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PETITIONER: BANAMALI DAS

       Vs.

RESPONDENT: RAJENDRA CHANDRA MARDARAJ HARICHANDAN & ORS.

DATE OF JUDGMENT01/08/1975

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. BHAGWATI, P.N. SARKARIA, RANJIT SINGH

CITATION:  1975 AIR 1863            1976 SCR  (1) 102  1975 SCC  (2) 352

ACT:      Representation of  the People  Act 1951-Sections 64 and 169-Conduct of  Election Rules, 1961-Rule 56(7)-Recount when to be  ordered-Evidence Act  Sections  74  and  77-Proof  of Public documents.

HEADNOTE:      Six candidates  contested the  mid-term election to the Orissa Legislative  Assembly from  Nilgiri Constituency. The appellant was  declared elected by a margin of 49 votes over respondent  no.  1.  Respondent  No.  1  filed  an  Election Petition challenging  the  election  of  the  appellant  and praying that  instead of the appellant he should be declared as the  successful candidate.  ’the appellant’s election was challenged by  respondent no.  1 mainly  on the  ground that through an  error- the  returning officer  did not enter the results of  the second round of counting, on table No. 13 in Form No.  20 as  prescribed by  rule 55(7) of the Conduct of Election Rules  1961. The allegation was that the results of the  second   round  of   counting  on  table  No.  14  were erroneously entered  twice in  form No.  20, once against as the second round of table No. 14 and once against the second round of  table No.  13. During the hearing of the petition, the  learned   Judge  enquired   whether  the  parties  were agreeable to  a recount  being taken  of all  ballot papers. Counsel appearing for appellant and respondents Nos. 1 and 2 agreed  to  the  course  suggested  by  the  learned  Judge. Respondents Nos.  3 to  S did not appear at the trial. After the recount  was taken  the  Deputy  Registrar  submitted  a detailed report  which was  made a part of the record of the Court.      Section 64  of the  Act provides that in every election where a poll is taken votes shall be counted by or under the supervision of  the returning  officer and  each  contesting candidate his election agent and counting agent shall have a right to  be present at the time of counting Section 169 of’ the Act  empowers the  Central Govt. after consultation with the Election  Commission to  make rules for carrying out the purposes of  the Act.’ Rule 56(7) of the Conduct of Election Rules 1961  provides that  after the  counting of all ballot papers  contained   in  all  the  ballot  boxes  used  in  a

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constituency has  been complete  the returning officer shall make the  entries in  a result  sheet in  form  No.  20  and announce  the   particulars.  The  Election  Commission  has compiled a  hand-book for  the use of the returning officers in order  to avoid errors in counting of votes. Para 14-B in chapter- VIII  of the  hand-book directs that the officer in charge of  distribution of  the ballot  paper  for  counting should take  out sufficient number of bundles from the drums so as  to make  up 1000 ballot papers and distribute them to each table  for. counting  at each round. After the counting of every  suck 1000  ballot papers  is over  the bundles are given back  to the supervisor of the counting table with the Check Memo  duly filled in and signed by the Assistant. ’the form of  the check  Memo is  at Annexure  XII-A and a sample form is  at Annexure  XII-B of  the handbook.  The  original check memo  of the  13th table  in which  the results of the second round  was entered  was not produced during the trial but a  certified copy thereof was admitted in evidence. ’the appellant objected to its admissibility.      Dismissing the appeal, ^      HELD:  The   certified  copy   of  the  check  memo  is admissible in evidence Under section 74 of the Evidence Act, documents forming  acts or  records of  the acts  of  public officers are public documents. By section 77, such certified copies may  be produced  in proof  of the  contents  of  the documents of  which they  purported to  be copies. The check memo is  a document  forming records of the acts of a public officer and,  therefore, a  certified copy  thereof given by the Collector  in whose  custody the document is kept can be admitted in  evidence  in  proof  of  the  contents  of  the original document [216A-D] 213      In form  No. 20 voles secured by the various candidates in the  second round  of counting  on table  13 was  wrongly mentioned. Whereas  the appellant  had secured 21 votes only in the  second round  of counting on table No. 13, the final result sheet  form No.  20 showed  that he  had secured  144 votes and  whereas respondent  No. 1 had secured 86 votes he was  shown   to  have  secured  109  votes.  The  error  was favourable to  both the  parties. But  whereas the  error in favour of  the appellant  was of)  the extent  of 123 votes, that in  favour of  respondent No  1 was to the extent of 23 votes only.  As the  appellant was declared to have won; the election by  a margin of 49 votes only, it is respondent No. 1 and  not the  appellant who  polled the  largest number of votes. It  must follow that respondent No. 1 has secured the maximum number of valid votes and is, therefore, entitled to be declared as the successful candidate. [216G-H; 217C-D]      The High Court was in error in directing that the Court will recount all the ballot papers. In the election petition filed by  respondent No. 1 there was no request for recount. The consent to the recount was given only by respondents No. 1 and  2. The  other respondents  had no notice that recount would be suggested or accepted, when there was no plea about it in  the pleadings  of the parties. The High Court widened unduly the  scope of the election petition and landed itself into an  unforeseen difficulty of having to decide points on which there  was neither a pleading nor an issue. True, that elections are  not a  matter of  technicalities but  even  a strong and  sensitive conscience  must not  book an  endless litigation in  which parties  will fish  for new  challenges based on  accidental discoveries  of no  more than plausible points to  ponder. The  new errors  on which  the  appellant relied had  an air  of plausibility  and no  more.  The  new

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argument founded  on those  errors had  therefore  to  fail. [217E-218C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 576 of 1975.      From the  judgment and  order dated the 6th March, 1975 of the Orissa High Court in E.P. No 3 of 1974.      Somnath Chatterjee, and Ratin Das, for the appellant.      Vinoo Bhagat, for the respondent.      The Judgment of the Court was delivered by      CHANDRACHUD, J. ’ Six candidates contested the mid-term election to the Orissa Legislative Assembly from the Nilgiri constituency. The  polling was held on February 26, 1974 and on March  1 the  result of 5; the election was declared. The appellant who  contested the  election on  the ticket of the Communist Party  of India  (Marxists) was  declared  as  the successful candidate.  According to  the results declared on March ],  the appellant secured 14346 votes while respondent 1 who contested the election on the ticket of the Bharti Lok Dal secured  14297 votes. The other contestants, respondents 2 to  5, secured  votes ranging  between 12,  312 and  5961. Respondent 6.is the Returning officer.      On April  13,  1974  respondent  1  filed  an  election petition under  section 81  of Representation  of the People Act, 1951  (hereinafter called  "the Act")  challenging  the election of  the appellant  and praying  that,  instead,  he himself should  be declared as the successful candidate. The appellant’s election  was challenged  by respondent 1 on the ground mainly,  that through  an error the Returning officer did not enter the results of the second round of counting on Table No.  13 in Form No. 20, as prescribed by Rule 56(7) of the Conduct  of Election  Rules 1961.  It was  alleged  that instead of  incorporating the results of the second round of counting on Table No. 13 in Form No. 2, the 214 Returing officer  wrongly incorporated  the results  of  the second round of counting on Table No. 14 in the column meant for the corresponding count of Table No. 13. In other words, the allegation  was that  the results of the second round of counting on  Table No.  14 were erroneously entered twice in Form No.  20, once  as against the second round of Table No. 14 and once as against the second round of Table No. 13      The appellant denied this allegation contending that he had secured the largest number of votes and that there was a clear difference  of 49 votes between him and respondent No. 1. The  appellant  also  raised  several  other  contentions touching the maintainability of the election petition on the ground of non-compliance with statutory requirements.      on these pleadings, the learned Judge of the High Court of Orissa  Cuttack, who tried the election petition framed 8 issues  but   they  were  re-cast  after  the  evidence  was recorded.  Issues   Nos.   1   to   S   pertained   to   the maintainability of the election petition and on these issues the learned  Judge found  in favour  of respondent  1. Those findings are not challenged before us and, therefore we must proceed on the basic that the election petition as presented did not suffer from any illegality.      Issues Nos. 6 to 8 are the ones with which alone we are concerned in  this appeal  and those issues arise out of the contentions in  regard to  the entries made by the Returning officer in Form No. 20. The ninth issue is consequential      Respondent l  examined himself  and  one  Khagendranath

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Naik who  was his  Counting Supervisor  on Table  No. 13. On behalf of  the appellant,  an election  agent and a counting agent of  his were  examined  as  witnesses.  Neither  party examined the  Returning officer nor indeed did the Returning Officer who  was respondent  6 to the petition offer to give evidence on  the question  as to  whether the results of the second round  of counting  of Table  No. 14 were erroneously entered as against the corresponding column of Table No, 13.      During the  hearing of  the petition, the learned Judge inquired of  the parties  whether they  were agreeable  to a recount being  taken  of  all  the  ballot  papers.  Counsel appearing for  the appellant  and respondents 1 and 2 agreed to the  course suggested by the learned Judge. Respondents 3 to 5  who had  contested the  election but were defeated did not appear  at   the trial  nor  indeed  did  the  Returning officer. On  February 3.  1975 the  learned Judge  passed an order directing  that "the  entire ballot  papers should  be recounted".      The ballot papers were accordingly sent for. Twenty-one sealed trunks  were received by the court and the recounting was done  by the  Deputy Registrar  of the High Court in the presence of  the counsel  for the  contending parties. After the recount  was taken,  the, Deputy  Registrar submitted  a detailed report  which was  made a, part of the record under an order passed by the learned Judge on February 21, 1975, 215      In view  of’ the fact that the findings recorded by the learned Judge in favour of respondent 1 on issues 1 to 5 are not challenged before us., the only question for decision is whether respondent 1 has discharged the onus of proving that the result of the second round of counting on the 13th Table was not  at all  recorded in  Form No,  20 and  whether  the result of  the second  round of counting on Table No. 14 was erroneously entered as against the second round of Table No. 13.      Section 64  of the  Act provides that at every election where a  poll is  taken, votes  shall be counted by or under the supervision  and direction  of the returning officer and each  contesting   candidate  his  election  agent  and  his counting agents,  shall have right to be present at the time of counting.  Section 169  of the  Act  which  empowers  the Central Government  after  consultation  with  the  Election Commission to  make rules  for carrying  out the purposes of the Act  provides by  sub-section (2)(g) that such rules may provide for  the scrutiny  and counting of votes. Rule 56(7) of the  Conduct of  Election Rules, 1961 provides that after the counting  of all  ballot papers  contained  in  all  the ballot boxes  used in a constituency has been completed, the returning officer  shall make  the entries in a result sheet in Form  20 and announce the particulars. Form 20 called the "Final Result Sheet" requires the returning officer to enter therein the  total number  of valid  votes recorded  for the various candidates  as also  the total  number  of  rejected ballot papers, at each round separately.      In order  to avoid  errors in  counting of  votes,  the Election Commission  has compiled a hand-book for the use of returning  officers   containing  instructions   for   their guidance at  various stages  of the  elections.  Before  the results of  the election  are entered  in Form  No. 2. it is necessary that  a record  be maintained  of  the  result  of counting of  each round.  Paragraph 14-B  in Chapter VIII of the  hand-hook   directs  that   the  officer-in-charge   of distribution of  the ballot  papers for counting should take out a  sufficient number  of bundles  from the drum so as to make up 1000 ballot papers and distribute them to each table

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for counting at each round. After the counting of every such thousand ballot  papers is  over, the bundles are given back to the  supervisor of  the counting  table with  the  "Check Memo" duly  filled in and signed by the assistant. The Check Memo shows the votes polled by the various candidates in the particular round as also the total number of rejected votes. When the  distribution  and  counting  of  bundles  is  thus completed on  all the counting tables, one round of counting is said  to be  over. the  next round  of counting will then begin. The  same procedure  is required  to be  followed for every round  of counting so that the result of each round of counting on  each table  is  reflected  in  the  Check  Memo relating to  each round.  As many Check-Memos as many rounds of counting. The form of the Check Memo is at annexure XII-A and a sample form duly filled in is at annexure XII-B of the Hand-book. These  forms are not prescribed by the Act or the rules made  thereunder but  the directions in regard thereto have to  be carried  out on the instructions of the Election Commission in  which the overall’ control and supervision of elections is vested. The directions and 216 forms contained  in the  hand-book for  the use of returning officers are  intended to facilitate the holding of fair and error-free elections  and  no  objection  can  be  taken  to either,      The original  Check Memo  of the  13th Table  in  which results of  the second  round were  entered was not produced during the  trial but  a certified copy thereof was admitted in evidence as Ex. 1, subject to the objection raised by the appellant as  to its admissibility. There is no substance in that objection. Section 74 of the Evidence Act provides that documents forming  the acts or records of the acts of public officers are  public documents.  Section  76  provides  that every public officer having the custody of a public document which any  person has  a right  to inspect  shall give  that person a copy of it together with the certificate that it is a true  copy of  the document. By section 77, such certified copies may  be produced  in proof  of the  contents  of  the documents of which they purport to be copies. The Check Memo which is  required to be maintained by the officer in charge of the  counting table  is a  document forming record of the acts of  a public  officer and  therefore, a  certified copy thereof given by the Collector in whose custody the document is kept,  can be  admitted  in  evidence  in  proof  of  the contents of the original document.      The certified copy (Ex. 1) of the Check Memo concerning the second  round of  counting on Table No. 13 shows that 40 bundles each  containing 25  ballot papers (i.e. 1000 ballot papers), were  distributed for counting in the second round. Part I  of Ex.  1 contains  these details.  Part II of Ex. 1 shows the  result of counting at the second round. According to the  entries contained  therein, the appellant secured 21 valid votes, respondent 1 secured 86, while respondents 2 to 5 secured  304, 7,  15 and 524 votes respectively. Forty-two ballot papers  were rejected,  thus making up a total of 999 ballot papers.  Evidently, there  was an error regarding one ballot paper  either at  the stage of distribution or at the stage of counting. What is relevant is not that there was an error in  the counting  of one  ballot paper  but  that  the result of  counting which is entered in the Check Memo ought to have  been incorporated in Form No. 20 in the appropriate column Surprisingly in Form No. 20, the votes secured by the various candidates  in the second round of counting on Table No. 13 were shown as: the appellant-144 votes instead of 21; respondent 1-109  votes instead  of 86; respondent No. 2_360

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votes instead  of 304; respondent No. 3_ 19 votes instead of 7; respondent  No. 4  74 votes instead of 15, and respondent No. 5-225  votes instead  of  524.  In  short,  whereas  the appellant had  truly secured  21 votes  only in  the  second round of  counting on  Table No. ]37 the Final Result Sheet, Form No.  20 showed  that he  had  secured  144  votes;  and whereas respondent  No. 1 had secured 86 votes, he was shown to have  secured 109 votes. The error was favourable to both the parties but whereas the error in favour of the appellant was to the extent of 123 votes, that in favour of respondent 1 was  to the  extent of 23 votes only. As the appellant was declared to  have won  the election  by a margin of 49 votes only over  respondent 1,  it is  plain that respondent 1 and not the appellant had polled the largest number of votes. 217      A mere  look at  the entries in Form No. 20 relating to the second  round of  counting on Table Nos. 13 and 14 would disclose the  error committed in making the entries therein. ’the entries  made in respect of Table No. 14 were accurate, but precisely  those very  figures were  through some  error carried to  the second  round of Table No. 13. It can seldom happen  that   five  contesting,   candidates  would  secure precisely the  same number  of votes  in the  same round  of counting on  two   different tables,  when a thousand ballot papers are  distributed to the two tables by picking them up at random  from a common drum or receptacle. It is, however, unnecessary to  speculate about any such possibility because it is  incontrovertible  that  entries  in  the  Check  Memo relating to  the second  round of  counting on  Table No. 13 were not  transferred to  the appropriate column of Form No. 20. We  therefore up  hold the  finding of the learned Judge that the  result of  the second round of the 14th Table came to be  recorded twice and that the true result of the second round of counting on Table No. 13 was entirely omitted while making  entries   in  Form  No.  20.  It  must  follow  that respondent 1  has secured  the maximum number of valid votes and is  therefore entitled  to be declared as the successful candidate.      This really  should be an end of the matter because the only  ground  on  which  respondent  l  had  challenged  the appellant’s election  was that  the relevant entries in Form No. 20  did not  reflect the  true picture.  But  the  order passed by the learned Judge that a recount shall be taken of all the  ballot papers  has furnished  to the  appellant  an opportunity to  raise  a  doubt,  here  and  a  doubt  there regarding the  manner in  which the,  votes were counted and the ballot  papers preserved.  In our  opinion  the  learned Judge  was   in  error  in  directing,  merely  because  his suggestion was accepted by the panties appearing before him. that the  court should  take a  recount of  all  the  ballot papers. Respondent 1 who filed the election petition had not asked for such a recount and the defence of the appellant to the petition  was, that the entries in Form No. 20 reflected a true  picture and  contained no  error. The consent to the recount was  given only  by the  appellant and respondents 1 and ’.  The other respondents who had contested the election did not  appear at  the trial  of the  election petition but they certainly  had no  notice  that,  a  recount  would  be suggested or  accepted when there was no plea.. about ,it in the pleadings  of the  parties. The  learned  Judge  widened unduly the scope of the election petition and landed himself into an  unforeseen difficulty  or having to decide point on which there  was neither  a pleading nor an issue. After the Deputy Registrar  submitted his  report, the  learned  Judge felt "serious  doubts about  the correctness of the recount"

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but all  that he  did in  order to allay those doubts was to take a  re-recount of a packet of votes where he thought the error of the recount could with assurance be located. And so we have  to countenance  an argument  based on no pleadings, arising out  of no issues and founded solely on errors, real or supposed,  which are  said to  have happened  to see  the light of the day as a result of the recount and the recount. Even election  petitions must  end at  some stage  and  they cannot, for  the reason  that  elections  are  a  democratic venture, be  permited to  procreate points during the course of their pendency. As we were listening to the 218 appellant’s  argument,   we  thought  we  were  hearing  all independent election  petition filed  by  the  appellant  in order to challenge the result of, the recount.      Mr. Somnath  Chatterjee, appearing  for the  appellant, argued that  the facts which have emerged out of the recount throw considerable doubt on the manner in which the election was held and therefore instead of declaring respondent No. I as the  successful candidate  we should  order that  a fresh election be  held. Elections,  says the learned counsel, are not a  matter of  technicalities and  the court must satisfy its conscience  that the  election before  it was  free  and Fair. Justice may. be a matter of the Judge’s conscience but even a  strong and  sensitive conscience  must not  brook an endless litigation  in  which  parties  will  fish  for  new challenges based  on accidental  discoveries of no more than plausible points  to ponder.  The new  errors on  which  the appellant now  relies have  an air  of plausibility  and  no more.  The   new  argument  founded  on  those  errors  must therefore fail.      As, respondent  I truly  secured the  maximum number of votes and  as the  appellant was, through an error, shown to have secured  the maximum.  number of  votes, we must uphold the judgment  of the  Orissa High  Court setting  aside  the appellant’s election  and  declaring  respondent  I  as  the successful candidate.      The appeal  is  accordingly  dismissed  with  costs  in favour of respondent P.H.P.                                     Appeal dismissed. 219