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PETITIONER: BALDEV SINGH

       Vs.

RESPONDENT: TEJA SINGH SWATANTAR (DEAD) & ORS.

DATE OF JUDGMENT24/01/1975

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. ALAGIRISWAMI, A. SARKARIA, RANJIT SINGH

CITATION:  1975 AIR  693            1975 SCR  (3) 381  1975 SCC  (4) 406  CITATOR INFO :  RF         1975 SC2117  (11)

ACT: Election--Conduct   of   Election   Rules,   r.63--Returning Officers  duty  to recount, when arises--Power of  Court  to order recount--Scope of.

HEADNOTE: For  a  ’Parliamentary  seat  in the  State  of  Punjab  the appellant,  a  candidate  of the Akali Dal,  and  the  first respondent,  the  nominee of the Communist Party  of  India, were two of the contesting candidates.  The total number  of votes polled were 344073 out of which 7663 were invalidated. The first respondent was declared elected by a margin of 210 votes.   Even  at the time the counting  was  completed  the appellant applied to the Returning Officer for a recount but the  application was rejected as premature.  Soon after  the announcement  of  the  votes polled by  each  candidate  the appellant  applied again for recount, under r. 63(2) of  the conduct  of Election Rules.  The Returning Officer  rejected this  application  also.  The- appellant filed  an  election petition  and contended that, the attitude of  the  counting staff  was hostile to the appellant and his party, and  that there were many irregularities in rejecting votes in  favour of  appellant,  in  accepting  vote in  favour  of  the  1st respondent,  and  in the counting and prayed for  a  general recount. The  High  Court,  by an interim  order  ordered  a  limited recount of votes in one of the segments of the  constituency and that order was affirmed by a consent order in this Court to  cover the votes of both the contestants.   This  recount revealed some errors but did not tilt the scale in favour of the   appellant.   The  election  petition  was   ultimately dismissed by the High Court. HELD  :  (1)  On  the evidence there  is  no  force  in  the appellant’s  contention  about either official  bias  or  of violation  of rules.  If there had been any manipulation  by the counting staff the matter would have been brought to the notice  of  the Returning Officer and  the  senior  officers present for supervising the counting and deciding  disputes, reference to it would have been made in the two applications

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for  recount,  and  in the appellant’s  application  to  the Election Commissioner for inspection.  Moreover, the alleged biased  behaviour is disproved by the accuracy disclosed  in the  recount, the marginal error being more or less  similar in the case of both the candidates. [388 C-F] (2)  The  Returning Officer was in error in disallowing  the recount.   Under  r. 63 the mandate for recount is  not  the exception,  and  refusal is restricted to cases.  where  the demand  itself  is ’frivolous or unreasonable’.   Where  the margin of difference is minimal the claim for a fresh  count cannot be summarily brushed aside as futile or trumpery.  If formal  defects  had been misconstrued  as  substantial  in- firmities  or vice versa resulting in wrongful reception  or rejection,   the  sooner  it  was  set  right  the   better, especially when a plea for a second inspection had been made on the spot.  Prestige or fatigue should not inhibit a fresh or a partial check.  The instructions contained in para  17, cl.  (nn) of the Procedure for Counting in the Handbook  for Returning Officers requires the Returning Officer to  ensure further accuracy in the counting of votes by making 5%  test check.  The Returning Officer, in the present ease, had  not done  so,  but  that is no ground for this  Court  to  order recount  or  to  reverse  the decision  of  the  High  Court refusing recount. [385 G-386 B; 392 C-G] (3)  While  the  Returning officer should  be  liberal,  the power  of  the Court to order recount  which  is  undoubted, should be exercised sparingly.  Even if there is  difficulty in  giving  the  serial number of  voting  papers  illegally rejected or received, an application made for inspection  of ballot boxes must give material facts which would enable the tribunal  or the Court to consider whether in the  interests of justice, the ballot boxes should be inspected or not.  In dealing general allegations that valid votes were improperly rejected  or invalid votes were improperly  accepted,  would not  serve  the purpose which is provided for in s.  83  (1) (a).   In  dealing  with this  question  the  importance  of secrecy of the ballot papers cannot 10-4023SCI/75 382 be  ignored.   The  statutory rules  framed  under  Act  are intended  to provide adequate safeguard for the  examination of  the  validity or invalidity of votes  for  their  proper counting.    Care  must  be  taken  to  see  that   election petitioners do not get a chance to make a roving or  fishing enquiry  into the ballot boxes so as to justify their  claim that  the  returning  candidate selection is  void,  and  to threaten  the  certainty of the poll by  flippant  recounts. [390 D-H; 392 G-H; 393 C-D] Jagjit Singh, A.I.R. 1966 S.C. 774, 783 and Chanda Singh  v. Choudhary  Shiv  Ram Verma, Civil Appeal No. 1185  of  1973, decided on 20-12-1974, followed. In  the present case. the High Court construed r. 56 of  the rules  in  the  light of r. 38 and took the  view  that  the ballot paper shall not be rejected merely on the ground of a formal defect as the accidental omission of the signature of the   Presiding  Officer,  without  the  Returning   Officer proceeding to consider if such defect was occasioned by  the inadvertence  or  lapse  of the  Presiding  Officer  or  the Polling  officer,  and ordered a  limited  recount  rightly. However, the number of totally rejected ballot papers of all candidates  when  subjected to a repeated  scrutiny  yielded disappointing  results  from  the  point  of  view  of   the appellant.   Out  of 1096 rejected ballot  papers  only  17, claimed  by the appellant, and 7, by the  first  respondent, were  found faulty.  Therefore, the High Court was right  in

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refusing  to grant a recount on a comprehensive scale.  [387 E-H] (4)  Even in the application to the Election Commission  the plea for inspection of the used ballot papers was  primarily confined to one Assembly segment and the rejected ballots of other  assembly  segments.   In regard  to  that  plea,  the petition  gave details, but not a scintilla of evidence,  on which  the  Court could act, was present on  the  record  to prove  prima  facie,  what  has  been  alleged.   Therefore, refusal of recount was not improper. [391 B, D-E-]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 233 of 1973. From the judgment and order dated the 18th October, 1972, of the  Punjab and Haryana High Court in Election Petn.  No.  2 of 1971. Hardev  Singh,  M.  S.  Gupta, and  R.  S.  Sodhi,  for  the appellant. S.   C. Agarwala, for respondent no. 1. M.   R. K. Pillai, for respondent no. 4. The Judgment of the Court was delivered by KRISHNA IYER, J. The dual prayers in the election  petition, by the worsted appellant, related to (a) invalidation of the 1st  respondent’s election; and (b) the, further  submission that   instead,   the   petitioner/appellant   be   declared successful  from the 12-Sangrur Parliamentary  constituency. The  petition  was  dismissed  by the  High  Court  and  the appellant  has  repeated  both his  reliefs  in  this  civil appeal.   However,  by  the  time the  appeal  came  up  for hearing, the 1st respondent, the returned candidate,  passed away, but Hari Agrawala, Advocate, has sought to appear  for an  elector  from the constituency, on the  score  that  the whole constituency is,a sense, before the  Court and  anyone from the constituency    is entitled to oppose the  election petition and also the election     appeal.    There  is   no doubt  that  the  democratic order sustains  itself  on  the rectitude at the Dolls and disputes affecting elections  are not like  private litigation but of public concern.   Viewed thus, the question raised is not free from doubt and  indeed it  may be appropriate for Parliament to consider whether  a provision analogous to 383 s.  116  of  the  Representation of  the  People  Act,  1951 (hereinafter  called  the  Act,  for  short)  enabling   the constituency  to  be alerted and to intervene  even  at  the appellate  level, should not be explicitly provided for,  as at  the trial stage.  Be that as it may, we do not think  it necessary  to do anything more than hear Shri Agrawala  more as amicus curiae than by any right inhering in an elector to intervene n the appeal.  The decisions brought to our notice do  not  clothe  in officious elector with  a  right  to  be impleaded  in appeal pro bono publico, absent express  words to that effect.  At the close of the appellant’s submissions we  did  not  feel the need to  hear  Shri  Agrawala,  since nothing  in  the persuasive arguments of Shri  Hardev  Singh induced  us  to alter the finding of the High Court  on  the sole and central issue of a right to recount. The law regarding recount is, by now’, well settled although defeated  parties are not disenchanted from challenging  the validity  of  the  count  through  election  petitions   and persistent  appeals.  On the other hand, election  petitions make averments manipulated to meet the requirements each new decision  insists on.  Even so, the facts of  this  case-not

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the  merits  of  the claim-prompt us  to  make  a  pertinent observation.  When the primary grievance of a party is error or other vitiating circumstance in the count and some ground not ’frivolous or unreasonable’ exists, many candidates trek into  the  High Court complaining of ignored demands  for  a fresh  counting,  despite the existing  guidelines  in  this behalf.  The circumstances present here constrain us to make some  concrete observations on the subject at a later  stage in   the  hope  that  election  authorities   will   respond sensitively  on  demand and reduce, by  ready  recount,  the avoidable feeling of injustice of rebuffed rivals in a close contest.  The volume of election litigation may well  shrink given more creative imagination and liberal approach in  the exercise  of powers under r. 63 of the Conduct of  Elections Rules,   1961,  instead  of  being  rigid,   resistant   and indifferent.  A stitch in time saves nine.                            FACTS A  plurality  of  five candidates  ran  for  the  12-Sangrur parliamentary seat in Punjab in the General, Elections  held in  March  1971.  (Sad that we are  in  1975,  interlocutory litigative episodes having spun to such length despite  only a  simple issue of recount being involved in the whole  case ?) The only two contestants who hotly and hopefully  battled for success were the petitioner-appellant, the candidate  of the  Akali  Dal  and respondent no. 1, the  nominee  of  the Communist  Party of India.  The total votes polled  were  of the   order  of  3,44,073  of  which  7,663   ballots   were invalidated.   The  tiny  margin  of  210  votes,  by  which respondent  no.   1  was  declared  successful,   apparently appetised  the  appellant into  attacking  the  methodology, arithmetic  and impartiality of the count and,  indeed,  the High Court went half-way with him on this score, as we  will presently  discuss.   Even  at the  time  the  counting  was completed  on  March 12, 1971 the  petitioner  presented  an application  to the Returning Officer demanding  a  recount. On some minor technical ground the application was 384 held  premature, the formalities of completing Form  20  not having   been  gone  through.   However,  soon   after   the announcement  of the votes polled bay each  candidate  under sub-r.  (1)  of r. 63 of the rules, the  petitioner  made  a second, timely, application for recount under sub-r. (2)  of that  rule.  The Returning Officer, however,  rejected  this application also although here were sat out several grounds, some  of which are the same as those urged in  the  election petition   itself.   The  petitioner,  however,  moved   the Election Commission for a recount under sub-r. (1) of r. 93. The  Commission ’having been satisfied that the  inspection, as prayed for by the appellant, is necessary to further  the ends  of  justice without, at the same time,  violating  the secrecy of the ballot’ directed the District Election  Offi- cer  of  Sangrur District to open the sealed  box  of  votes polled  in favour of the candidates in respect  of  86-Dhuri Assembly Constituency, a segment of 12-Sangrur parliamentary constituency, and the packets containing the rejected  votes of  the  Sangrur Parliamentary Constituency and  permit  the appellant to inspect them.  However, this operation was  not gone  through  since  the High Court,  when  moved  by  writ petition,   stayed  the  order  of  the   Commission;   and, thereafter, a regular election petition was filed where  the whole focus was turned on the issue of recount.  The various grounds  warranting a recount put forward by the  petitioner were duly denied by the 1st respondent.  The limited recount of  one of the segments of the  Parliamentary  constituency, namely, Sherpur, was allowed by the High Court and  affirmed

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by a consent order by this Court, amplifying the recount  to cover the votes of both the contestants.  This revealed some errors but did not produce the desired result of tilting the scales  and the petitioner pressed for a  wholesale  recount alleging  serious infirmities which we will presently  refer to. The  petitioner has set out as full a statement as he  could of the material facts and particulars on which he relied  in his  election petition.  The prejudicial features about  the telling  process were both general and segmantwise.  Let  us take a look at them.  The Akali Dal was the ruling party and the   subordinate  services  had  pressed   militantly   for increased  dearness  allowance and the State  Government  is alleged  to have rejected the plea even for interim  relief, with alleged hostile repercussions               "The  hostile  attitude  of  the   Subordinate               Services Federation and its employees  against               the Punjab Government and the ruling party  of               which  the  Petitioner  was  a  candidate  had               prompted  the  counting  assistants  and   the               counting supervisors at different stations  to               act malafidely, arbitrarily and discriminately               in the scrutiny, counting and bundling of  the               votes at the different centres and it was  for               this  reason that whereas the  Petitioner  had               received  a  majority  of  votes  but  in  the               counting  of  the votes which was done  in  an               unfair,  unjust, illegal and malafide  manner,               the  Returning  Officer, Shri  C.  D.  Cheema,               declared  respondent No. 1 elected  though  in               fact he had not secured majority of votes.                           385               Prompted by the same animus,               "the  counting agents of the  petitioner  were               not  allowed  any opportunity to  inspect  and               note  the serial numbers of the ballot  papers               which  had  been  either  illegally   rejected               though  in  fact  polled  in  favour  of   the               petitioner or wrongfully accepted and  counted               in  favour  of the returned  candidate.   This               request   of  the  counting  agents   of   the               petitioner  was  turned down on  the  plea  of               secrecy of votes and the counting agents  were               told by these assistants and other staff  that               they  had  been  directed  not  to  allow  any               counting  agents or candidate to know or  note                             down the serial numbers of the ballot papers." Admittedly,  certain reforms had been made in the manner  of mixing  all the ballot papers and the mechanics of  counting and bundling.  The serial number of the ballot was no longer printed  on  its  face but on  the  reverse  which  disabled identification  of the said number by the telling agents  of the   candidates.   These  mutations  in  methodology   were motivated  by the need to secure better the secrecy  of  the vote, a sanctified principle of free elections, and  applied to the whole country.  But the petitioner was aggrieved that his men could not note the serial numbers and the new method threw  hurdles  in the way of proper check  by  the  telling agents of the scrutiny of the voting- papers. The  election  petitioner  (vide para  9  of  the  petition) proceeded  to  particularise  the  prejudice  he   suffered, Assembly  constituency-wise, and claimed that the result  of the poll had been materially and adversely affected thereby. He  has specified distinct and different  grounds  regarding

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the  various  ’segments’  or  Assembly  constituencies   and naturally  he  cannot telescope, or mix  up  these  distinct mischiefs  or  mistakes or switch grounds from  one  to  the other.  We will examine% the omnibus criticisms and  special complaints voiced in the petition against the background  of a brooding fear of a negligible lead the 1st respondent  had obtained  as  being possibly due to unwitting error  in  the considerable, continuous counting simultaneously. on several tables, in environment not altogether tranquil. The petitioner levelled many general accusations, apart from bias  of  the  counting staff, about the  whole  process  of counting and has examined P.W. 5, the Returning Officer,  to substantiate  these infirmities.  The witness  did  candidly admit  that  he did not do any 5% test-check  or  any  other random  count.  Had he been faithful to the instructions  in the  Handbook  of Instructions issued, he might  have  acted differently.  For, the instructions contained in clause (nn) of  para 17 of the Procedure for Counting given at p. 74  of the Handbook for Returning Officers, runs thus :               "To  ensure further accuracy in the:  counting               of votes, five per cent of the total number of               bundles of valid ballot               386               papers of the different contesting  candidates               shall  be counted by you.  You will make  your               selection  of  this five per cent  in  such  a               manner that it contains bundles pertaining  to               the different contesting candidates." P.W.  5  was unmindful of this guideline, which was  a  faux pas.   While we are not disposed to direct a recount  solely on  the  basis of this peccadillo, we, stress the  need  for strict  adherence to instructions calculated to make  return error-proof  by  officers concerned.  Cavalier  attitude  or jaded indifference cannot be condoned. The  petitioner has itemised separate infirmities in  regard to  each  segment  with  inventive  ability  and   imaginary precision.   But  we are not inclined to  attach  weight  to these  seeming  grievances in the light of  P.W.  5’s  clear testimony   that  barring  the  requests  for  recount   ’no complaint  of  any kind was voiced before me  by  anyone  in connection  with the counting of votes.  Indeed, he added  : ’no  complaint regarding any official was received from  the Akali   party   during  the  election   campaign   in   this constituency’.    Disposed,  as  we  are,  to  accept   this evidence,  we find no force in the petitioner’s  be  wailing about  official  bias and violation of rules.  One  c  which needs  mention  is that the counting officials  declined  to disclose  the  serial numbers of voting  papers  which  were objected to.  It is true that there is a clear departure  in the  present  system, recently  introduced,  whereby  serial numbers  are printed on the reverse so as not to be  visible on  the  face.  This is intended to ensure  secrecy  of  the ballot.  May be that in consequence candidates who challenge illegal  rejection or reception of votes may not be able  to furnish  the  serial numbers of the ballot papers  in  their election petitions or elsewhere.  Some rulings of this Court (see  for  eg.  J. B. Singh v. K. Behari) (1) based  on  the earlier  practice of printing serial numbers  had  indicated the  need  to give these numbers to persuade  the  Court  to grant  a recount.  The change in the method of printing  the serial numbers obviously makes it difficult to observe  what is at the back of the paper and we agree that this  omission cannot  go  against an otherwise well-grounded  request  for inspection  of ballots by court.  Judicial approach must  be readjusted to the new ballot printing.  But the question is,

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has  the  appellant rested his bare wish  on  other  telling testimonial  basis  None that we can discern.  Nor  can  the reform  in  the  numbering on the back of the  ballot  be  a reason  for  recount.   Several issues were  struck  and  an enormous  volume of evidence came on record around the  core demand for recount and the Returning Officer, a key  witness in  the  case,  P.W.  5, was  also  examined.  We  have  the additional  circumstance  of an application for  an  interim count which was allowed partially with reference to  Sherpur constituency  (a  segment  of  the  concerned  parliamentary constituency).   While many issues related to some facet  or other  of  the flaws in the counting, the highlight  of  the discussion by the trial Court was around issue no. 6 (1)  (1970) 1 S.C.R. 852. 387                Is  the  petitioner entitled  to  inspection,               secrutiny  and  recount of the  ballot  papers               and, if so, to what extent?" The  interlocutory  order really covered the  crucial  issue aforesaid. The court  held  that  a cm  for  inspection  and scrutiny of votes had been    made out and observed :                "Issue  no. 6 is, accordingly, found  in  the               petitioner’s  favour  and  the  interests   of               justice   require  that  the  inspection   and               scrutiny prayed for be allowed." Although  this might appear to be widely worded,  the  Court has  confined  that  scope of this  recount  by  a  cautious direction               "since the petitioner’s allegation with regard                             to  the  rejection of such votes which   do  not               bear  the prescribed signature is confined  to               the  Sherpur Assembly constituency  alone  and               the  number  of  such votes is  stated  to  be               450...  I consider it expedient at this  stage               to inspect and scrutinise only the petitioners               rejected votes relating to that segment of the               parliamentary constituency." As  earlier  noticed, on appeal to the  Supreme  Court,  the inspection  and scrutiny was widened to cover the  ’rejected ballots of both candidates. The  main ground which appealed to the High Court in  making this  order for a fresh inspection, scrutiny and recount  of the  Sherpur  segment was the alleged illegal  rejection  of votes  on  the  score that the signature  of  the  Presiding Officer was absent on the ballot paper.  The Court construed r.  56 of the rules in the light of r. 38 and took the  view that  the ballot paper shall not be rejected merely  on  the ground of such a formal defect as the accidental omission of the  signature  of  the  Presiding  Officer,  without   the, Returning Officer proceeding to consider if such defect  was occasioned  by  the inadvertence or lapse of  the  Presiding Officer  or the Polling Officer.  This approach is sound  in law  and  a recount was rightly  undertaken.   However,  the number  of  totally  rejected  ballot  papers  of  all   the candidates  when  subjected to a repeated  scrutiny  yielded disappointing  results  from  the  point  of  view  of   the petitioner.   Out  of 1096 rejected ballot  papers  only  17 claimed  by the petitioner and 7 by the 1st respondent  were found faulty.  One of the rejected papers of the  petitioner was mutilated and its rejection was thus justified.  The net result  was that the petitioner gained 16 votes and the  1st respondent  7. The lead being only 9, proved  colourless  so far  as  the  conclusion was concerned.   Undaunted  by  the flimsy  difference, the petitioner hopefully urged that  the

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other  segments of the Parliamentary constituency should  be similarly put through a second inspection and recount.   The basis being jejune, the learned Judge declined the  request. However,  the general contentions raised by  the  petitioner about  the  unfair  counting  and  biased  processing   were examined by the High Court.  Those contentions were :               "1.  The  attitude of the counting  staff  was               hostile to the petitioner and his party.               388               2.    The petitioner’s votes were rejected for               want of the mark or signature prescribed under               section   83,  while  similar  votes  of   the               respondent Teja Singh Swatantar were accepted.               3.    That  the votes of the  petitioner  were               wrongfully   put   in  the  bundles   of   the               respondent No. 1 to inflate his count.                4.   That a number of votes marked in  favour               of the petitioner were rejected simply because               they  were  smudged due to folding  of  ballot               papers.               5.    That  some of the votes counted for  the               contesting respondent were invalid because  of               multiple markings while others were  mutilated               and  the  markings  thereon  did  not  clearly               indicate for whom they had been cast." The Court negatived the charges on sound grounds and we  are disposed  to agree.  We feel, with the learned  Judge,  that had  there been any manipulation by the counting  staff  the matter  would have been immediately taken to the  notice  of the  Returning Officer and reference to it would  have  been made  in the two applications to the Returning  Officer  for recount  or  at  least in the application  to  the  Election Commission  for  inspection made on March 17,  1971.   Their silence really silences the, grievance.  Indeed, it must  be stated with satisfaction that although government  officials at the subordinate level have been, time and again, going on strikes,  starting  agitations  and  making  demands  almost everywhere in the country, hardly any serious or  widespread instance  of  foul  play  has  been  established  in   their functioning in the election process over the last span of  a quarter  of a century.  Moreover, the contention  of  biased behaviour  of the counting staff is nailed by the  revealing accuracy disclosed in the recount of the Sherpur segment and the  marginal error being more or less noticed in the  case, of both candidates.  The activist, non-partisan presence  of senior  officers to supervise the counting and  deciding  of disputes  regarding  the reception and  rejection  of  votes etc.,  was  ’a  reassuring factor.  The  conclusion  of  the learned  Judge, which meets with our assent,  was  expressed thus               "In  view of these facts, I am of the  opinion               that no case has been made out for any further               inspection  or  scrutiny  of  ballot   papers,               especially when we find that the claim of  the               petitioner that in Sherpur segment as many  as               450  votes  polled by him  had  been  rejected               solely  on the ground that they did  not  bear               the, prescribed signature or the mark, but 200               similar votes were counted for the respondent,               stands  by the scrutiny that has already  been               undertaken. of votes of the remaining segments               will  be,  nothing  but a  fishing  or  roving               enquiry which is not permitted by law. The  general charge of hostility of  subordinate  government staff in counting is unproved, as already held.  Even so, we

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must underscore 389 the  utmost  importance of the  independence,  fairness  and activism  of the Election personnel from the  Commission  to the counting staff.  If their discretion is sensitive to the party  in  power or their antipathies  are  inflamed  during election  time, the cherished parliamentary system  will  be the casualty.  Every conscientious citizen has a public duty to desist from making reckless mud-slinging and  tendentious smearing  of  the men who makes the machinery,  promoted  by chimerical  doubts,  and  there  is  cast  a  countervailing obligation  on all who make up the election personnel to  be knowledgeable, sensible, sympathetic, sensitive and stem  to every  candidate alike.  Even seeming stiffness on  chumming up or ignorant obstinacy will discredit the instrument. In  the Returning Officer’s evidence (as P.W. 5) we find  an obscure reference to a telephonic call by the Prime Minister even as the counting was going on.  He deposed :               It is correct that when the counting of postal               ballot  papers was going on, D. S.  P.  Charan               Singh  of the Punjab Police, who was  then  on               duty  at  the gate, told me that there  was  a               telephonic call for me.  He whispered this  in               my  ear.   I,  however, asked him  to  say  it               loudly  in  the presence of  everyone  present               from where that call was.  He then said it was               from  the Prime Minister of India.  As  I  was               busy in counting I did not consider it  proper               to attend to the telephonic call and I refused               to  go to the telephone.  I also did  not  ask               anyone to receive the message meant for me.  I               did not instruct Shri Sher Singh, who was then               the Sub-Divisional Magistrate, Sangrur, to  go               and  hear  that telephone and I  do  not  know               whether   he  ever  received  any   telephonic               message." If this were true, it was unfortunate to say the least.   If it were untrue, the officer’s glib-tongued testimony  should have  invited censure.  Anyway, there is no tangible  trace, anywhere  in  the  record, even to  a  vague  suggestion  of influencing  the  counting by the Prime Minister.   It  also looks  incredible  especially since neither of  the  serious contestants is a Congress candidate.  Frivolous  suggestions linking  persons in high office should not be allowed to  be Rung  in  court, without sound basis previously  laid.   The same witness has unburdened his bosom in the witness box  to swear  that the Education Minister of the State (the  ruling party was the Akali party and his quondam Personal Assistant was the candidate in the constituency) desired to ’see’  him when  the fever of election was on.  P.W. 5 said on oath  in cross-examination               "It  is correct that S. Surjit Singh, P.W.  4,               who  was the then Education Minister,  Punjab,               visited Sangrur in the course of the  election               campaign  several times.  I do not know if  S.               Surjit  Singh was camping at Sangrur on  10th,               11  th  or 12th of March,  1971.  1,  however,               recollect  that on the evening of 11th  March,               1971,  the  Superintendent of Police  told  me               that  S.  Surjit was at  his  residence.   The               Superintendent  of Police did not give me  any               message and merely said that S.     Surjit               Singh wanted to see me. 1, however, could  not               see                390

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             him as I was busy at the time and later when I               went to the residence of the Superintendent of               Police,  I  found  that S.  Surjit  Singh  had               already left." If  it is true, it is unhappy, but it has the flavour  of  a fiction.  Further if it was true, it gave the appearance  to outsiders  of pressure by Ministers on the  poll  officers-a vice  which  must  be condemned.  If  it  were  untrue,  the officer has damned an innocent Minister. Another  fatal  blow  to’  the plea  for  recount  of  other segments pressed by the petitioner-appellant needs  mention. We have already stated that the petitioner, with what  would appear  to  be uncanny intuition, stated in para  9  of  his petition,  details  of wrongful reception of  invalid  votes etc.,  with  numerical precision and wonder  of  observation possible under the present system of counting only by resort to   resourceful  fictions  or   extra-sensory   perception. Disingenuous averments do not promote prospects of  judicial recount  and  will be dismissed as devices  to  comply  with requirements suggested in some ruling or other.  Counsel did press  before  us many citations, a few of  which  alone  we propose  to refer to, the ground covered being  overlapping, the law laid down, the same, and the determining role  being the  judicial  response to the key facts of each  case.   In Jagjit Singh(1) this Court stated               "Vague or general allegations that valid votes               were  improperly  rejected, or  invalid  votes               were improperly accepted, would not serve  the               purpose  which s. 83(1) (a) has in  mind.   An               application made for the inspection of  ballot               boxes  must  give material facts  which  would               enable  the Tribunal ’to consider  whether  in               the  interests  of justice, the  ballot  boxes               should  be inspected or not.  In dealing  with               this  question, the importance of the  secrecy               of the ballot papers cannot be ignored, and it               is  always to be borne in mind that  the  Sta-               tutory rules framed under the Act are intended               to   provide   adequate  safeguard   for   the               examination  of the validity or invalidity  of               votes  for their proper counting.  It  may  be               that in some cases, the ends of justice  would               make it necessary for the Tribunal to allow  a               party to inspect the ballot boxes and consider               his  objections about the improper  acceptance               or  improper, rejection of votes  tendered  by               voters   at   any  given  election:   but   in               considering the requirements of justice,  care               must be taken to see that election petitioners               do  not  get  a chance to  make  a  roving  or               fishing  enquiry in the ballot boxes so as  to               justify   their   claim  that   the   returned               candidate’s election is void.  We do not  pro-               pose  to  lay down any hard and fast  rule  in               this  matter: indeed, to attempt to  lay  down               such   a   rule  would  be   inexpedient   and               unreasonable."               (1)   A.I.R. 1966 S.C. 774, 783.                391 The law has beep the same, before and after (Raw Sewak Yadav v.  Hussain  Kamil Kidwai(1); and  Swami  Rameshwaranand  v. Madho Ram (2).  A judicial recount is not a matter of  right (Sumitra Devi v.    Sheo  Shankar(3)  and  convincing,   not conclusive, specificity is of the  essence. In  the  light  of what has been said above,  and  with  due

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regard  to the findings of the High Court, we are unable  to grant a recount on a comprehensive scale.  It is  noteworthy that  P.W.  5  had  heard both sides on  the  demand  for  a recount.  He has sworn significantly;               "No  request was, however, made to me  by  the               petitioner  or his counsel S.  Gururdev  Singh               for check count or random count.  I vehemently               deny  the  suggestion that the  order  Exhibit               P.W. 5/b.1 was not dictated in open soon after               the announcement of the verbal order rejecting               the  application for recount.   While  arguing               the  application for recount the  petitioner’s               counsel said that the recount may be  confined               only  to the votes relating to Dhuri  Assembly               constituency  and his request for  recount  of               the remaining votes may be ignored." Even in the application to the Election Commission the  plea for  inspection of the used ballot papers is primarily  con- fined to Dhuri Assembly segment and the rejected ballots  of other  assembly  segments.  Thus it is a fair  inference  to draw that the grievance centred round the Dhuri segment.  In regard to that plea, the averment in para 9(a) gives details including figures, absence of seal and other  irregularities like  multiple  marking  and voting.   Not  a  scintilla  of evidence on which a court could act is present on the record prima  facie to prove what has been alleged.  Therefore  the refusal of recount was not improper. This  case has made us reflect arwously on the dichotomy  in the  matter of recount between the counting station and  the court  hall.  We think it necessary to elucidate  the  legal lines  to be drawn at the two stages, as this is a fit  case which calls for such demarcation. The largest democracy in the world, India, naturally has the most  numerous electorate,, for a territorial  constituency. Several   thousands  to  a  few  lakhs  of  ballots  for   a constituency are polled and have to be inspected and counted in  a rapid process; computers and like  electronic  devices which achieve in a twinkle what manual eyes and   hands take long  hours  to  perform  are denied to  us  due  to  under- development  and indigence.  But we have human resources  in abundance, to sort out, bundle up, count, check,  scrutinize and  so  on.   Our poll finale relies on  human  power,  and judging  by the millions of votes which have passed  through the    assembly-line   processes   of   mixing,    bundling, scrutinising,  counting  and  rebundling-what  with  mammoth numbers  and  continuous work-the  errors  are  microscopic. This  I tribute to Indian ability goes to the  lesser  level staff-the clerks and (1) (1964) 6 SCR 238;          (2) 40 E.L.R. 281. (3)  A.I.R. 1973 S.C. 215. 392 teachers, say-who bear the mechanical brunt of the Himalayan labours.   When colossal heaps of votes are  processed,  the tellers  may ,make chance mistakes.  Even computers are  not totally  error-proof  and,  to  err  is  human,   physically fatigued  and  brain-fagged  as they  may  be  occasionally. Scrutiny  by vigilant officials and test-checks may be  good but  jaded  spirits cause slips.  Complacent  assumption  of perfection, when the operation is gigantic, is a frailty  of abdurate  minds.  That is why realism has induced  r.63  and issuance,  of instructions to returning officers, rooted  in practical  wisdom.   Given lively  realism  and  imaginative understanding  in  the  Returning  Officers,  many  honestly sceptical  and legitimately suspicious candidates  who  have lost  the  election  may  be stilled in  their  doubt  by  a

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recount,  and the winner, after all, has no vested  interest in  error  and  cannot  reasonably  object.   Such  is   the interpretative perspective, r.63 which has wrongly been lost sight  of by P.W. 5, the Returning Officer, in  the  present case. We frown upon frivolous and unreasonable refusals of recount by  Returning Officers who forget the mandate of  r.63  that allowance  of  recount is not the exception and  refusal  is restricted  to cases where the demand itself is  ’frivolous" or   ’unreasonable’.    These   are   strong   words.    The circumstances  of,  each case decide.  Where the  margin  of difference is minimal, the claim for a fresh count cannot be summarily brushed aside as futile or trumpery.’If as in this case,  for the Sherpur segment, a uniform view,  founded  in legal   error,  has  led  to  wrong  rejection   of   votes, rectification  by  a recount on the spot, when a  demand  is made,  would  have been reasonable.  If formal  defects  had been misconstrued at some- table as substantial infirmities, or vice versa, resulting in wrongful reception or rejection, the I sooner it was set right the better, especially when  a plea  for  a second inspection had been made  on  the  spot. Many  practical circumstances or legal misconceptions  might honestly  affect the legal or arithmetical accuracy  of  the result  and prestige or fatigue should not inhibit a  fresh, may  be  partial, check.  Of course, baseless  or  concocted claims  for recount or fabricated grounds for inspection  or specious complaints of mistakes in counting when the gap  is huge are obvious cases of frivolous and unreasonable demands for recount.  Malafide aspersions on counting staff or false and  untenable objections regarding validity of  votes  also fall  under the same category.  We mean to be  illustrative, not  exhaustive,  but  underline the  need,  in  appropriate cases, to be reasonably liberal in re-check and re-count  by Returning, Officers.  After all, fairness at the polls  must not  only be manifest but misgivings about the process  must be  erased  at the earliest.  Indeed,  the  Instructions  to Officers are fairly clear and lay down sound guidelines. Judicial power to direct inspection and recount is undoubted but  will  be  exercised sparingly.  In  a  recent  decision Chanda  Singh  v.  Choudhary Shiv Ram  Verma(1)  this  Court observed :               "A   certain  amount  of  stability   in   the               electoral   process  is  essential.   If   the               counting of the- ballots is interfered with by               too frequent and flippant recounts by courts a               new threat               (1) Civil Appeal No. 1185 of 1973, decided  on               20-12-1974;                393                to  the  certainty  of  the  poll  system  is               introduced  through the  judicial  instrument.               Moreover,  the secrecy of the ballot which  is               sacrosanct  becomes  exposed  to   deleterious               prying if recount of votes is made easy.  The,               general   reaction,  if  there   is   judicial               relaxation on this issue, may well be a  fresh               pressure on luckless candidates,  particularly               when the winning margin is only a few  hundred               votes   as   here,  to  ask  for   a   recount               Micawberishly   looking  for  numerical   good               fortune  or  windfall of chance  discovery  of               illegal  rejection  or reception  of  ballots.               This  may tend to a  dangerous  disorientation               which invades the democratic order by  inject-               ing widespread scope for reopening of declared

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             returns,  unless the Court restricts  recourse               to recount to cases of genuine apprehension of               miscount  or illelgality or other  compulsions               of justice necessitating such a drastic step." This  implies   no  break from the liberal  stance  we  have indicated for  Officers.  Election petitions come  to  Court after a month and   I ripen for trial months later and  then the appeal, statutorily vested, inevitably follows. In  this Operation Litigation, which  is    Protracted        liberal recount  or lax re-inspection of votes may  created  belated uncertainties,  false  hopes and a hovering  sense  of  long after   elections   are   over,   governments   formed   and legislatures  begin to function. Moreover, while a  recount, within  the  counting  station  with  the  entire  machinery familiar  with  the  process still available   at  hand  and operational, is one thing, a reinspection and recount  which is an elaborate undertaking with mechanics and machinery  of a  specialised nature and with cannot be judicially  brought into  existence without an amount of time, toil and  expense is  a  different  thing.  This Court  has  laid  down  clear principles on the subject meeting the ends of justice,  but, without  opening  the  flood gates  of  recounts  on  flimsy grounds.  Less election litigation is a sign of the  peoples adult franchise maturity and adventurist election  petitions are  an  infantile disease to be suppressed. Our view of  r- 63,  the relevant wholesome instructions by  the  Commission and  the rulings of this Court, ’harmonise with the  overall considerations of law and democracy. Coming to the facts of this case, we have already  indicated that  no good grounds  for a Court order for inspection  and recount,  particularly after the Sherpur experiment,  exist. Although we are free to admit that  an imaginative Returning Officer might have quietened and silenced the scepticism  of the   appellant  by  a  test  check  or   partial   recount, Proceeding  to a full recount if serious errors were  found, we  are  inclined to agree with the High Court, there  being no  reasn to reverse its elaborately discussed  conclusions, and  the  relief  was  rightly  rejected.   Necessarily,  no foundation for a in the appellant’s favour has been laid and so we dismiss but, in the circumstances, without costs. Appeal dismissed. I.P.S. 394