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CASE NO.: Appeal (civil)  9228 of 2003

PETITIONER: Janak Singh

RESPONDENT: Ram Das Rai & Ors.

DATE OF JUDGMENT: 11/01/2005

BENCH: CJI G.P. Mathur & A.K. Mathur

JUDGMENT: J U D G M E N T  

A.K. MATHUR, J.

       The appeal  is directed against the order passed by the Learned Single  Judge  of the Patna High Court dated September 26, 2003 wherein the  Election Petition filed by the appellant was dismissed  with costs of Rs.  1000/-.  Hence, the present appeal has been filed by the appellant election  petitioner against  the aforesaid order.

       The appellant  was  a contesting candidate in the State Assembly  General Election from 38 Saraiya Assembly Constituency  which took place  on 17th February, 2000.   In that election the appellant lost the election and  the respondent No. 1 Ram Das Rai was declared elected.  Therefore, the  appellant  filed   the petition challenging the aforesaid election  on the  various grounds i.e.  non-compliance of   provisions of Act  and Rules and   also non-compliance of the  directions given by the Election Commission of  India.   But the main ground of challenge was  miscounting of ballot papers  resulting in not counting the valid votes cast in his favour.  The difference   of votes between the  election petitioner and the returned candidate i.e.  respondent No. 1 was only 265 votes.    Therefore, the appellant prayed that  the election petition should be allowed and he should be declared as an  elected candidate.

       According to the polling schedule the last date for filing the  nomination paper was January 31, 2000,  the date of scrutiny was February  1, 2000, the last date for withdrawal of  candidature was February 3, 2000  and the date of polling was February 7, 2000. (But the actual polling was  held on  February 17, 2000.)  17 candidates were  in the fray after scrutiny  and withdrawal of the candidates. The appellant Janak Singh was  the  official candidate of Bharatiya Janta Party having a symbol of  Lotus. The  returned candidate Ram Das Rai was an  official candidate of Rastriya Janta  Dal having a symbol of  Lantern.  Five other candidates were from All India  Political Parties and they were having their official symbols.   Nine of the  candidates were independent and they were  given the symbol of their  choice. The actual polling took place on February 17, 2000 from 8.00 a.m. to  5.00 p.m.  The elected candidate Ram Das Rai received 40,680 votes  while  the appellant Janak Singh received  40415 votes .  It was  alleged that  the  returning officer was not fair and impartial  because respondent No. 1 Ram  Das Rai the elected candidate was a Minister in the State Government at the  relevant time   and  all illegal means were adopted  to ensure the  victory of   this candidate.   It was alleged  that S.D.O. Marharwah was appointed  as a  returning officer at the  instance of Respondent No. 1 to ensure his victory  and  the returning officer was asked to choose his own Assistant  Returning  Officer for  alleged purpose.   It was also alleged that  counting  staff was  never approved by the  District Election Officer they were  all Assistants of   the office of the S.D.O.   It was alleged that  respondent No. 1 manipulated   through the returning officer in deployment of military and para-military  forces at different polling booths.   It was alleged that there was no fair

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polling in respect of several booths  and particularly in booth nos. 105, 106,  107, 225 and 249 as the ballots in those booths did not bear signature and  seal of the  Presiding Officer and the distinguishing marks of the  booths.   As regards the booth nos.  175 and 176, the first information report was  received that respondent no. 1 had forcibly snatched away arms and  ammunition of police personnel in order to commit rigging during the polls.  However, all the illegalities  committed by respondent no. 1 were informed  by  Fax message to the  Election Commission of India and to other  appropriate authorities.

       It was also alleged that there was a great bungling in miscounting the  votes inasmuch as votes of respondent No. 1 have been increased on false  pretext of excess votes between votes polled and votes counted  at the  counting table.  It was also alleged that the votes of the appellant have been  reduced on false pretext of less number of ballot papers  found in the ballot  boxes than what had been polled. Certain illegalities were  also alleged with  regard to booth Nos. 249, 67, 32, 56 and 194.

       The illegality in counting was alleged in respect of table Nos.  2, 3, 4,  7, 8, 9,  and 12 in the 14th , 15th, 16th, 17th and 18th round of counting.   As a  result  of which 700 votes were illegally counted in favour of respondent no.  1.   The other illegalities  pointed out  were  that markings against  two  names of the candidates and 100 ballot papers which were totally  blank  have been counted in favour of respondent no. 1 and the other ballot papers  illegally rejected a chart thereof was given in para 27 and 28 of the election  petition. In para 29 of the election petition a detail of  2379 invalid votes  counted in favour of the  respondent no. 1 were given.  A separate chart was  also  annexed as Annexure-5 and  Annexure -5A.    It was also alleged that  on 26th February, 2000 in course of counting a petition for recounting was  filed under Rule 63 of the Conduct of  Election Rules, 1961.  But no  recounting was held.   It was also mentioned that  the Election Commission  stayed the declaration of the result and asked for explanations  from   returning officer and on getting distorted reply and suppressing of material  fact the Election Commission gave  permission to the returning officer to  declare the result.    It was also  alleged that before the result was declared  the appellant gave representation to the  returning officer enumerating  various irregularities and illegalities committed  but all the efforts of the  election petitioner proved futile. Under these circumstances the present  election petition was filed.          The respondent No. 1 filed written statement denied  the allegations   and  an objection was also raised that the material particulars   were not  given  as  required under Section 83(2) of the Act,  and the petition  was  liable to be dismissed under Section 87 of the Act read with Order 6 Rule 16  of the Code of Civil Procedure.

       It was also alleged that the election was peaceful and counting was  done in orderly manner, all the allegations are nothing but concocted and  imaginary.   

On the basis of  these allegations, the learned single Judge framed the  following four issues which reads as under:

1.      Whether the election petition, as filed, is maintainable in its  present form?

2.Whether the election is liable to be rejected      for non-    compliance of Sections 81, 82, 117 and Section 83 of the  Representation of  People Act ?

3.      Whether the election is liable to be rejected  for non- compliance of  Sections 81, 82, 117 and Section 83 of the  Representation of People Act ?

4.      Whether the irregularities and illegalities, as alleged in the  election petition with its Annexures make a case of  recounting

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of ballots?

5.      To what relief, if any, the election petition can be granted.

The appellant examined 11 witnesses and got large number of  documents exhibited.  The returned candidate, respondent No. 1, Ram Das  Rai examined 12 witnesses including himself as PW-10.  He  also got  number of  documents  exhibited.  

Learned single Judge  reviewed the testimony of all the witnesses and  held that petitioner has failed to   substantiate the allegation and dismissed  the petition with costs.  Hence, the present appeal.  

Summary of evidence and  its analysis         PW-1, Janak Singh,   the election petitioner examined himself, he  pointed  out defects in the counting but  he had no direct knowledge as he  was only informed by the counting agent.  The case of the  appellant was not  substantiated by the testimony of PW-1.  However,  PW-2  Pravin Kumar  Singh  was the counting  agent of  the petitioner at table No.1.  According to  him 7 votes  were received in the 13th around of counting in favour  of   appellant Janak Siingh but the same was reduced  by  one vote at the central  table.    Likewise, PW-3 Ranjit Kumar Singh  he was  a counting agent of  the appellant at table No. 2. He alleged that the booth No. 2  which was   counted on his table wherein 701 total number of votes were  caste in favour  of  Janak Singh but  at the central table 541 votes  were counted in his  favour.  In respect of booth No. 30 ,  229 votes out of  690 votes were  received by Janak Singh.   Ultimately  it was shown to have received only  226 votes.   He  also alleged with regard to reduction of votes in respect of   12th, 17th and  18th  rounds.   He only stated by his  memory but  he had not  prepared any notes.  PW-4  Mukesh Kumar Singh, he was a counting agent  of  independent candidate Jalim Singh.  He  was at table No.  6.   According  to him  at Booth No. 20, Janak Singh received 71 votes but at  central table   only 10 votes were shown in favour of Janak Singh.  The actual votes  received by Janak Singh were  reduced at central table.   Likewise, he was  given reduction of votes in respect of  booth nos. 48, 62, 160, 174, 188 and  201.   Similarly PW-5  Sanjeev Ranjan he was also a counting agent of   Jalim Singh with regard to counting  table  No. 7.   The  same story was  repeated by PW-6,  Alok Ranjan  was the counting agent of Jalim Singh.   Similarly, PW-7  Sunil Sinha another counting agent of Jalim Singh had also  alleged  the  some reduction.   PW-8,  Upendra Singh was the  counting  agent of election petitioner at table no. 7.  He deposed  that  several ballots  were not having signature and seal of the presiding officer and  distinguishing mark of the booth concerned were missing but they were   illegally counted in favour of  respondent no. 1, he also deposed that number  of  votes of the appellant were reduced at the central table.  PW-9,  Badri  Narayan Singh was a counting  agent of Jalim Singh at table No. 9 had also  deposed  the same thing.   PW-10 Sailendra Kumar counting agent of Janak  Singh at table No. 4  had also deposed certain facts  as to how the votes of  Janak Singh were  reduced at the central table.  PW-11 Chandrika,  the  counting agent of  independent candidate  Mr. Bikari Sah  had also deposed   as to how the votes of  Janak Singh were reduced at the central table.

       The  summary of this oral deposition shows that large number of  witnesses produced  by petitioner, namely,   PW-4, 5, 6, 7, 9 and 10  were   not his counting agents but of Jalim Singh,  they had nothing to do with the  election petitioner Janak Singh but they had come forward to oblige the  appellant  in making the allegation that Janak Singh’s  votes were reduced at  the central table. Likewise, PW-11 Chandrika was a counting agent of   candidate Mr. Bikari Sah  he also came  in witness box to oblige the election  petitioner. No objection was raised by counting agent of Janak Singh  petitioner at central table.

           A scrutiny of aforesaid oral evidence  shows that the appellant  himself  or his counting agent could not make out a case  that the votes  which were caste in favour of the election petitioner were counted  less or  

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had been reduced in such a way  that it could materially affect the result of  the election petition.  As against this the respondent no. 1,  the returned  candidate Ram Das Rai examined 12 witnesses including himself as DW-10,   he alleged that there was no illegality in the conduct of  election and all the  votes which were caste in favour of the candidates were duly counted.     There was some arithmetic error  regarding difference of votes in Form Nos.  16(1)  and 16(2)  and  that was corrected.   

       DW-10/a, the Returning Officer  also  came in  witness box and  deposed that he conducted the counting impartially and no illegality was  committed. He deposed that all allegations made by  the election petitioner  were frivolous and baseless.  It  was also alleged that when the counting was  over the election petitioner was pressing  for recounting and  for the  recounting  he  consulted the election observer and  also with the Election  Commission of India and then he declared its result.   He also alleged that all  the objections raised were duly considered  and rejected  by a reasoned order  in the  order sheet maintained by him.     He was also cross-examined at  length but without any result.  DW-11 Binod Prasad Singh, the Assistant  Returning Officer was also examined and he supported what was deposed by  the DW-10/a,  the returning officer.         From the survey of  the oral testimony, the learned Judge concluded  that there was no irregularity or  illegality  committed by  the Returning  Officer or their  staff in counting.

       The learned Judge also examined  the documentary evidence and after  examination  of the same he found that except arithmetical  mistakes there  was nothing much could be said  in favour of  the election petitioner.   

       The  learned counsel  appearing on behalf of election petitioner  conceded  before learned Single Judge that he does not  want to press  the  allegations in Issue Nos. 1 and 2 with regard to corrupt practice  against the  respondent no. 1 that  he illegally influenced the Returning Officer being a  Cabinet Minister to twist the election in his favour and the learned counsel   confined  to inspection of ballots and declaration of election result.

       However, learned counsel for the respondent tried to raise  an   preliminary objection that the election petition was     not properly constituted  as per  Section 83  of the Representation of the People’s Act.   But all these  objections were  over-ruled by the learned Single Judge.  Learned single  Judge felt that sufficient particulars were already  given in the  petition and  they were supported by large number of documents.   Therefore, learned  single Judge observed that the material facts were present for adjudication.  Therefore,   the requirement of  Section  83(1)(A)  was satisfied.

       Issue No. 3  was pressed by the Learned Counsel for appellant and it  was dealt with at length by Learned Judge because the main allegation was  irregularities and illegalities in the counting of  ballots.  The counting is  regulated by the election rules known as The Conduct of Election Rules,  1961.  The Conduct of Election Rules, 1961  details how the  counting  is to  be undertaken.  Rule 63 of the Act contemplates that if during the course of  counting it is found that ballots are not being properly scrutinized and  counted the objection can be  raised from  the side of the candidates and  that  objection should be raised within the course of counting and  if it is found to  be correct then the returning officer can direct the recounting and after the  recounting is  over  he shall amend the result sheet in Form 20 to the extent  necessary after such re-count and shall announce the amendments so made  by him.     According to sub-rule 2,  the candidate or his agent has a right to  apply for re-count  of votes  either wholly or in part.  Therefore, as per  Rule  63  the re-counting can be ordered provided there are good reasons for it.  Now, in the present case during the course of counting an application was  made to the Election Commission of India as Annexure-5 and marked   as  exhibit-2 wherein it has been stated that  there was difference in signature of  the  presiding Officer on the Ballot papers of  Booth Nos. 105 and 106 and   107,  it  was alleged  that Rastriya Janta Dal  candidate had received  99%   of the votes polled.    In respect  of another two booths  there was another  

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application  as  Annexure-5/A,  although the same could not be produced  in   original   but there was allegation that  there were irregularities in the  signature of the  Presiding Officer of  Booth Nos.225 and 249.  He filed an  another application for recounting   before the Chief Election Commissioner,  New Delhi which was marked as  Ext.1 of Annexure 6  of the Election  Petition wherein grounds raised that the appellant lost the election by a  margin of 265 votes whereas number of  votes rejected  were 2002 and   several votes were  wrongly  declared invalid. It was also alleged that there  was irregularities  in the signatures of the  Presiding Officers  of  Booth Nos.   105, 106, 107 and 225.   But learned Judge found that a new case  was  sought to be developed that huge number of  Ballot papers of Booth Nos.  105, 106, 107 and 225 did not even  bear the  signatures of the Presiding  Officers and  there was no distinguishing marks of the Booths itself which  was not the case when they  filed the petition before the Returning Officer or  the Election Commission of India. The learned Single Judge after examining  the matter found that  the ground which was raised before the Election  Commission of India and the ground which were raised by the appellant  for   recounting before the Returning Officer were different.  But after going  through the matter he observed that the petition in order to substantiate the  case for recount  has to make a definite case with a specific allegation,   before the Returning Officer and thereafter if he  failed, before the Election  Commission.  He  found that grounds sought to be raised before  the  Returning Officer and before the Election Commission were at variance.  He  further observed that if at the time of the counting the election agent raised  objection and  no good reasons were  given by the Returning  Officer for   rejection then  that  could make out a case for recounting  under Section 63  of the Act. But no such case was made out.  Similarly, learned Judge found  that allegation during the trial also were not substantiated by oral or  documentary evidence.

       It was  also alleged  that there was a difference  in signature of the  Returning  Officer in the ballots.   Subsequently, the case put up that the  ballots  did not bear the signature of the Presiding Officer at all and  there  was no distinguishing marks of the Booths in the ballots.  Learned single  Judge found that   the attempt was made to improve  the case  from stage to  stage,  therefore,  allegations lack bonafide and makes it doubtful.  Learned  single Judge has also found that allegations  of missing ballots and double  marking brought out in the election petition but no  such evidence was  lead  in support of the allegations.  Learned single Judge also examined  the  allegations regarding difference of ballots in respect of booth Nos. 32, 56  and 194, but difference was not found to be material.

   Learned single Judge further observed that while examining  the   documents and exhibits  produced by the petitioner in the  Form 20 there    was interpolations. The learned  Judge observed that  there is no scope  of   giving  any relief to the election petitioner moreover there is direct   allegation against petitioner that he alongwith his persons had made  this   interpolations.  The observation made by the learned single Judge in para 29  of the Order does not cast any reflection on petitioner.  He did not examine  the matter in detail with reference to the original records.  Though learned  Judge found that there were some difference in the votes and such difference  was an arithmetic error and it does not materially affect the result of  election.  He also  observed that   Form 20 bears the signatures of the   elections petitioner and  his counting agents and no such objection  was  raised.     Once  a signature of the  election petition or counting agent is   there in  Form 20 which is the  result sheet round-wise prepared then there is  no scope left for a grievance.   Though the appellant, in his examination in  chief had  stated that the signature was obtained by force but in a cross- examination he admitted that he never lodged  any protest or complaint in  this regard before  any officer which definitely suggest that this plea  was  only an after thought.

       Learned Judge also examined the allegation that in some of the ballot  boxes ballots  increased and in some decreased.   Learned  Judge examined  this aspect and found that this discrepancy in number of  ballots can be an

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error    on the part of the presiding officer in  calculating the votes.  But he  found that no allegations were made  that  ballots were increased or   decreased by the  counting agents or counting supervisors and he  further  found  that since there was no such allegation made by the counting agents  nor was there any satisfactory  oral evidence to justify this.   Whereas the  evidence is to the contrary,  ballots of different booths were being opened in  the counting table from the boxes which had a intact seal and signature.    Learned Judge found that this is not  a case of recount and in our opinion  rightly so. Issue No.3 was rightly decided by the learned Judge.   An application was filed  by the other side for  contempt proceedings  being initiated   for  swearing a false affidavit.   That was rejected and  rightly so. The  issue No. 4 was decided against the respondent.                    Suggestions During the course of the arguments before us,  learned counsel has   given certain suggestions for consideration of the Election Commission  in  order to  introduce maximum transparency  and fairness in the election to the  Legislative Assembly and  to the Parliamentary Constituencies  looking to  the irregularities  which has come to the light in this case.  i.      It is suggested  the Election Commission may consider the  increase in the number of the election observers in addition to  what has  been said reported in the   PUCL’s case { 2003(4) SCC 408 }.         ii.     It is also suggested  that  suggestions given by  the  Goswami  Committee should be pursued   that the Election  Commission of India  should be given  the  supervisory powers to deal strictly with the lapses on  the parts of  Returning Officer, if any, on administrative side and also take  disciplinary action against them including their black-listing for future role  in the process of elections. iii.   Some of the observers should be appointed from general public,   the  men of   integrity and independence.          iv   The deployment of Central Para-military Forces should not be   confined to the law and  order situation outside polling booth but some of  them be posted  inside the Polling stations and vote counting centers as well,   so that local  administrative staff cannot  use the powers available to them in  favour of any candidate.   v.      The officials from the department which have less  administrative powers likes employees of Medical,  Education and  Welfare   Departments should be given preference for being deployed on polling  duties as against the deployment of  officials from the rank of administrative  departments   vi.     The installation of  electronic gadget for video recording and   its exhibition, close circuit camera should be installed.  This will minimize   the booth capturing and rigging and intimidation  of voters. vii.      Finally, it is suggested that it shall be open to the contesting  candidates to provide for electronic recording and Video recording of the  process of polling and counting of the votes at their cost wherever they  apprehend  any malpractice in any of the polling and counting centres  as a  safeguard for fair polling and counting of the votes.         These are some of the suggestions which were given by the  learned  counsel for the respondent No. 1.   But before parting with  the case, we  would like to suggest that the Election Commission  should  consider  posting of some personnel of Para-military force inside the polling booth in  addition to   the law and order duty outside the polling booths.  Some   cameras should be installed in the polling  booths to keep  a vigilance  on the  local staff   on duty.   It has  come to our notice  that  sometimes local staff   which    is appointed to conduct the election  become party to the unfair and  illegal  practice.   The para-military staff outside the polling booth maintains  law and order situation outside but what transpires inside the polling  booth  is beyond their reach.  Therefore,   the Election Commission may consider  some measures to  appoint some of the personnel from para-military  force    to be  deputed inside  the polling booth so as  to keep eye on  local  staff who  are entrusted to conduct the election.  This will have     sobering  effect on  staff  that they are  under vigilance of para-military force.

       It has also  come to our notice that the money which is allotted for  the

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conduct of election is  utilized for other purpose that is  other than for the  conducting of the election like  purchasing odd items.  The Election  Commission should insist the State to  utilize  the  amount made available to  them for conduct of election and  for no other purpose.  Some of the  funds  have also been utilized for entertainment of the  election observers.   This  should be  taken care by the Election Commission and  strict instructions  should be given to observers not to accept undue hospitality of State because  that would unnecessarily compromise their objectivity and transparency.  

       In view of the above discussion,  we are of the opinion that the view  taken by the Learned single Judge is correct and there is no ground to  interfere  in this appeal and accordingly the Civil Appeal is dismissed  with  no orders as to costs.