Sabir Kumar Qureshi Vs. Shankar Chaudhary and ors. - Court Judgment

Excerpt:
(a) conduct of election rules, 1961, rule 93 - civil procedure code, 1908, order xi, rule 15 and section 151--inspection of ballot papers--application for permission of--can be entertained and allowed, for purpose of recounting, keeping in view facts and circumstances of each case--it is upon election petitioner to satisfy court about bungling of votes.(b) representation of the people act, 1951, sections 83(1), 83(1) proviso, 86(1), 100, 101 and 123 - conduct of election rules, 1961, rules 93 and 94a--civil procedure code, 1908, order vi, rules 6 and 14 and order vii, rule 11--election petition--maintainability of--concise statement of material facts and if there are allegations of corrupt practice, its full particulars be given in petition--it should be signed by petitioner and verified..... p.k. deb, j.1. this election petition has been filed by the abovementioned petitioner with application under section 80, 80a and 81 of the representation of the people act calling upon the question of election of the returned candidate from 267 ramgarh assembly constituency for the election of a member of the bihar legislative assembly held in the month of march, 1995.2. the election result was published/announced on 1.4.1995 declaring the respondent no. 1 as an elected candidate. the petitioner had contested the said election under the banner of communist party of india (marxist group) while the respondent no. 1 was the official candidate of bhartiya janta party. as per notification of the election commission of india, sub-divisional officer, ramgarh was made the returning officer of.....

Judgment:

P.K. Deb, J.

1. This Election petition has been filed by the abovementioned petitioner with application under Section 80, 80A and 81 of the Representation of the People Act calling upon the question of election of the Returned candidate from 267 Ramgarh Assembly Constituency for the election of a Member of the Bihar Legislative Assembly held in the month of March, 1995.

2. The Election result was published/announced on 1.4.1995 declaring the Respondent No. 1 as an elected candidate. The petitioner had contested the said election under the banner of Communist Party of India (Marxist Group) while the Respondent No. 1 was the official candidate of Bhartiya Janta Party. As per Notification of the Election Commission of India, Sub-divisional Officer, Ramgarh was made the Returning Officer of that Assembly Constituency. The dates of the Election programme were notified as follows:

(i) Last date of filing nomination paper 23.1.1995

(ii) Date of Scrutiny 24.1.1995

(iii) Last date of withdrawal 27.1.1995.

Various candidates had filed Nomination papers and after withdrawal and scrutiny 27 persons remained in the fray including the petitioner and the Respondent No. 1. The date of Election were notified earlier but then it was extended time to time and finally election was held on 11.3.1995 and the counting of ballot papers continued from 29.3.1995 upto 31.3.1995 and the result was announced on 1.4.1995. After the counting was over the Returning Officer prepared a final sheet in Form No. 20 of the Election Rules indicating therein the total number of votes found in the ballot boxes in 260 Polling Station of Ramgarh Assembly Constituency No. 267. Final result sheet showed that total votes cast were 1,38,120. The final result sheet in Form No. 20 was annexed with the Election Petition as Annexure-2. The list of the contesting candidates prepared by the Returning Officer of the particular 'Assembly Constituency was annexed as Annexure-1 to the Election petition.

3. In para 11 of the Election petition, it has been mentioned how much votes had been received by each and every candidate in the fray including the total number of valid votes, rejected ballot papers and the doubtful number of valid votes. The petitioner received 31,870 votes while the Respondent No. 1 received 33,514 votes and as such the Respondent No. 1 had won the election by a margin of 1644 votes. The third position was with Respondent No. 3 receiving 21,790 votes. The result sheet showing the number of votes received by each and every candidate round wise has been annexed as Annexure-3 to the Election petition. According to the petitioner, the Respondent No. 1 had .not practically won the election but by manipulation and due to mis-counting and wrong counting he was shown as elected. That the election of the Respondent No. 1 was no fair and not in. accordance with law and rules had been stated by various statements on various course i.e. para. 15, 16, 16AA of the Election petition. The first contention of the Election petitioner was that the Returning Officer illegally and arbitrarily did not allow the petitioner to appoint Counting agent on each Table. The counting of the votes was done at 14 tables by Counting Supervisors but no-re-checking and re-examination was made by the Returning Officer and as such the procedure adopted in the counting was bad and unjustified and improper in the eye of law. According to the petitioner, he himself including his Election Agent and 14 Counting Agents had raised various objections time to time during the course of counting regarding impropriety in the counting and that the counting agents were not in a position to scrutinise the counting properly as they were made to sit at a distance of 10-12 feets from the counting table.

4. In paragraph-16 different instances have been given to substantiate the allegation of irregularity and illegality in the counting:

(i) Unused ballot papers containing the signature and seal of the Presiding Officer of different Polling Station were found .thrown in the premises of the Polling Station on 11.3.1995 i.e. the date of Election and some were collected by the Polling Agents of the contesting candidates and then handed over to the petitioner for production of the same before the High Court. The details were given in the following manner:

(a) 42 unused ballot papers bearing the seal and signature of the Presiding Officer were found thrown in the premises of Booth No. 79 situated in Middle School, Chhatarmandu.

(b) One unused ballot paper was found thrown under the seal and- signature of the Presiding Officer in the premises of Booth No. 20 situated in Sunder-Talab, Ramgarh.

(c) 3000 valid votes in favour of the petitioner were illegally not taken into consideration and the petitioner as such had to suffer failure in the Election.

(d) The Presiding Officer most arbitrarily favoured the Respondent No. 1 in all the Polling Stations at the time of casting of votes inspite of serious objections raised from the side of the petitioner.

(e) The Returning Officer at the time of counting of ballot papers illegally and arbitrarily rejected the valid votes in favour of the petitioner which materially effected the result of the Ramgarh Assembly Constituency. The written objection filed by the Election petition on 31.3.1995 and received by the Assistant Returning Officer on 1.4.1995 was ignored and there was no recounting.

(f) During the course of counting 4481 ballot papers were shown rejected of which 3000 votes in favour of the petitioner and that those ballot papers never suffered from any defect thus the result of the Election has been materially affected.

(g) Out of 10 rounds of counting in. five rounds the petitioner was leading and the Respondent No. 1 was trailing behind and on showing this the Returning Officer and his Subordinates with ulterior motive favoured the Respondent No. 1 illegally in the balance rounds of counting and made the Respondent No. 1 won in the Election.

Roundwise number of the votes received by the Election petitioner and the Respondent No. I1 had been mentioned in para-16F of the Election petition.

(h) During the course of counting, with ulterior motive illegally and improperly ballots case in favour of the petitioner had been intermingled/mixed with the ballots of Respondent No. 1 and then counted in favour of the Respondent No. 1.

(i) In such illegally way the petitioner was made to suffer to get less votes in Round Nos. 3, 4, 6, 7 and 10 and as such the Respondent No. 1 was made to win the Election.

(j) The rejected ballots in favour of Respondent No. 1 were not being rejected illegally and counted as valid votes in favour of Respondent No. 1, which materially affected the Election result.

(k) The Officers namely the Returning Officer and Assistant Returning Officer motiyatedly connived with the Respondent No. 1 by hook or crook made the Respondent No. 1 won the election by all unfair means even unused ballots coming from different booths were made to be stamped by the officers in favour of the Respondent and then counted in his favour.

It is definitely wild allegation)

5. In para-17, it has been stated that the prayer for recounting by the petitioner has been illegally rejected as according to the petitioner if such recounting would have been allowed then all unfairness' of the Counting Assistants, Counting Supervisors, Assistant Returning Officer and Returning Officer would have been brought to light. According to the petitioner, he got the majority of votes but he was illegally made to be defeated by a margin of 1644 votes.

6. On the above allegation, the Election petitioner has prayed for setting aside the Election of the Respondent No. 1 and then declare the petitioner to be duly elected Member of the Bihar Legislative Assembly from 267 Ramgarh Assembly Constituency after inspection, scrutiny and recounting the ballot papers. Thus, the prayer of the Election petitioner is to allow inspection of ballots and then after scrutiny and recounting the election result should of published and declared according to law.

7. All the candidates in the fray were made parties in this Election petition as respondents. Written statements have been filed conjointly by the Respondent Nos. 4, 6, 7, 8, 9, 11, 13, 16, 17, 19, 20, 22, 24 and 25. They were alleged to be joint in the written statement but practically the written statement has been signed by only one Respondent i.e. the Respondent No. 24, Shripal Tiwary and he had verified the written statement and filed affidavit also. In his written statement, it has been stated that the same was filed for and on behalf of the contesting respondents as mentioned above, but it should be construed legally as the written statement filed by only Respondent No. 24. He has supported the Election petitioner in all respect. Almost all the paras of the Election petition with all its allegations were reiterated in the written statement of Shripal Tiwary. He has also examined himself as PW-10 in this proceeding and supported his written statement.

8. Another written statement has been filed by Respondent No. 12 Nirmala Devi stating that although her name was there as the contesting candidate but she did not actually contest the Election as she was not supplied with the Samta Party Tickets which was assured to her at the time, of filing of the Nomination Paper and as such according to her she has got no interest to contest the Election petition.

9. Main contestant in this Election petition is the Respondent No. 1, Shankar Chaudhary, who is the Returned candidate. He has taken all usual pleas as are taken in Election cases, contending inter alia that the Election petition is not maintainable and that the same is fit to be dismissed for non compliance of the Mandatory Provisions of Sections 81, 82, 83, 100 and 101 of the Representation of the People Act. It has also been contended that a true copy of the Election petition has not been supplied to the contesting respondent and that no proper, affidavit has been made in the Election petition as required under Form No. 25 and the oath taken before the Oath Commissioner and such Oath Commissioner's seal and signature had not been, supplied to the true copy of the Election petition and as such the true copy as required to be supplied to the respondent has not been complied with and hence the Election petition should be rejected forthwith.

On legal grounds, the respondent has prayed for dismissal of the Election petition under Section 86(1) of the Act. It has also been contended that as required under the law, concise statement of material facts as required under Section 83 of the Act read with provisions of Order V Rules 6 and 14 and Order VII Rule 11 C.P.C. have not been complied with and hence the Election petition is not maintainable.

10. Regarding the allegation of illegal counting and bunding in the process of counting, it had been specifically denied parawise in the Written Statement. It has been alleged that as no specific particulars have been given in the Election petition, it, was not possible for the Respondent No. 1 to make proper reply. It has further been contended that there were allegations of illegal activities against the Returning Officer and the Assistant Returning Officer and also allegations were brought, against them on personal capacity but they have not been made parties and as such the Election petition is required to be dismissed. The allegations brought in the Election petition were denied and it has been stated that those allegations should be proved strictly by the Petitioner. According to the Respondent. No. 1, there was no illegality or impropriety during the whole process of Electioneering and the petitioner after being defeated has falsely taken all these pleas only to make out grounds for filing this Election petition. Regarding the allegations that 43 ballots were found scattered in Booth No. 20 and Booth No. 79 were totally untrue and those ballots were only forged and fabricated to make out a ground for filing the Election petition. As no particulars have been given regarding rejection of 3000 ballots in favour of the Election petitioner, it is contended that the Election petition should be dismissed as lacking of proper particular. Respondent No. 1 has prayed for dismissal of the Election petition with costs.

11. Besides filing of the written statement, no recrimination petition has been filed for and on behalf of the Respondent No. 1. After the Written statements were filed then on the basis of the pleadings of the parties, vide order dated 24.11.1995 following issues were framed in the case:

(1) Is the Election petition maintainable?

(2) Whether there was any illegality or irregularity caused in counting of the Votes?

(3) Whether the Election petition is barred under Section 94 of the Representation of People Act?

(4) What other relief, if any, is the petitioner entitled to?

12. The prayer was made for and on behalf of the Respondent No. 1 to hear the issue of maintainability as a preliminary issue but this Court by the same order dated 24.11.1995 has held that in the facts and circumstances of the case, the maintainability issue should be heard alongwith other issues.

13. During the course of hearing of the Election petition, both parties adduced evidence in support of their respective cases.

For and on behalf of the Election petitioner, as many as 20 witnesses have been examined. Out of them, PW-1, Manzoor Khan, PW-2 Binod Thakur, PW-4, Braj Kishore Mahto, PW-5, Lakhan Mahto, PW-6 Uday Kumar Singh, PW-8, Shri Ram Mahto, PW-9, Bidhilal Mahto, PW-14, Harihar Singh Munda, PW-15, Halim Khan, PW-16, Joherlal Vishkarma and PW-18, Rejendra Kumar are the counting agents who were present in the counting hall during the process of counting from 29.3.1995 till publication of the result on 1.4.1995. Three independent witnesses have been examined to support the case of the Election petitioner, namely, PW-10, Sripal Tiwary (who filed the written statement also), PW-11 Sahadat Hussain, who is Respondent No. 25 and PW-13, Lakhan Bedia, who is Respondent No. 21 have been examined and they attempted to support the case of the Election petitioner. Two voters have also been examined as PW-12, Umesh Singh and PW-17, Kamal Sahzada. They also attempted to support the allegations in the Election petition. PW-7 is a Polling Agent. PW-19 is the vital witness who happens to be Maizuddin, Election Agent of the Election petitioner. PW-20, Sabir Ahmad Qureshi is the Election petitioner himself.

14. On the other hand, 11 witnesses have been examined for and on behalf of the defence. Out of them, DW-2 Ghanshyam Mahto and DW-9 Kanchan Prasad Verma are the Counting Agents. DW-7 Deodhari Kalmali is an Independent candidate who fought the Election and is Respondent No. 9 in this case. DW-1, Ram Naresh Singh is the Vice President of Ramgarh Unit of B.J.P. He has been examined to deny the allegation in the Election petition. DW-3, Jugal Prasad Jaiswal is the vital witness for the defence as he was the Election Agent of Respondent No. 1, Shankar Chaudhary. DW-4 Ram Surekh Singh is an official witness who was an Executive Magistrate of Ramgarh at the relevant time and he was assisting the Returning Officer in the course of counting of votes. Amongst other official witnesses, DW-5, Lal Ram is the Assistant Returning Officer. DW-6, Rammani Tripathy, who was the Central Observor for the Assembly Constituency in question and DW-8, D.K. Das who also another Central Observor. DW-11, Prataya Amrit was the Returning Officer. DW-10, Shankar Choudhary is the Respondent No. 1 himself.

15. Some documents have also been Exhibited for and on behalf of the Election petitioner, namely, Ext. 1 series. Ext. 1 is a ballot found scattered allegedly in Booth No. 20 and Ext. 1/1 to Ext. 1/42 are the 42 ballots paper alleged to be found scattered in Booth No. 79. Ext. 2 is the objection petition filea by the petitioner during the course of counting allegedly with a prayer for recounting. This Ext. 2 is the Annexure-4 of the Election petition.

16. On the other hand, Respondent No. 1 has exhibited the copy of the Election petition served on him as Ext. A.

After the evidence was closed and before argument could be started the Election petitioner has filed a petition under Order XI Rule 15 C.P.C. read with Rule 93 of the Election conduct Rules for inspection of ballots, praying therein that after inspection of ballots if the allegations brought could be found to be true then there should be a recounting for getting the relief in favour of the Election petitioner.

17. An objection has been raised from the side of the Respondent No. 1 that no case has been made out from the side of the Election petitioner for the purpose of inspection of ballots and as such that petition should be dismissed.

18. That petition and objection raised, with the consent of parties, have been kept for hearing at the time of argument as in such sort of cases, where recounting has been prayed for, inspection of document is the vital matter to be construed for the purpose of recounting. If the Election petitioner could make out a case prima-facie for recounting then and then only such petition for inspection of documents are being allowed. So, the whole prayer of recounting as made by the petitioner shall depend on the allowance of the petition under Order XI Rule 15 C.P.C. read with Rule-93 of the Election Conduct Rules for the purpose as to whether there can be recounting or not.

FINDINGS

19. In this Election petition, the main ground of challenge is three fold:

(i) Some ballots (signed) found outside the booth No. 20 and 79 and those have not been taken care of by the Electioneering authorities and as such counting of the ballots regarding the total votes cast and the ballots returned from different Polling Station booth-wise specially in respect of Booth No. 79 and 20 remained incorrect and as such it has materially affected not only the counting but also result of the Election;

(ii) The Election petitioner was not allowed to put Counting Agents in each tables at the time of counting and as such counting was materially affected and further 3000 validvotes in favour of the petitioner had been illegally rejected and so the result has been materially affected.

(iii) Booth capturing regarding Booth No. 79 and 20, when allegation is there that the B.J.P. workers had attempted to cast votes by taking the ballots from the Presiding Officers and giving marks in favour of the B.J.P. candidate and then put on the ballot boxes (although, this allegation of booth capturing had not been brought in the Election petition, but evidence has been adduced to that affect).

Mr. A.N. Deo, has rightly not argued on this point of booth capturing as he could find that such ground cannot be substantiated when that was not there in the Election petition.

(iv) The Returning Officer and Assistant Returning Officer had connived with the Respondent No. 1 and had indulged in bungling in counting after 5th round of counting, when' the Respondent No. 1 was found trailing far behind the Election petitioner and after those bunglings the Respondent No. 1 was made to receive more votes than the Election petitioner and as such the counting was totally improper, illegal and irregular.

20. During the course of hearing i.e. after the evidence was closed as mentioned above, a petition under Order XI Rule 15 read with Section 151 C.P.C. and also under Rule 93 of the Conduct of the Election Rules, 1961 was filed for the purpose of inspection of the document to find out the veracity of the counting so that recounting of ballot papers can be ordered by the Court.

21. Rule 93 of the Conduct of Election Rules, 1961 gives a jurisdiction and power to the High Court to grant permission for inspection of the ballot papers. In general where in the Election petition, there is prayer for recounting then invariably such petitions under Order XI Rule 15 C.P.C. read with Rule 93 of the Conduct of Election Rules are filed. In this respect Rule 93(1) of the Conduct of the Election Rules, 1961, may be relevant. These two provisions of the Code of Civil Procedure and that of the Conduct of the Election Rules gives authority and jurisdiction to the Court for allowing or according permission to inspect the ballot for the purpose of recounting. Various judgment's have been passed on these matters by different High Court and also by the Apex Court. The notion prevalent previously was the sanctity of the election and the confidentiality/secrecy of the ballots would go against if such petition for inspection is allowed. But then serious of decisions were there by the different High Courts and also by the Apex Court that even at the cost of confidentiality/secrecy, if overwhelming evidence and materials are found to support the contention that definite bunglings were there at the time of counting of ballots then the inspection of ballots may be grated to maintain the sanctity of the election. After those judgments, there was change in the Rules of the Election and the Confidentiality/secrecy as far as practicable has been attempt to be maintained even if the ballots are being inspected. Previous, counting was being made polling Station-wise and booth wise but after change of Election Rules, countings are made after the mixture of ballots from different booths so that there may not be any possibility to find out from which booth ballots were coming. Thus, petition under Order XI Rule 15 of the C.P.C. is definitely maintainable, but its applicability in a particular case would depend upon the facts and circumstances of each particular case and as mentioned above such order can be passed only after the Court is satisfied from the materials on the record that there is strong doubt regarding the sanctity of counting and that bunglings were there at the time of counting.

22. On going through the different judgments of the High Courts and of the Apex Court, it could be found that whether the difference of votes by which the Election petitioner had lost the Election is small and at least for more than thousand number of the votes Election petitioner could be able to show that there was clear bunglings in the counting of votes then the Court generally allow such inspection and then recounting.

It may be mentioned here that such inspection and re-counting was ordered by a Bench of this Court in the case of Liander Tiru v. H.E. Horo 1986 E.L.R. page-253. The said judgment of this Court had been confirmed by the Apex Court as reposed in : AIR1989SC2023 . Although the Election petition was dismissed on some other grounds but regarding the order of inspection and recounting was upheld by the Supreme Court. In that case the difference between the returned candidate and the Election Petitioner were very shall in number.

23. Before going into the merits, let me first of all take the maintainability issue which is of a vital importance in such sort of cases.

24. Issue No. 1: Regarding the maintainability of the Election petition, Mr. Barnwal S. Lal has submitted that the Election petition should be thrown out at the very inception as Election petitioner does not disclose the material facts for coming into a fulfledged inquiry and trial. His further submission is that the petitioners is not coming with clean hands. The affidavit sworn in the Election petition does not deserve consideration of the Election petition as a whole as the oath taken and affidavit sworn in are not in conformity with the oral evidence adduced. His second submission is that the Election petition is not worth maintainable when the material particulars regarding the allegations brought are totally lacking giving no scope of specific reply. As per Section 83(1)(a) of the Representation of People Act, an Election petition should contain a concise statement of the material facts on which the petitioner rely and in respect of corrupt practice the petitioner is liable to set forth full particulars including the full statement as far as practicable regarding the parties alleged to have committed such practice and that the Election petition must be signed by the petitioner and verified in the manner laid down in the Civil Procedure Code. In respect of corrupt practice, the petition must be accompanied by an affidavit in prescribed Form No. 25. By referring to the different paragraphs of the Election petition, it is the submission of Mr. B.S. Lal that there is no concise statement of material facts in support of the allegations made in the Election petition. In para 16-E of the Election petition, there is allegation of the Election petitioner that out of 4481 rejected ballot papers 3000 votes were in favour of the petitioner and those ballot papers never suffered from any defect but those have been illegally rejected causing material affect in the publication of the result.

25. These 3000 votes, as has been stated in this paragraph had not been given break up, table wise, round wise. Only a vague statement has been made that 3000 votes belonging to the Election petitioner had been illegally rejected. When table number, round number, etc. had not been given then it is the submission of Mr. Lal that the election petition with such vague allegation cannot go for trial. Moreover, as regards this paragraph No. 16E in the affidavit in paragraph-5 and verification thereof, it has been stated by the Election petitioner that those informations have been received and derived from his counting agents and Election agent which he believed to be true. Neither the name of the Counting agents of table number has been given or the source of the Election agent which he believed to be true. Neither the name of the Counting agents of table number has been given nor the source of the Election Agent has been disclosed.

26. In a case for recounting specifications are definitely necessary and if no specifications are there then by making some vague statements that such number of votes had been illegally rejected and that those votes were in favour of the Election petitioner cannot make a Court satisfy for allowing the Election petitioner to substantiate the facts. What has been stated in the Election petition that cannot be substantiated by any oral evidence afterwards. Moreover, from the evidence of the counting agents in favour of the Election petitioner, it could be found that none of those agents could give any particulars regarding the rejected number of votes in their particular table, nor even any total or that how many were in those rejected ballots belonged to the petitioner. Thus, the statements made in the Election petition even if taken consideration of oral evidence then also the allegations remained vague without any specific proof whatsoever. In that view of the matter, definitely the Election petition suffers from specific particulars as required under Section 83(1)(a) read with Section 100 and 101 of the Act.

In this respect, various judgments of the Supreme Court may be referred to namely : [1954]1SCR892 and : [1969]3SCR603 .

27. But, Mr. A.N. Deo submitted that when there is no allegation of corrupt practice then only a concise statement regarding material facts are to be stated and as such the material facts regarding allegation brought has been stated in the Election petition. Such specific particulars, as had been raised by Mr. Barnwal S. Lal is not required for the purpose of Election petition where there is no allegation of corrupt practice. In this respect he has referred to : [1984]1SCR118 , Arun Kumar Bose v. Mohd Furkan Ansari.

In that Election petition, number of wrongly rejected ballot papers were furnished together with counting table number and booth number were disclosed. In the present context, booth number is not required to be given as Booth number would no be available but counting table number wherein the alleged votes were rejected must have been mentioned together with round number then and then only it can specify that there are sufficient material particular given otherwise the petition is definitely required to be dismissed under Section 86(1) of the Act. Similar is the position with paragraph 16B.

28. As regards para 16A wherein it is stated that unused ballot papers could be found through in Booth No. 20 and Booth No. 79, 43 in total, it has been stated in the Affidavit that the information has been received in respect of those ballots from the Counting Agents and the Election Agent. Counting agents cannot give such sort of information regarding the paragraph 16-A. but how the Election Agent got the information has not been stated. It must be from the Polling Agent of those booths but he names of Polling Agents or the information from the Polling Agents has not been stated. So the material particulars are lacking regarding this allegation also, thus, the main allegation regarding counting and getting of the unused ballot paper from the Polling Stations, material particulars have not been supplied and in that view the Election petition is definitely remained somewhat vague and hit by Section 83(1)(a) of the Act.

29. There are allegations against the Returning Officer and the Assistant Returning Officer and the Counting Staffs of illegally reducing the number of valid votes in favour of the petitioner and they had indulged themselves in unfair means by taking unused ballot papers and stamped them and then put for .count in favour of the Respondent No. 1. This sort of allegations are definitely unprecedented and unwarranted and it is submitted by Mr. B.S. Lal. when in respect of Returning Officer having been in connivance with the Respondent No. 1. in doing such unfair bunglings then the same led to corrupt practice sand if corrupt practice has been pleaded then full particulars are required to be given but the Election petition on the fact of it and apparently lacking in such full particulars and hence the Election petition should be thrown out on that score alone.

30. Mr. A.N. Deo has fairly submitted that in respect of those allegations, although those were mentioned in the Election petition those have not been pressed by the Election petitioner at the time of evidence and those allegations may be said to be non-pressed and as such question of corrupt practice cannot come into play and hence full particulars of those allegations do not require to be placed.

But, the fact remains that in the Election petition, those corrupt practice have been pleaded but the same has been given up at the time of argument only and when corrupt practice has been alleged and full particulars have not been given then the Election petition is hit by Section 83(1)(b) of the Representation of People Act.

31. Another point has been raised by Mr. B.S. Lal by referring to two recent judgments of the Supreme Court as to the non maintainability of the Election petition where the copy of the Election petition does not bear the oath Commissioner's signature and seal namely. AIR 1996 S.C.1691 Dr. Shipra v. Shanti Lal Khoiwal and : AIR1996SC3350 Harcharan Singh Josh v. Hari Kishan.

In both the judgments, it has been held by the Apex Court that when there are allegation of corrupt practice then if the copy of the Election petition, does not bear the affidavit with seal, signature and endorsement of the Oath Commissioner then the same is hit by Rule 94A and Form 25 of the Election Rules and in both cases although the other grounds were allowed to be continued in the Election petition but the allegation of corrupt practice has been struck down under Section 86(1) of the Representation of the people Act. In the judgments of the Apex Court, it has not been considered the Oath Act and the provisions thereof and that the Oath Commissioner is within his duty and jurisdiction to take oath of the Election petitioner on the original Election petition only. The same oath is not required to be taken by the Election petitioner on each and every copy supplied to the respondents otherwise the oath as made under the Oath Act would lose its meaning. It is in that view of the fact it is not known how in the true copy there should be an endorsement of the Oath Commissioner, when the Oath Commissioner is not legally bound to sign on each and every copy of the Election petition. By law and Rules and the Oath Commissioner is only supposed to sign on the main petition i.e. the Election petition itself.

32. Be it what it may, the judgments of the Supreme Court is binding on this Court. It is admitted position that the regarding certificate and affidavit, it is only necessary in respect of Form No. 25 which is required in respect of Election petition wherein corrupt practice have been alleged. In other Election petition where there is no allegation of corrupt practice but the Election has been challenged on other grounds then the corrupt practice then oath and affidavit is not a must as required in Form No. 25. In the Supreme Court decisions' the allegation of corrupt practice were there alongwith other grounds and as such in the case reported in 1996 SCI691. it has been held that true copy being not supplied with the attestation of the Oath Commissioner to the respondent, the plea of corrupt practice should be struck off, but other pleas challenging the Election petition should go for adjudication.

33. According to Mr. B.S. Lal, the allegations brought against the officials tentamount to allegations of corrupt practice against the Respondent No. 1 also as it has been alleged that Respondent No. 1 in collusion with the officials had indulged in bungling of the counting and as such allegations referred to corrupt practice is there against the Respondent No. 1 also.

34. Proviso to Clause (b) of Section 83(1) of the Representation Act need that were the Election petition makes allegation of corrupt practice then the petition should be accompanied by an affidavit in the prescribed format i.e. Form No. 25, in support of such corrupt practice and particulars thereof. The mode of swearing affidavit has been enumerated under Rule 94A of the Conduct of the Election Rules, 1961, wherein it has been stated that the affidavit must be sworn before a Magistrate of the 1st Class or a Notary Public or a Commissioner off Oath in Form No. 25.

As per the contention of Mr. B. S. Lal in the present Election petition there being allegation of corrupt practice in the way that the Returned candidate has connived with the Gazetted Officers and the Returning Officer and the Assistant Returning Officer for the furtherance of the success of the election of the Respondent No. 1 indulged in bungling of counting and hence copy which has been served on Respondent No. 1 having no seal or signature of Oath Commissioner, the Election petition is liable to be dismissed on maintainability ground alone.

35. Now, first of all, it must be construed whether this allegation of taking the help of the Gazetted Officers for furtherance of success in the Election is an allegation or corrupt practice or not and that is the basic necessity to attract the decisions of the Apex Court, as mentioned above.

Corrupt practice has been defined under Section 123 of the Representation of People Act, 1951. Proviso to Section 123(7) of the Act enumerates that any person in the service of the Government and belonging to any of the classes aforesaid in the discharge or purported discharge of his official duty, makes any arrangement or provides any facilities or does any other act or thing for, to, or in relation to any candidate or his agent or any person acting with the consent of the candidate or his Election Agent, such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election. So, even if any help is taken from the Gazetted Officers who were engaged in the election duty, shall not come within the purview of allegation of corrupt practice. This amended proviso has been added in the Representation of People Act after the Election result of late Mrs. Indira Gandhi. Thus, the allegations made in the present Election petition besides the allegation that the Assisting Returning Officers had put seals on the unused ballot papers and made it counted in favour of the Respondent No. 1 which had been given up by Mr. A.N. Deo from challenging the Election petition, other allegations against the officials practically gives outside the scope of corrupt practice as per proviso (7) of Section 123 of the Representation of People Act, hence when the other allegations of corrupt practice has been given up then there remained no allegation of corrupt practice and hence there remains no question of making any affidavit in Form No. 25 as per Rule 94A of the Act and hence as per the judgment of the Supreme Court, stamp, signature and official seal of the Oath Commissioner not being there in the copy of the Election petition does not vitiate the process of the Election petition and hence sumrnar dismissal under Section 86(1) of the Representation of People Act does not arise. Thus, in my view, when allegation of corrupt practice is not there, those two judgments of the Supreme Court would not be applicable in the case, but when material particulars required under Section 83(1)(a) are lacking in its proper perspective then the Election petition must be held to be a vague one and hence not maintainable.

36. When source of information had not been properly expressed and when no particulars of rejection of valid votes table wise, round wise have not been mentioned and even after evidence also those could not be properly produced then there remains no other alternative but no held that the Election petition is not maintainable in its present form being vague one lacking in material particulars. Moreover, it appears that the petitioner is not coming up with clean hands in the Election petition. He had brought the allegation of stamping unused ballot papers by the Assistant Returning Officer but at the time of evidence and argument, he has given up that issue. Again regarding the recovery of ballot papers being scattered in Booth No. 20 and 79, nothing had been stated in the Election petition that the B.J.P. workers were found stamping ballot papers but when being intervened they fled away and then those unused ballot papers papers could be found scattered outside the two Booths, were never been pleaded in the Election petition but at the evidence stage those have been brought. Thus, he wanted to get the Election set-aside by hook or crook. Definitely, it must be held that the petitioner is not coming with clean hands and when an Election petitioner comes for equitable relief for getting inspection of documents and then recounting then if he does not came with clean hands then it must be held that the Election petition has been filed with ulterior motive being defeated in the Election. In this respect, it must be mentioned hear that false statement has been made in the Election petition that the petitioner was not allowed to give Counting Agents in all the Counting tables, but in oral evidence the 'same has been believed. This is also another instance of not coming with clean hands. This issue is thus decided in negative and against the Election petitioner.

37. Issue Nos. 2 and 3 They are taken together ad they are inter related. In the foregoing issue, I have already held that vague allegations have been made regarding irregularity/illegality and impropriety in the Counting. So many Counting Agents have been examined for and on behalf of the petitioner of different tables but all have deposed parrot like without giving particulars and specific numbers regarding the illegal rejection of ballots. Even they could not give specific numbers table wise or round wise. Counting Agents are definitely the partisan witnesses and they have not been able to give specific particulars regarding the rejection of ballots and how they remembered those rejection at the time of evidence i.e. after two years from the date of counting, have not been properly expressed or revealed. When parrot like evidence is there from the side of the petitioner and there is denial from the side of the Respondent No. 1 by adducing evidence of some of the Counting Agents of some of the tables then the partisan witness adduced evidence in the case may be construed as balanced evidence. In that view of the matter, if we go to scrutinize the evidence of official witnesses adduced from the side of the Respondent No. 1, we can find that the official witnesses have categorically denied about any bungling in the course of counting, nor there were any objection raised from the side of the Election petitioner or any candidate whosoever. Regarding Ext. 2, it has been stated by DW-10 in specific words that such petition was filed after the counting was over and election-sheet was signed by him and having no scope to consider the same he had passed an order in the proceeding and the copy of the order was sent to the Election Commissioner before publication of the result and after getting the green signal from the Election Commission, New Delhi, the result was published. The two Central Observers have also deposed in the same line that there was no bungling in the course of counting. The statements made in the Election petition and the result-sheet are discrepant. In some of the rounds, the petitioner was definitely ahead of the Respondent No. 1 and in some of them he was trailing behind. In that situation, it cannot be said that the petitioner had raised objection regarding illegal or improper counting. When he could find that he was trailing behind and after the counting was over he could find that he had lost the Election then and then only he filed Ext. 2, but Ext. 3 is too vague on which the Election authorities could have taken steps for the purpose of recounting. AS per contents of Ext. 2 the Election petitioner stated that the difference between the Respondent No. 1 and him is too small and that during the course of counting in one or two tables, there were irregularity in rejection of valid ballots and that in the rejection votes maximum belonged in favour of the Election petitioner. On such vague allegation/objections, recounting was turned down. Moreover, as per the instruction of the Election Commission, when the result-sheet has already been signed and completed the demand of recounting cannot be entertained by the Returning Officer. In that view of the matter, the rejection of Ext. 2 cannot be said to be illegal in any way whatsoever.

38. The Election petitioner went to the extent that the Returning Officer, DW-10 hails from Rajasthan and that his father is an active member of B.J.P. and as such he had connived with the Respondent No. 1 in mis-counting of votes only with the purpose of getting the Respondent No. 1 elected. But, at the time of evidence, it could be disclosed that PW-10 never hails from Rajasthan. He is a man from Muzzafarpur within the State of Bihar and his father is not politically involved with any party whatsoever. Thus, it seems that the Election petitioner with ulterior motive even goes to insuniating the high ranking officer only to create a doubt in the mind of the Court to gain in his favour, but all his attempts had been foiled ably from the side of the Respondent No. 1.

39. I have scrutinised the evidence of the witnesses very minutely and come to the finding that the Election petitioner could not in any way be able to create a doubt in the mind of the Court that there were mis-counting or illegal or improper counting which can go for inspection of the ballot vis-a-vis recounting.

40. Mr. A.N. Deo had very streneously argued that prima facie the Election petitioner could be able to make out a case of recounting. According to him, by referring to various judgments of the Supreme Court namely : (1958)ILLJ247SC and : (1960)IILLJ39SC , prima-facie the case does not mean a case proved to the hilt, a party is said to be able to discharge his burden of proving the prima-facie case when at least materials required for the purpose could be proved. According to Mr. Deo, if the petitioner could be able to prove prima-facie that there were bunglings at the time of Counting then Court is bound to hold that prima-facie case has been proved and then alone the petition under Order XI Rule 15 C.P.C. read with Rule 93(1) of the Election Rules should be allowed and then proceed for recounting.

41. The two Rulings which have been submitted do not relate to Election petitions. They related to the Industrial Dispute Act. Be it what it may, prima-facie as required in any Act is the same on principle. In such sort of Election petition of recounting, it can be held that the prima-facie case is proved when the Election petitioner by adducing evidence or by producing materials before the Court can mould the mind of the Court to the effect that strong doubt has been created that there must have been some sort of bungling in the course of counting then it can proceed for inspection of documents and vis-a-vis recounting.

42. I have already held that in the present case the Election petition did not disclose specific materials and even after, chance being given for adducing evidence the petitioner could not be able to prove any specific materials for the purpose of recounting. As the Election petition remained vague in respect of allegation the same remained vague even after evidence has been adduced. Moreover the partisan witnesses i.e. the Counting Agents of both the parties have given balanced evidence regarding allegations. The official witnesses have specifically stated that there was no bungling and even after lengthy cross examination, nothing could be brought out from their mouth that there was any sort of bungling and no doubt could be created in the mind of the Court from the side of the Election petitioner that there was any mis-counting so that there can be an order for recounting. Moreover, the difference is more than 1500. It cannot be said that difference is very small. It might be small to the Election petitioner but for a Court it cannot be said to be a small one. The petitioner was fighting Elections all along and he was being defeated all along. This time he might be trailing behind with less number of votes than what he got earlier. In that view of the matter, he might be thinking that the difference of more than 1500 cannot be said to be a small one.

43. Again various allegations have been made that objections were raised at different stages regarding miscounting of irregular counting. But, it has been an admitted fact that this time Videography was done at the time of counting . If an objection has been raised at the time of counting then the same must have been caught/snapped at the Videography but the petitioner did not take any steps to get the Videography being exibited in the Court and inference can be made reasonably that For fear of his false allegation might be clear if the Videography is being exibited and for that reason he has restrained himself in not pressing for displaying of the Videography in the Court during the course of hearing.

44. This Court was a bit anxious regarding the unused ballot papers being signed by the Presiding Officers, exhibited as Ext. 1, series. According to the Election petitioner, one of them i.e. Ext. 1 was found scattered at Booth No. 20 and the other 42 were found scattered outside Booth No. 79 Polling Agents of those two Booths have not been examined as they would have been the best person to say as to how those have gone outside the booths and being scattered. Presiding Officer could have also been brought to the Court to give an explanation but the petitioner has not taken that risk for the reasons best known to him. At the time of evidence, they tried of develop by making a false story that the B.J.P. workers were found stamping in those ballots and on intervention of the Polling agents of the petitioner and other candidates they had fled away leaving aside the unused ballots scattered but this story was stated in the Election petitioner. All along the Respondent No. 1 is taking the plea that these are all forged ballots being managed from somewhere else to make out a case in favour of the Election petitioner. The burden lies heavily on the petitioner to prove his allegation. The Election petitioner stated in his evidence that when those unused ballots were made over to him by the Election agent then he went to DW-11 and also to the Police Station but his case has not been taken on this plea or that plea. That means on the date of Election it was known to the Election petitioner that those were found scattered and those were in the hands of the Election petitioner but he had not produced those either before the Returning Officer or before the Central Observers. The Returning Officer, DW-11 has totally denied of approaching him by the Election petitioner. It has been specifically stated by DW-11 that from none of the Stations except one Station there was any allegation of receiving of less ballot papers. If the Election petitioner could have produced those before the Central Observers or the Returning Officer at the begining of the Counting then it could have been verified from Booth No. 20 and Booth No. 79 as to whether there were any shortage of ballots, but according to D.W. 11 no shortage was found and as per the sheets prepared all were being intact except one Booth where there was re-voting but that Booth does not relate to Booth No. 20 or Booth No. 79. Even in Ext. 2 where objections were raised, the Election petitioner has not made any mention about this fact.

45. Thus, it appears that somehow the Election petitioner could get those ballots managed for the purpose of challenging the Election or those have been forged and fabricated for the purpose of fighting the Election. Although, the allegations are definitely serious but unless something could be proved specific, there is no scope of this Court to entertain such allegation also for the purpose of recounting. Thus, I find that the Election petitioner has miserably failed to prove his case and when the Election petition is not maintainable itself for lack of proper particulars the same is liable to be dismissed and when the petition itself is not maintainable, question of inspection of documents does not arise also. These two issues also decided in negative and against the Election petitioner.

46. Independently leaving aside the maintainability issue, if on merit the Election petition is considered, as discussed in the foregoing two issues, I find that on merit also the Election petitioner has miserably railed to prove his case of miscounting, bungling in counting or its. irregularity/illegality or impropriety so that his petition can be allowed far the purpose of inspection of ballots and then for recounting. Thus, no relief can be given to the Election petitioner in this Election petition and hence the same is dismissed, but in the nature and circumstances of the case, no order as to costs.

The Joint Registrar is hereby directed to send authenticated copy of this judgment to the Chief Election Commissioner of India as also substance of the decision to the Speaker, Vidhan Sabha, Bihar.