes in the counting process. Obvious reasons are as follows :
(a) The witnesses adduced by the rival parties may be pertinently dubbed as partisan and interested witnesses because those witnesses so examined to prove and disprove the case of improper reception and rejection of ballot papers were none but the respective counting agents of the parties posted at the concerned Tables and they lacked credibility and trustworthiness in their depositions. In such premises testimony of the petitioner and his counting agents, being partisan, has to be assessed with prudence and caution.
(b) The witnesses particularly those of the petitioner except their oral depositions, failed to produce any single document at least to show those figures of ballot papers alleged to have been illegally received and rejected. Therefore, it may be easily summed up that all the allegation, not being supported by contemporaneous documents, were imaginary, vague and afterthought. It has candidly come in the evidence of P.Ws. 2,6,10,11,12,13,14 and 15 that they did not maintain any record of such alleged improper reception or rejection of votes. The specific figures of reception and rejection of ballot papers as spelt out in their depositions, are found to be without any source or basis. In that view of the matter, the submission to take into account the small margin of votes has failed to impress this Court a wee bit.
(c) No attempt was made to examine any independent witnesses by the petitioner in support of his case. It is to be noted that the material witnesses like (i) Sri Rajen Moran, counting agent assigned to Table No. 2 of Hall No. 1, (ii) the concerned A.R.O. who allegedly rejected 17 ballot papers relating to Table No. 6 in Hall No. 1, (iii) Sri Brajeswar Pathak, counting supervisor at Table No. 6 in Hall No. 1, (iv) Sri Bipul Barua, counting assistant at Table No. 9 of Hall No. 1, (v) Sri Rabin Ignatius Lakra, counting supervisor at Table No. 9 Hall No. 1 and (vi) Sri Prabhat Sonowal, P.O. of the Polling-Station No. 106 were withheld from production as the petitioner's witnesses. Further though there were specific allegations of reception and rejection of votes by R.O. and A.R.O., they, being the necessary parties were not arrayed as respondents in this election petition. Hence such action on the part of the petitioner casts doubt as regards the genuineness and veracity of the reliefs claimed by the petitioner and under such circumstances adverse inference can safely be drawn against the petitioner.
(d) Even no written complaint was ever placed before the concerned election officer during the counting process alleging such anomalies. Admittedly a written complaint was presented before the R.O. by the petitioner requesting for recount of votes after conclusion of the counting at about 8 p.m. which was rejected by the R.O. But the said document was withheld from the scrutiny of this Court. Therefore, it can unhesitatingly be held that the evidence in support of the recounting is neither sufficient nor convincing inasmuch as it is unsafe to accept oral evidence at its face value without looking for some unimpeachable documents or specific circumstances. Mere oral testimony of counting agents is not enough to approve the prayer of recounting. This is a case which is absolutely unsupported by contemporaneous evidence.
(e) The allegation made in para 13 of the election petition to the effect that 4(four) bundles of ballot papers containing 50 each were placed surreptitiously at the compartment of respondent No. 2 by the counting agent in respect of Polling Station No. 82 is palpably found to be false and incorrect as the final result sheet (Exht. P/1) shows that the respondent No.2, the independent candidate, went blank in the said Polling Station. But on the other hand, P.W. 14 deposed that he saw that those 4(four) bundles were placed in the box of A.G.P. hence, it is observed that there were discrepancies and contradictions in the facts pleaded in the election petition and those stated in the deposition of the petitioner and his witness P.W. 14.
32. Consequently, in view of what has been observed above, Court is of the considered opinion that the petitioner is unable to demonstrate before this Court by leading satisfactory evidence that there was serious flaw in the counting process which had materially effected the result of the election so as to persuade the Court to grant a relief for recount and as such the Issue Nos. 7, 8 and 9 are answered in negative against the petitioner.
33. Since Issue Nos. 7, 8 and 9 has gone against the petitioner, this Court is disinclined to grant any relief to the petitioner under Issue Nos. 10, 11, 12 and 13.
34. In the result, the election petition stands dismissed. However, considering the facts and circumstances of the case there shall be no order as to costs.