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PETITIONER: BHABHI

       Vs.

RESPONDENT: SHEO GOVIND & ORS.

DATE OF JUDGMENT21/04/1975

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA UNTWALIA, N.L.

CITATION:  1975 AIR 2117            1975 SCR  202  1976 SCC  (1) 687  CITATOR INFO :  R          1980 SC 206  (26)  RF         1980 SC1362  (33)  E          1983 SC1311  (9,10)  F          1984 SC 396  (4)

ACT: Representation  of People Act-Election-Inspection of  ballot papers-Principles.

HEADNOTE: The appellant was elected to the U.P. Legislative  Assembly. The  appellant defeated respondent No. 1 by a margin  of  94 Votes.   The respondent No. 1 in his election petition  made an  application for inspection of the ballot papers  on  the ground  that there were improper reception and rejection  of votes.   That the election staff was suffering from  serious physical strain as they had to work without any rest.  There were arithmetical mistakes in the counting.  That the  staff was drowsy and was dozing. The  respondent  no.  1 made an application  praying  for  a sample  inspection of the ballot papers.  He  examined  some witnesses  and counting agents, and filed  some  affidavits. The  appellant also produced some evidence.  The  respondent did not give serial number of a single ballot paper which is said to have been improperly accepted or rejected.  Nor  did he file an application for recounting of votes. The  High  Court  without  going  into  the  merits  of  the application ordered a sample inspection of the ballot paper. The High Court did not give any finding whether the evidence or  the  material  adduced  by the  respondent  no.   1  was sufficient  for  the prima facie satisfaction  of  the  High Court. HELD  :  An order for inspection could not be granted  as  a matter  of routine, but only tinder  special  circumstances. Inspection  of ballot paper should not be allowed in such  a way  so as to make a roving or fishing inquiry in  order  to discover material for declaring the election void.  [205F-G, 206D] The following conditionss are imperative before a Court  can grant  inspection or sample inspection of the ballot  pepers :- (1)That  it  is important to maintain the secrecy  of  the

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ballot  which is sacrosanct and should not be allowed to  be violated on frivolous, vague and indefinite allegations (2)That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be Supported by adequate statements of material facts; (3)The  Court  must  be  prima  facie  satisfied  on   the materials  produced before the Court regarding the truth  of the allegations made for a recount ; (4)That  the discretion conferred on the Court should  not be exercised in such a way so as to enable the applicant  to indulge  in a roving inquiry with a view to  fish  materials for declaring the election to be void; and (5)That  on  the  special facts of  a  given  case  sample inspection  may be ordered to lend further assurance to  the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the  purpose of fishing out materials.         [230E-H, 231A-B] Further  held  that what appeared to have weighed  with  the High Court was the solitary circumstance that the  appellant bad  succeeded by a narrow margin and that was a  sufficient ground for ordering sample inspection.  The Court,  however, was unable to agree, with this broad statement of the law by the High Court because if a person is duly elected even by a narrow                             203 margin of votes there is no presumption that there has  been illegality or irregularity in the election.  This is a  fact which  has  to  be proved by a  person  who  challenges  the election  of  the duly elected candidate.  After  all  in  a large  democracy  such as our’s where we have  a  multiparty system,  where  the number of voters is  huge  and  diverse, where  the voting is free and fair and where in quite a  few cases  the  contest is close and neck to  neck,  a  marginal victory  by  a  successful  candidate  over  his  rival  can sometimes be treated as a tremendous triumph so as to give a feeling  of satisfaction to the victorious  candidate.   The Court  cannot  lightly brush aside the success of  the  duly elected candidate on an election petition based on vague and indefinite  allegations  or frivolous  and  flimsy  grounds. [212B-C DE] Held  further,  in the instant case, the  High  Court  while passing  the order of sample inspection made no  attempt  to apply the above principles.  The High Court actually noticed some of the important decisions and yet did not apply  them. The  High Court did not record any  satisfaction.   Allowing the  appeal, the matter was remanded to the High  Court  for disposing  of the application for inspection of  the  ballot papers  in  the  light  of  the  observations  made  in  the judgment. [205 D-F. 211 C-D]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 63 of 1975. Appeal  by special leave from the Judgment and  order  dated the  20th  September, 1974 of the Allahabad  High  Court  in Election Petition No. 19 of 1974. J.P.  Goyal, Pranab Chatterjee and G. S. Chatterjee,  for the appellant. R.K.  Garg,  S.  C.  Agarwala  and  V.  J.  Francis,  for respondent No. 1. The Judgment of the Court was delivered by FAZAL ALI, J.-By virtue of an order dated December 20,  1974 Banerji, J., of the Allahabad High Court who was  designated as   the  Election  Judge  passed  an  order  granting   the

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application of the respondent No. 1 for a sample  inspection of  the  ballot papers.  The order directed  that  a  sample inspection  of  20 bundles of 50 ballot papers each  of  the votes  counted in favour of the appellant may be  taken  out and examined along with the 5 bundles of the rejected ballot papers.   It  is against this order that the  appellant  has filed  the present appeal by special leave and has  assailed the order of the learned Single Judge on the ground that the learned  Judge  has exercised his discretion  illegally  and improperly  in allowing the sample inspection of the  ballot papers   without  there  being  sufficient  proof   of   the allegations  made  by  the respondent in  his  petition  for setting aside the election of the appellant. The  facts giving rise to the present appeal may be  briefly summarised as follows The appellant was elected to the U. P. Legislative  Assembly from  218,  Mubarakpur  Constituency  in  the  District   of Azamgarh, U. P. The last date of nomination for election  to the  said  assembly  was  January 24,  1974.   The  date  of scrutiny was January 25, 1974 and that of withdrawal January 28,  1974.  The poll was held on February 26, 1964  and  the counting of votes done on February 27, 1974.  The result  of the election was declared on February 28, 1974.  The                             204 respondent  filed an election petition before  the  Election Judge  of the Allahabad High Court some time in March  1974. The  appellant secured 19,728 votes while respondent  No.  1 had  secured  19,634 votes and thus the  appellant  defeated respondent  No.  1  by a margin of 94  votes  and  was  duly elected  to the U.P. Legislative Assembly.  In the  petition filed by the respondent before the Allahabad High Court  the respondent in paragraph-8 of the said petition made a  large number  of allegations regarding the improper reception  and rejection of votes and regarding wrong arithmetical counting of  votes  and  acceptance of votes which  were  void.   The material facts with respect to the allegations were set  out in paragraph-9 of the petition which broadly are as  follows :               (1)   That  the election staff engaged in  the               work  of counting was suffering  from  serious               physical  strain as they had to  work  without               any  rest  on that day as a  result  of  which               there  were a number of arithmetical  mistakes               in the counting of votes.               (2)   That the staff had become drowsy and was               actually  dozing  and  could  not  efficiently               discharge  its function of counting the  votes               properly. As regards the facts relating to improper rejection of valid ballot  papers  it  is said that a large  number  of  ballot papers  in  which  valid  votes  had  been  marked  for  the petitioner’ (respondent No. 1) were declared invalid despite oral protests made by the counting agents of the respondent. Similarly a large number of ballot papers had distinct marks of stamp in the column of the petitioner near the symbol  of cow  and calf and yet they were improperly rejected  by  the counting  staff  on the ground that there were  no  distinct marks.   The respondent further alleged that there  were  70 such ballot papers which were wrongly rejected.  It was also pleaded  that  a number of ballot papers which had  a  valid vote  for  the  petitioner were illegally  rejected  on  the ground  that  there were some accidental mark  made  in  the column  of some other candidate which was not a mark of  the stamp or a voting mark and the number of such ballot  papers rejected  was  50.   Finally it was said that  a  number  of

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ballot  papers which carried valid votes for the  petitioner were illegally rejected on the ground that there was no seal mark  or there was no signature of the Returning Officer  on those  ballot  papers although it was far  from  the  truth. Such  were said to be the obvious mistakes in the  rejection of the ballot papers and the counting of votes which  formed the   sheet-anchor  of  the  case  of  the   respondent   in challenging the election of the appellant.  The appellant in his written statement denied all the allegations made in the petition. While  the  election petition was being heard  by  the  High Court  an  application  was filed by the  respondent  No.  1 praying that a sample inspection of the ballot papers may be allowed.   In  support of this application  some  witnesses, counting  agents  of the respondent and other  persons  were examined and some affidavits were filed.  The appellant also produced some evidence.  The learned Judge has mentioned  in his order that this sort of evidence was led before him                             205 but  he has not at all given any finding on the  credibility of  the  evidence.  The learned Judge further  noticed  very prominently that in respect of the allegations made that the counting of votes was wrong and the rejection of the  ballot papers was improper, yet the respondent filed no application for recounting of votes as provided by r. 63 of the  Conduct of  Election  Rules, 1961.  The learned Judge  also  noticed that the respondent had not given serial number of a single ballot paper whichis said to have been improperly accepted or improperly rejected. The  Judge,  however,  allowed  the application because he thoughtthat the ends of  justice required it.  In this connection the learned Judge  observed as follows:               "But before I advert to consider the  election               petition, the affidavit and the oral  evidence               to decide whether there should be an order for               the  general  inspection of  the  used  ballot               papers, I think it will be in the interests of               justice to order a sample inspection of ballot               papers  counted in favour of respondent No.  1               as  also a sample inspection of  the  rejected               ballot papers in this case." These observations clearly show that the learned Judge  made no  attempt at all to give any finding whether he was  prima facie satisfied regarding the credibility of the evidence or the  materials  adduced  before him  but  ordered  a  sample inspection in order to test the validity of the  allegations made by the respondent.  It seems to us that in passing this order the learned Judge, while noticing some of the  leading cases  of this Court on the point which he has cited in  his judgment,  viz., Ram Sewak Yadav v. Hussain Kamil  Kidwai  & Ors.  (1)  Dr..  Jagjit  Singh v.  Giani  Kartar  Singh  and others,(2)  Jitendra  Bahadur  Singh  v.  Krishan  Behari  & Ors;(3) and Sumitra Devi v. shri Sheo Shankar Prasad Yadav & Ors.(4)  has  made no attempt to apply the  principles  laid down in those cases to the facts of the present case. Before,  however,  dealing  with the  order  passed  by  the learned  Judge it may be necessary to refer to a  number  of authorities  of this Court on the circumstances under  which an  inspection  of the ballot papers, or for that  matter  a sample inspection, can be allowed.  In the case of Ram Sewak Yadav (supra) the matter was considered at great length  and this  Court pointed out that an order for  inspection  could not be granted as a matter of routine but only under special circumstances and observed as follows :               "An order for inspection may not be granted as

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             a  matter  of course : having  regard  to  the               insistence  upon  the secrecy  of  the  ballot               papers,  the  Court  would  be  justified   in               granting an order for inspection provided  two               conditions are fulfilled:               (i)that  the petition for setting aside  an               election contains an adequate statement of the               material facts on which the petitioner  relies               in support of his case; and (1)[1964] 6 S.C.R, 238. (2)A.T.R. 1966 S.C. 773. (3)) [1970]    1 S.C.R. 852. (4)  [1973] 2S.C.R.920. 206               (ii)  the  Tribunal is prima  facie  satisfied               that in order to decide the dispute and to  do               complete    justice   between   the    parties               inspection of the ballot papers is necessary.               But  an order for inspection of ballot  papers               cannot be granted to support vague pleas  made               in  the  petition not  supported  by  material               facts or to fish out evidence to support  such               pleas.  The case of the petitioner must be set               out  with precision supported by averments  of               material  facts.   To  establish  a  case   so               pleaded   an   order   for   inspection    may               undoubtedly,  if  the  interests  of   justice               require,  be granted.  But a  mere  allegation               that the petitioner suspects or believe,  that               there has been an improper reception,  refusal               or  rejection of votes will not be  sufficient               to support an order for inspection." Two  years  later in Dr. Jagjit Singh’s  case  (supra)  this Court observed on the facts of that case that the discretion to  allow inspection of ballot papers should not be used  in such  a  way so as to make a roving or  fishing  inquiry  in order to discover materials for declaring the election void. In   this   connection,  this  Court  made   the   following observations               "The true legal position in this matter is  no               longer in doubt.  Section 92 of the Act  which               defines the powers of the Tribunal, in  terms,               confers  on it, by Cl. (a), the  powers  which               are vested in a Court under the Code of  Civil               Procedure  when trying a suit, inter alia,  in               respect    of   discovery   and    inspection.               Therefore, in a proper case, the, Tribunal can               order    the   inspection   of   the    ballot               boxes...................  An application  made               for  the inspection at 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 statutory rules  framed               under the Act are intended to provide adequate               safeguard for the examination of the  validity               or  invalidity of votes and 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

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             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." In  Jitendra Bahadur Singh’s case (supra) the order  of  the Election Judge granting inspection of the ballot papers  was reversed  by this Court because the Court thought  that  the learned Judge had not followed the essential conditions laid down before granting the                             207 prayer  for inspection of the ballot papers.  In  that  case the   Court  held  that  the  allegations  were  vague   and indefinite,  no material fact was pleaded and  further  that the  petitioner was present at the time of counting and  yet he  did  not  take  any  objection  regarding  the   illegal rejection  of  the  votes.  In this  connection  Hegde,  J., speaking for the Court laid down the following principles               (1)   that the petition for setting aside  the               election must contain an adequate statement of               the  material  facts on which  the  petitioner               relies in support of his case; and               (2)   the   Tribunal  must  be   prima   facie               satisfied that in order to decide the  dispute               and   to  do  complete  justice  between   the               parties,  inspection of the ballot  papers  is               necessary. The cases of Ram Sewak Yadav and Dr. Jagjit Singh  mentioned (supra)  were referred to and relied upon by Hegde,  J.,  in his judgment. Another case which appears to be in point and which was  the sheet-anchor of the argument of the learned counsel for  the respondent  is  the case of Sashi Bhusan  v.  Prof.   Balraj Madhok & Others.(1) It is true that a sample inspection  was allowed  in that case.  But, in our opinion, it was so  done because  of the special facts of that case.  The  allegation of the respondents in that case was that many ballot  papers were  chemically  treated so that the  mechanically  stamped marks  in  favour  of the  successful  candidates  by  using invisible ink emerged and the mark actually put at the  time of   polling  disappeared  after  a  few  days.   This   was undoubtedly  an allegation of a very serious nature,  which, if  true,  would have shaken the entire  confidence  of  the people  in  the electoral process and would  have  seriously impaired our democratic system. in these circumstances  this Court  held  that it was not only necessary  but  in  public interest  that the allegation should be thoroughly  examined so  as  to  maintain  confidence of  the  people.   In  this connection, Hegde, J., while delivering the judgment of  the Court, observed as follows :               "It is true that merely because someone  makes               bold and comes out with a desperate allegation               that  by  itself  should not be  a  ground  to               attach  value to the allegation made.  But  at               the  same time serious allegations  cannot  be               dismissed summarily merely because they do not               look  probable.  Prudence requires a  cautious               approach  in  those  matters.   In  all  these               matters,  the court’s aim should be to  render               complete   justice   between   the    parties.               Further, if the allegations made raise  issues               of   public  importance,  greater   care   and               circumspection is necessary.

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             These  cases have peculiar features  of  their               own.   No such case had come up  for  decision               earlier.  Hence decided (1)  [1972] 2 S.C.R. 177.                             208               cases can give little assistance to us.  In  a               matter  like  allowing  inspection  of  ballot               papers,  no rigid rules have been  laid  down,               nor  can  be laid down.  Much depends  on  the               facts  of each case.  The primary aim  of  the               courts  is to render complete justice  between               the  parties.   Subject  to  that   overriding               consideration,  courts  have  laid  down   the               circumstances that should weigh in granting or               refusing inspection.                ............  The ratio of that  decision  is               that the inspection of ballot papers should be               allowed only when               the  court thinks that it is necessary in  the               interests of justice to do so.  In. that  case               this Court did not lay down any hard and  fast               rule  as to when an inspection of  the  ballot               papers can be allowed." In  the  instant  case, however, the allegations  are  of  a different  kind.   They  relate  only  to  the  mistakes  in counting and improper rejection of votes.  They are not of a sweeping pattern as in the case aforesaid. In  these circumstances, therefore, the ratio laid  down  in Sashi Bhushan’s case (supra) cannot be pressed into  service for  the  purpose  of supporting the order  of  the  learned Judge. In  the  case  of Sumitra Devi (supra),  Mathew,  J.,  after reviewing  the previous authorities of this Court,  held  as follows :               "In  the case at hand, the allegations in  the               election petition were vague and the  petition               did  not contain an adequate statement of  the               material  facts.  The evidence adduced by  the               appellant to prove the  allegations was  found               unreliable.  No definite particulars were also               given in the application for inspection as  to               the   illegalities   alleged  to   have   been               committed  in  the  counting  of  the   ballot               papers.   A recount will not be granted  as  a               matter  of  right  but only on  the  basis  of               evidence  of good grounds for  believing  that               there has been a mistake in the counting.   It               has to be decided in each case whether a prima               facie ground has been made out for ordering an               inspection." In  S. Baldev Singh v. Teja Singh Swatantar (dead) &  Ors(1) Krishna Iyer, J., remarked as follows :               "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   the   qualms  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               reason  to reverse its  elaborately  discussed               conclusions,  and  the relief of  recount  was

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             rightly rejected." (1)  Civil Appeal No. 233 of 1973 decided an 24-1-1975. 209 In  Beliram  Bhalaik  v. Jai Beharl Lai  Kachi  and  Anr.(1) Sarkaria J., speaking for the Court, observed as follows :               "Since an order for a recount touches upon the               secrecy  of the ballot, it should not be  made               lightly or as a matter of course.  Although no               cast iron rule of universal application can be               or has been laid down, yet, from a beadroll of               the   decisions  of  this  Court,  two   broad               guidelines  are discernible : that  the  Court               would  be justified in ordering a  recount  or               permitting  inspection  of the  ballot  papers               only where (i) all the material facts on which               the allegations of irregularity or  illegality               in   counting   are   founded,   are   pleaded               adequately in the election petition, and  (ii)               the  Court/Tribunal  trying  the  petition  is               prima facie satisfied that the making of  such               an  order is imperatively necessary to  decide               the  dispute and to do complete and  effectual               justice between the parties." In Suresh Prasad Yadav v. Jai Prakash Mishra & Ors.(2) while summarising the principles laid down by this Court from time to time in granting prayer for inspection of ballot  papers, the  Court adumberated the circumstances in which  a  prayer for  inspection  of ballot papers could  be  considered  and observed as follows :               "Before dealing with these contentions, we may               recall,  what this Court has repeatedly  said,               that  an order for inspection and  recount  of               the  ballot papers cannot be made as a  matter               of  course.  The reason is  twofold.   Firstly               such  an  order  affects the  secrecy  of  the               ballot  which  under  the law  is  not  to  be               lightly  disturbed.  Secondly, the Rules  pro-               vide  an elaborate procedure for  counting  of               ballot  papers.   This procedure  contains  so               many statutory checks and effective safeguards               against   trickery,  mistakes  and  fraud   in               counting,   that  it  can  be  called   almost               foolproof.  Although no hard and fast rule               can be laid down, yet the broad guidelines, as               discernible from the decisions of this  Court,               may be indicated thus               The  Court  would be justified in  ordering  a               recount of the ballot papers, only where :               "(1)   the   election-petition   contains   an               adequate  statement of all the material  facts               on  which the allegations of  irregularity  or               illegality in counting are founded;               (2)   On  the basis of evidence  adduced  such               allegations   are  prima  facie   established,               affording  a  good ground for  believing  that               there has been a mistake in counting; and               (3)   The  Court trying the petition is  prima               facie satisfied               that   the   making  of  such  an   order   is               imperatively (1)  A.I.R. 1975 S.C. 283. (2)  A.I.R. 1975 S.C. 376.                             210 necessary  to  decide  the dispute and to  do  complete  and effectual justice between the parties."

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These  principles  were reiterated in Chanda  Singh  v.  Ch. Shiv Ram Varma and others,(1) where speaking for this Court, Krishna Iyer, J., observed thus               "On  all  hands,  it is now  agreed  that  the               importance  of the secrecy of the ballot  must               not  be lost sight of, material facts to  back               the  prayer for inspection must be bona  fide,               clear and cogent and must be supported by good               evidence.   We would only like to stress  that               in   the   whole  process,  the   secrecy   is               sacrosanct and inviolable except wherestrong               prima  facie  circumstances  to  suspect   the               purity,propriety   and  legality  in   the               counting  is  made  out  by  definite  factual               averments,  credible  probative  material  and               good  faith in the very prayer.  We  may  even               say that no winning candidate should be afraid               of  recount  and, conditions as  they  are,  a               sceptical  attitude expecting  the  unexpected               may  be  correct, informed of  course  by  the               broad legal guidelines already set out." Lastly  in Ch.  Manphul Singh v. Ch.  Surinder Singh(2)  the Court upheld the order of the High Court allowing inspection of ballot papers because the High Court had given a  finding that  the evidence of the witnesses was sufficient to  prove the  allegation of impersonation, in that case.   The  Court further held that the High Court did not act arbitrarily  in granting the prayer for inspection. Thus  on  a close and careful consideration of  the  various authorities  of this Court from time to time it is  manifest that the following conditions are imperative before a  Court can grant inspection, or for that matter sample  inspection, of the ballot papers :               (1)   That  it  is important to  maintain  the               secrecy of the ballot which is sacrosanct  and               should  not  be  allowed  to  be  violated  on               frivolous, vague and indefinite allegations;               (2)   That  before inspection is allowed,  the               allocations made against the elected candidate               must  be  clear  and  specific  and  must   be               supported  by adequate statements of  material               facts;               (3)   The Court must be prima facie  satisfied               on  the  materials produced before  the  Court               regarding  the truth of the  allegations  made               for a recount;               (4)   That   the  Court  must  come   to   the               conclusion  that in order to grant prayer  for               inspection  it is necessary and imperative  to               do full justice between the parties;               (5)   That  the  discretion conferred  on  the               Court should not be exercised in such a way so               as to enable the (1) AIR 1975 SC 403. (2) AIR 1975 SC 502. 211               applicant to indulge in a roving inquiry  with               a  view  to fish materials for  declaring  the               election to be void; and               (6)   That  on  the special facts of  a  given               case         sample inspection may be  ordered               to  lend further assurance to the prima  facie               satisfaction of the Court regarding the  truth               of the allegations made for a recount, and not               for the purpose of fishing out materials.

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If all these circumstances enter into the mind of the  Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper. In  the  instant case we find that the learned  Judge  while passing  the order of sample inspection made no  attempt  to apply  the  principles mentioned above to the facts  of  the present  case.   What is more important is  that  the  Court actually  noticed  some of the important decisions  of  this Court which we have discussed and yet it did not try to test the  principles laid down on the touchstone of  the  allega- tions  and  the material facts pleaded  by  the  respondent. Another  error into which the learned Judge had  fallen  was that  he did not realise that by allowing sample  inspection he had provided an opportunity to the respondent to  indulge in  a  roving  inquiry in order to  fish  out  materials  to justify his plea in order to declare the election to be void a course which has been expressly prohibited by this  Court, because it sets at naught the electoral process and causes a sense  of  instability  and  uncertainty  amongst  the  duly elected  candidates.  Thirdly, while the learned  Judge  has observed  that  the  Court must  be  prima  facie  satisfied regarding the truth of the materials, but it did not  choose to  record  its  satisfaction  on  the  application  of  the respondent at all and has readily accepted the suggestion of the  respondent for sample inspection on the ground that  it was necessary for the ends of justice.  Such an approach, in our opinion, is legally erroneous.  While indicating in  his order  that  both the parties had produced  some  affidavits before him in support of their pleas, the learned Judge  has not  at all tried to appreciate or consider the evidence  in order to find out whether it was worthy of credence.  In the absence  of any such finding it was not open to the  learned Judge to have passed an order for sample inspection just for the asking of the respondent. Finally  there  were intrinsic circumstances  in  this  case which  went to show that unless the respondent was  able  to place  cogent  materials this was not a  case  for  allowing sample  inspection at all. in the first place  although  the counting  agents of the respondent were present at the  time when the votes were counted no application for a recount was made  under r. 63 of the Conduct of Election  Rules,’  1961. The nature of the allegations made by the respondent in  his petition  as  alluded to above was such as could  have  been easily verified at the spot by the Returning Officer, if his attention  was drawn to those facts by an  application  made under  r.  63  of  the  Conduct  of  Election  Rules,  1961. Secondly  the learned Judge overlooked that  the  respondent had not given the material particulars of 212 the  facts  on  the basis of which he wanted  an  order  for sample inspection of ballot papers.  No serial number of the ballot  paper  was mentioned in the petition  nor  were  any particulars  of  the bundles containing the  ballot  papers which  were alleged to have been wrongly rejected  given  by the respondent.  Even the segment in which the  irregularity had  occurred  was  not  mentioned  in  the  petition.   We, however,  refrain from making any further observation as  to what  would  be  the  effect  of  non-disclosure  of   these particulars  because  we  intend to remit the  case  to  the learned  Judge  for rehearing the matter  and  deciding  the application  for inspection.  What appears to  have  weighed with the Judge is the solitary circumstance that the  appel- lant  had  succeeded  by  a narrow margin  and  that  was  a sufficient  ground for ordering sample inspection.  We  are,

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however,  unable to agree with this broad statement  of  the law by the learned Judge because if a person is duly elected even  by  a narrow margin of votes there is  no  presumption that  there  has  been illegality  or  irregularity  in  the election.  This is a fact which has to be proved by a person who  challenges the election of the duly elected  candidate. After all in a large democracy such as our’s where we have a multi-party  system, where the number of voters is huge  and diverse,  where  the voting is free and fair  and  where  in quite  a few cases the contest is close and neck to neck,  a marginal  victory by a successful candidate ,over his  rival can  sometimes be treated as a tremendous triumph so  as  to give a feeling of satisfaction to the victorious  candidates The Court cannot lightly brush aside the success of the duly elected candidate on an election petition based on vague and indefinite allegations or frivolous and flimsy grounds. The  learned counsel for the respondent submitted,  however, that in view of the amended provisions of the Representation of the People Act and the rules made thereunder the question of  maintenance of secrecy has now become obsolete,  because under the present system which was in vogue at the time when the  election of the appellant was held it is  difficult  to find out as to which voter voted for the candidate.  It  is, however, conceded by the learned counsel for the  respondent that  if  the  counter-foils  which  are  scaled  and   kept separately are made to tally with the ballot papers, then it can be ascertained with some amount of precision as to which voter voted for whom.  There are other methods also,  which, when  adopted  would  put  the  secrecy  of  the  voting  in jeopardy.   In these circumstances, therefore, the  question of maintenance of secrecy does not become obsolete as argued by Mr. Garg appearing for the respondent.  We have  adverted to  a  long course of decisions of this Court where  it  has been  insisted  on  the maintenance of the  secrecy  of  the ballot  and the new methodology adopted by the Act  has  not made any material change in this concept. Lastly  it was submitted by the counsel for  the  respondent that the learned Judge had to satisfy himself whether or not a case had been made out for allowing sample inspection  and if  he  had exercised his discretion one way or  the  other, this   Court   should  not  lightly  interfere   with   that discretion.  This argument, however, is wholly untenable for the reasons we have given in holding that the order of the                             213 learned  Judge  is  not in accordance  with  the  law.   The learned  Judge  has not at all applied the  principles  laid down  by this Court in the cases referred to above.   It  is manifest  that the Court has the undoubted power  to  (,rant prayer  for  inspection,  but  this  discretion  has  to  be exercised  according to the sound and sacrosanct  principles laid  down  by  this  Court.   In  the  instant  case,   the discretion  has  been exercised by the learned Judge  in  an arbitrary manner without the application of the mind to  the material facts and circumstances as discussed above. For the reasons given above, we allow this appeal, set aside the order of the learned Single Judge of the Allahabad  High Court  dated December 20, 1974 and remand this case  to  the learned  Election Judge for disposing of the application  of the  respondent  for  inspection of  the  ballot  papers  in accordance with the law and in the light of the observations made above.  The appellant will be entitled to his costs  in this Court. P.H.P.                  Appeal allowed. 214

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