Civil Appeal No 208 of 1973
From the Judgment and order dated the 25th September 1973 of the Patna High Court in Election Petition No 4 of 1972
K K Prasad K K Sinha and section K Sinha for the appellant
K P Varma D P Mukherjee and D Goburdhan for respondent No 1
U section Prasad for respondent No 3
The Judgment of the Court was delivered by SARKARIA J
Election from 168 Katoria Bihar Legislative Assembly Constituency took place in March 1972
The poll was held on March 11 1972 and the votes were counted on March 12 1972
Respondent No 1 herein an independent candidate  as declared elected having secured 16649 votes as against 16074 polled by the appellant a nominee of Indian National Congress R
There were three other candidates Respondents 2 to 4 who secured 2347 8001  1542 votes respectively
The votes rejected as invalid were 1219
On April 14 1972 the appellant filed an election petition under the Representation of the People Act 1951 challenging the election of the returned candidate on the ground that several irregularities and illegalities were committed in the counting of votes
The petition was resisted by the returned candidate
The High Court framed issues recorded the evidence produced by the parties 23 and held that the allegations had not been substantiated
It declined the request for a recount and dismissed the petition
Hence this appeal by the petitioner
Mr Prasad learned Counsel for the appellant contends that the following irregularitiesillegalities in the counting had been established  1 Four unauthorised persons viz Ajudhya Prasad Singh Q M Zaman Parvez Ahmed and Radhey Sham Sah were allowed to work as Counting Supervisors at tables 4 5 7 and 9 in breach of the rules and this had vitiated the counting
2 In the first round of counting at table No 4 in the box relating to polling station No 74 Madhopur UP School 50 unsigned ballot papers were found in excess of those actually polled
When this was detected and brought to the notice of the Assistant Returning officer he in violation of Rule 931 of the Conduct of Election Rules for short called the Rules and to cover up the irregularity opened that packet and inspected those unused ballot papers
3 The detailed result sheet which was inter alia prepared tablewise in accordance with the instructions of the Election Commission has been deliberately suppressed to prevent detection of mistakes and manipulations made in the counting
4 About 600 700 uncounted ballot papers in bundles were kept below his table by the Assistant Returning Officer
In the final round of counting despite protest 600 votes were counted twice in favour of Respondent No 1
That was why the petitioner who at the end of the third round was leading by a margin of 2205 votes was shown having lost by 575 votes to Respondent No 1 notwithstanding the fact that in the last round there were only 3800 ballot papers to be counted
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 two fold
Firstly such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed
Secondly the Rules provide 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 fool proof
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 statements of all the material facts on which the allegations of 24 irregularity or illegality in counting are founded 2
On the basis of evidence adduced such allegations are believing that there has been a mistake in counting prima facie established affording a good ground for and 3 the Court 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
The contentions advanced in this case are to be tested in the light of these principles
Since on the whole we agree with the findings and the conclusion of the court below we will confine the discussion to the broad features of the case and the legal aspects of the contentions canvassed before US
The first contention is that four unauthorised persons were allowed to act as Counting Supervisors at tables Nos 4 5 7 and 9
The argument proceeds that the list of all the persons who were appointed as Counting SupervisorsCounting Assistants was summoned from the office of the District Election Officer and in response thereto the list exhibit 6 has been produced
It is argued that since the names of Ajudhya Prasad Singh Q M Zaman Parez Ahmed and Radhey Sham Sah do not find mention in Exh 6 they were never appointed to act a  Counting Supervisors
In this connection reference has been made to the application filed on April 14 1972 by the petitioner for summoning documents the list exhibit 6 and the Check Memos exhibit C3 exhibit C4 exhibit C6 and exhibit C8
The Check Memos show that the aforesaid persons actually supervised the counting at tables Nos 4 5 7 and 9
It may be noted that there is not even an oblique hint in the election petition that any unauthorised person was allowed to act as Counting Supervisor or Counting Assistant
Such an allegation was made for the first time in the application dated 3 7 1973
This application seeking a recount was made at the stage of final arguments after the parties had closed their evidence
It is true that in cross examination the Returning Officer and the Assistant Returning Officer were questioned by the Counsel for the petitioner with regard to the authorisation of these persons to act as Counting Supervisors
But that could hardly constitute an adequate notice to the Respondent of this new plea which was sought to be smuggled into the case in a questionable manner at the belated stage
The Respondent could be justified in assuming that the evidence on this plea which was not even faintly adumberated in the petition nor put in issue would not be looked into by the Court
In any case at that stage the Respondent had no opportunity or right to produce evidence to show that apart from the list
6 there was other record showing that the aforesaid persons were duly appointed by the Returning Officer to act as Counting SuperviSors
25 Be that as it may it has not been shown that these four persons who took part in the counting were unauthorised persons
It is not disputed that the are all Government officials
The mere fact that their names do rot appear in Exh
6 does not exclude the probability of their having been appointed and kept in reserve by a separate order or orders to act as Counting Supervisors in case of need
That such appointments were made and a waiting list of such appointees in reserve was prepared is clear from the answer that the Returning Officer RW 14 Mr Sinha gave to a Court question If an officer of this list did not turn up in time to participate in the counting then in his place another officer had to be appointed from the waiting list that was maintained in my office regarding this matter
That waiting list contained the names of officers reserved whose services were to be utilised in case any of the appointed officer did not turn up or  as subsequently exempted from working as such inside the counting hall
 In reply to a further question put by the petitioner s Counsel the Returning Officer reiterated There was a reserved list like this in my office regarding this matter which had been prepared under my orders The fact that such a list of officials in reserve was prepared and exists receives further support from the evidence of RW 18 and RW 19 who had worked as Counting Supervisors at tables Nos 6 and 3
respectively
The petitioner appeared in the witness box as PW 19 on 7 5 1973
Even then he did not make any allegation that any unauthorised persons had been admitted into the Counting Hall
His Chief Counting Agent who appeared as PW 13 also did not allege anything of this kind
The circumstances of this case fully attract the maximum omnia praesumuntur rite esee acta and it would be presumed that the aforesaid four persons were rightly and regularly appointed and admitted into the Counting Hall to act as Counting Supervisors by the Returning Officer
On this score no violation of Rule 53 or any other statutory provision has been shown
Now we turn to the second contention of Mr Prasad
The argument is that at the first round of counting in the box of Polling Station No 74 Madhopur fifty unsigned ballot papers were found in excess of those polled
This irregularity it is submitted was brought to the notice of the Returning Officer by Prof Yadav the Chief Counting Agent of the appellant but to no avail
Part I of exhibit 4 is the Ballot Paper Account sent by the Presiding Officer of Polling Station No 74
Its Part 11 contains the result of the initial counting of those ballot papers at table No 4
In Part 1 in column No 2a the number of unused ballot papers is shown as 397 and in column 3 the number of ballot papers issued to voters is given as 323
In Part 11 column 1 the total number of ballot papers found 26 in the ballot box used at the polling station is entered as 373 and in column 2 captioned Discrepancy if any etc  it is written Found fifty excess including one ballot paper unsigned
The entries in columns 1 and 2 of Part II purport to bear the signature of the Counting Supervisor R Shyam Sah who was not examined by either side
It is common ground that when this discrepancy was brought to the notice of the Assistant Returning Officer and the Returning Officer the sealed packet of the unused ballot papers was opened and the papers were counted
The result of that count is to be found noted on the back of exhibit 4 by the Assistant Returning Officer thus  On verification by counting the actual number of unused ballot papers by opening the statutory packet in presence of the Returning Officer and the candidatesagents it was found that only 347 unused  ballot papers have been returned
This settles the discrepancy in the ballot paper account
 Under it is the endorsement of the Returning Officer to the effect This was done by AR O in my presence
 The Assistant Returning Officer stated in the witness stand as RW 13 that in the Ballot paper Account the total number of unused ballot papers was wrongly shown as 397 while it should have been 347 which was the actual number of ballot papers found in the packet
Thus the physical verification revealed that this apparent discrepancy did not actually exist
The court below has accepted the genuineness of the endorsements of the Assistant Returning Officer RW 13 and the Returning Officer RW 14 on exhibit 4 and the evidence of those officers in preference to the interested statements of the Counting Agent PW 9 and the Chief Counting Agent PW 13 of the petitioner
It has also found that only one unused ballot paper was found unsigned and not fifty
We have no good reason to differ from those findings
Indeed the main burden of the arguments of Mr Prasad is that the Assistant Returning OfficerRetarning Officer was not competent to open the packet of unused ballot papers and inspect the same as such a course was expressly forbidden by Rule 93 1 of the Rules
It is stressed that this illegality vitiating the counting was itself a good ground for ordering a recount
Rule 93 reads Production and inspection of election papers 1 While in the custody of the district election officer or as the case may be the returning officer a the packets of unused ballot papers with counterfoils attached thereto b the packets of used ballot papers whether valid tendered or rejected 27 c the packets of the counterfoils of used ballot papers d the packets of the marked copy of the electoral roll or as the case may be the list maintained under sub section 1 or sub section 2 of section 152 and e the packets of the declaration by electors and the attestation of their signature shall not be opened and their contents shall not be inspected by or produced before any person or authority except under the order of a com petent court
2 Subject to such conditions and to the payment of such fee as the Election Commission may direct a all other papers relating to the election shall be open to public inspection and b copies thereof shall on application be furnished
3 Copies of the returns by the returning officer forwarded under rule 64 or as the case may be under clause b of sub rule 1 of rule 84 shall be furnished by the returning officer district election officer chief electoral officer or the Election Commission on payment of a fee of two rupees for each copy
For understanding the import and object of Rule 93 it would her appropriate to have a short and swift glance at the scheme of them Rules
Part V of the Rules makes provision with regard to Counting of Votes in Parliamentary and Assembly Constituencies
 It cover
Rules 50 to 66
Part VI relates to Voting at Elections by Assembly Members and in Council Constituencies 
It includes Rules 67 to 70
Part VII provides for Counting of votes at Elections by Assembly Members or in Council Constituencies
It contains Rules 71 to 85
It will be seen that Rule 93 has not been placed in any of the Parts relating to counting of votes
It seems to have been advisedly placed  in Part TX captioned Miscellaneous which in the serial order comes after the Parts dealing with voting and counting of votes
Viewed in the light of the scheme of the Rules and its setting the language of Rule 93 seems to us clear enough to indicate that the custody of the District Election Officer or the Returning Officer spoken of in the Rule is a post election custody
Such an indication is available in the words unused ballot papers which repeatedly occur in this rule
The word unused in the context means that which was made available for use in the election but remained unused in the election
Sub rule 3 of the Rule enables the authorities mentioned therein to issue copies of the returns forwarded by the Returning Officer under Rule 64 or Rule 841 b
The supply of such copies will obviously be a post election function
28 Any other interpretation of Rule 93 and its scope would make it difficult if not altogether impossible for the Returning Officer to perform the various functions and duties enjoined by the rules at the stage of counting
This will be clear from a reference to the other Rules
Take for instance Rule 56 which requires that the ballot papers shall first be taken out from the boxes used in a constituency and mixed together and then arranged in convenient bundles and scrutinised
Subrule 2 of Rule 56 further requires inter alia that if a ballot paper does not bear any mark at all or does not bear both the mark or the signature which it should have borne under the provisions of sub rule 1 of Rule 38 it shall be rejected by the Returning Officer
To perform this duty it would be absolutely necessary for the Returning Officer to inspect such ballot papers
Indeed in the present case in objection was raised that fifty unused ballot papers in the packet did not bear the mark or signature required by Rule 381
The Returning Officer was therefore fully competent to open the packet and inspect and count the ballot papers found therein
Instruction 23 in the Hand Book issued by the Election Com mission also indicates that R 931 operates at a post election stage
Under this instruction the Returning Officer is required to seal the packets of all the papers relating to the election specified in Clauses a b c d and e of R 931 immediately after the counting of the votes is over with his own seal and also with that of the Commission
After the sealing the packets are to be put in a separate steel box which shall be locked with two locks and each lock shall be sealed
Immediately after the declaration of the election results the sealed box is to be despatched to the District Election Officer who on receipt of the same shall forthright deposit it in safe custody in the Treasury under double lock
The key of one of the locks is entrusted to the Treasury Officer
In Union Territories such a deposit is to be made by the Returning officer
The secret seals of the Commission are returned immediately after their required use
Thus it is clear that the custody contemplated by Rule 931 is the post election custody
In the light of the above discussion the conclusion is inescapable that the act of the Returning Officer in opening
the packet and in inspecting and counting the unused ballot papers found therein far from amounting to an illegality was necessary for the due performance of the duty enjoined on him by the Rules
Accordingly we overrule this contention
It is urged that the detailed result sheet prepared candidatewise table wise and roundwise from which figures mentioned in the final result sheet Exh 7 were extracted has been deliberately withheld to prevent detection of the hanky panky done in the counting
Such a detailed result sheet it is maintained was required to be prepared and was admittedly prepared under instruction No 17q in the Hand Book for Returning Officers 1970 issued by the Election commission
The contention appears to be attractive but does not stand a close examination
29 Instruction 17q in the Hand Book runs thus Side by side the work of tabulating the result of counting shall be done
The Check Memos duly signed by the Returning Officer shall be passed on to an officer seated at a separate table near the Returning OfficerAssistant Returning Officer
This officer shall fill in the result of counting of each round of each table in Form 20
It is desirable that a separate sheet for each round is used for the purpose
Copies of Form 20 may be printed cyclostyled or type written
The entries in the form should be made on loose sheets prepared for the purpose
A copy of Form 20 is at Annexure XIII
 A perusal of Form 20 prescribed under rule 567 of the Rules would show that it does not require that the final result sheet should be prepared tablewise also
It is sufficient if the final result sheet is candidate wise and round wise
The final result sheet Exh 7 exactly conforms to the prescribed Form 20
The Assistant Returning Officer RW 13 in cross examination said  On the above table where the entries used to be made in the result sheets from the check memos those entries were made candidate wise table wise and round wise
The figures of total votes of the different rounds of counting as mentioned in this abstract result sheet Exh 7 the witness looks into it were not directly taken from the figures as they found mention in the different check memos of the different tables of the different rounds of counting but from these check memos the figures were first extracted on the detailed result sheet giving their numbers round wise candidate wise and table wise and thereafter those figures were totalled round wise and extracted in this Exh 7
 From the statement of RW 13 extracted above it would appear that at first a detailed result sheet in which figures were tabulated candidatewise tablewise and roundwise was I prepared and then therefrom all the figures exceptingthose showing table wise break up were carried over to the final result sheet Exh 7 drawn up in the prescribed Form 20
This detailed result sheet though summoned is not forthcoming from the District Election Officer might be it hag been misplaced
Might be it was destroyed by the Counting Staff after the preparation of the final result sheet in the prescribed Form
Whatever be the case the absence of that document does not make the checking and verification of the figures entered in the final result sheet Exn 7 impossible or even difficult
Its preparation is not a requirement of any statutory provision
It is prepared only as a matter of convenience in view of the instructions of the Election Commission by carrying over collating and totalling the figures from the Check Memos containing tablewise figures of each round of counting
It is a sort of rough intermediary tabulation intended to facilitate the compilation of the final result sheet in the prescribed form
The basic figures from which the final result sheet whether detailed or abstracted are worked out are 30 given in the Check Memos pertaining to the various counting tables
Such Check Memos are available and indeed reference to some of them namely Exh C3 C4 C6 and C8 was specifically made before us The correctness or otherwise of the figures given in exhibit 7 could easily be verified by tallying the same with the aggregate of those given in the Check Memos
Indeed no argument has been advanced before us that the figures given in the final result sheet exhibit 7 would not agree with the figures taken and totalled from the Check Memos
We therefore repel this contention
This bring us to the last contention
The argument advanced by Mr Prasad is that during the fourth round of counting 600 to 700 unused and uncounted ballot papers in bundles of 25 each were detected by the petitioner s counting agent Jagannath Sah lying under the table of the Assistant Returning Officer
Jagannath Sah protested
The Assistant Returning Officer however put those uncounted ballot papers in the lot of counted votes
PW 13 also on coming to know about it protested against that mixing
In support of this contention Counsel hasreferred to the circumstance that at the end of the third round of counting the appellant was leading by a margin of 2205 votes
It is urged this lead of 2205 votes could not thereafter be turned into a deficit of 575 votes when the total number of ballot papers that remained to be counted in the last round was 3800 only
Like the elusive cloud this ground of objection also has been ever changing its hue and shape
In the application Exh 3 for a recount which was submitted by the petitioner to the Returning officer at 7 pm towards the close of
the final round of counting all that was stated was  It is respectfully submitted that recounting of 168 Katoria Assembly Constituency be done
Because one bundle of 600 votes have been recounted again
All the votes be recounted
 It was not alleged therein even in an embryonic form that 600 uncounted votes in bundles were detected lying underneath the table of the Assistant Returning Officer
Such an allegation appeared for the first time in the election petition which was filed about 33 days after the election
What was earlier said to have been counted twice over  had now become completely uncounted 
What was then alleged in exhibit 3 to have been counted on the table has now gone underneath the table
The original allegation in exhibit 3 which was repeated in the second application exhibit 3a presented at 7 40 pm was manifestly untenable
because if there was double counting of any ballot papers the total of the votes polled should have exceeded by the number doubly counted
No such excess was reflected in the grand total of the final result sheet
The total was correct
The petitioner bad no explanation as to why the grand total of the final result sheet did not show an excess of 600 or any other number of ballot papers
It was mainly for this reason that the Returning Officer had rejected the applications of the petitioner for a recount
That is why the petitioner has now come forward with a changed version invented as an after thought
31 The final result sheet Exh 7 falsifies his present contention also
it shows that at the end of the third round the appellant was leading by a margin of 424 votes only
There is no good reason to doubt the authenticity of the figures given in Exh 7
As against it the notes exhibit 2 Series on which the petitioner relies for his contention that at the end of the third round he was leading by 2205 votes was a self serving and wholly unreliable piece of evidence
These notes Exh
2 series were not mentioned in the list of reliance filed along with the petition
There is no reference to any such notes or their contents in the appli cations Exhs 3 and 3a
These notes are said to have been made by the Counting Agents of the petitioner at the time of counting
But in the initial list submitted by the petitioner on 30 8 1972 for summoning among others his Counting Agents as witnesses it was not mentioned that they would produce any such notes
Subsequently on 28 3 1973 he moved the court requesting that these witnesses be required to bring their notes
In these circumstances the High Court was right in holding that these notes had been subsequently brought into existence for the purpose of this petition
For the foregoing reasons we are of the opinion that the appellant has been unable to make out a good case for a recount of the ballot papers
We dismiss his appeal
He shall pay the costs of Respondent No J VMK Appeal dismissed


Summary:
In the election from 168 Katoria Bihar Legislative Assembly constituency the Respondent No 1 was declared elected having secured 16649 votes as against 16074 polled by the appellant
The votes rejected as invalid were 1219
The appellant filed an election petition challenging the election of the returned candidate on the ground that several irregularities and illegalities were committed in the counting of votes
The petition was resisted by the returned candidate
The High Court framed issues recorded the evidence produced by the parties and held that the allegations had not been substantiated
It declined the request for a recount and dismissed the petition
Hence this appeal by the petitioner
It was contended for the appellant  i Four unauthorised persons were allowed to work as Counting Supervisors at tables 4 5 7 and 9 in breach of the rules and this had vitiated the counting ii When the fact that 50 unsigned ballot papers relating to polling station No 74 were in excess of those actually polled was brought to the notice of the Assistant Returning Officer he in violation of Rule 93i of the Conduct of Election Rules and to cover up the irregularity opened that packet and inspected those unused ballot papers iii The detailed result sheet prepared tablewise in accordance with the instructions of the Election Commission has been deliberately suppressed to prevent detection of mistakes and manipulations made in the counting and iv Despite protest 600 votes were counted twice in favour of Respondent No 1
Rejecting the contentions and dismissing the appeal HELD  The court would be justified in ordering a recount of the ballot papers only where  1 the election petition contains an adequate statements of all the material facts on which the allegations of irregularity or illegality in counting are founded
2On 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 necessary to decide the dispute and to do complete and effectual justice between the parties
23H 24A B i There is not even an oblique hint in the election petition that any unauthorised person was allowed to act as Counting Super visor or Counting Assistant
It was made at the stage of final arguments in the application seeding a recount
Questioning the Returning Officer and the Assistant Returning officer in this regard during cross examination could hardly constitute an adequate notice to the Respondent of this new plea
That apart neither the petitioner nor his chief Counting Agent alleged anything of this kind
All the four persons are Govt
Officials
The fact that their names do not appear in exhibit 6 does not exclude the probability of their having been appointed and kept in reserve by a separate order or orders to act as counting Supervisors in case of need
That such appointments were made and a waiting list was prepared is disclosed in the evidence of the Returning Officer and it receives further support from the Evidence of RW 18 22 and RW 19
The circumstances of this case fully attract the maxim omnia praesumuntur rite esse acta and it would be presumed that the aforesaid four persons were rightly and regularly appointed and admitted into the Counting Hall to act as Counting Supervisors by the Returning Officer
On this score no violation of Rule 53 or any other statutory provision has been established
24F H 24A E ii The act of the Returning Officer in opening the packet and inspecting and counting the unused ballot papers found the rein far from amounting to an illegality was necessary for the due performance of the duty enjoined on him by the Rules
The language of Rule 93 is clear enough to indicate that the custody of the District Election Officer or the Returning Officer spoken of in the Rule is a postelection custody
Indeed in the present case an objection was raised that fifty unused ballot papers in the packet did not bear the mark or signature required by Rule 381
The Returning Officer was therefore fully competent to open the packet and inspect and count the ballot papers found therein
28F C iii The absence of a detailed result sheet showing tablewise figures of each round of counting does not make the verification of the figures collated in the final result sheet drawn up in Form 20 impossible or even difficult as such figures can always be checked with the aid of Check Memos which contain tablewise figures of each round
29G H iv In the application for a recount submitted to the Returning Officer the appellant alleged that 600 votes constituting one bundle have been recounted again
But it was not alleged therein even in an embryonic form that 600 uncounted votes in bundles were detected lying underneath the table of the Assistant Returning Officer
Such an allegation appeared for the first time in the election petition filed 33 days later
The original allegation was untenable because such an excess was not reflected in the grand total of the result sheet
The total was correct
The result sheet falsified the subsequent contention also which had been put forward as an afterthought
30F H