Civil Appeal No 576 of 1975
From the judgment and order dated the 6th March 1975 of the Orissa High Court in EP No 3 of 1974
Somnath Chatterjee and Ratin Das for the appellant
Vinoo Bhagat for the respondent
The Judgment of the Court was delivered by CHANDRACHUD J
 Six candidates contested the mid term election to the Orissa Legislative Assembly from the Nilgiri constituency
The polling was held on February 26 1974 and on March 1 the result of 5 the election was declared
The appellant who contested the election on the ticket of the Communist Party of India Marxists was declared as the successful candidate
According to the results declared on March  the appellant secured 14346 votes while respondent 1 who contested the election on the ticket of the Bharti Lok Dal secured 14297 votes
The other contestants respondents 2 to 5 secured votes ranging between 12 312 and 5961
Respondent 6is the Returning officer
On April 13 1974 respondent 1 filed an election petition under section 81 of Representation of the People Act 1951 hereinafter called the Act challenging the election of the appellant and praying that instead he himself should be declared as the successful candidate
The appellant s election was challenged by respondent 1 on the ground mainly that through an error the Returning officer did not enter the results of the second round of counting on Table No 13 in Form No 20 as prescribed by Rule 567 of the Conduct of Election Rules 1961
It was alleged that instead of incorporating the results of the second round of counting on Table No 13 in Form No 2 the 214 Returing officer wrongly incorporated the results of the second round of counting on Table No 14 in the column meant for the corresponding count of Table No 13
In other words the allegation was that the results of the second round of counting on Table No 14 were erroneously entered twice in Form No 20 once as against the second round of Table No 14 and once as against the second round of Table No 13 The appellant denied this allegation contending that he had secured the largest number of votes and that there was a clear difference of 49 votes between him and respondent No 1
The appellant also raised several other contentions touching the maintainability of the election petition on the ground of non compliance with statutory requirements
on these pleadings the learned Judge of the High Court of Orissa Cuttack who tried the election petition framed 8 issues but they were re cast after the evidence was recorded
Issues Nos 1 to S pertained to the maintainability of the election petition and on these issues the learned Judge found in favour of respondent 1
Those findings are not challenged before us and therefore we must proceed on the basic that the election petition as presented did not suffer from any illegality
Issues Nos
6 to 8 are the ones with which alone we are concerned in this appeal and those issues arise out of the contentions in regard to the entries made by the Returning officer in Form No 20
The ninth issue is consequential Respondent l examined himself and one Khagendranath Naik who was his Counting Supervisor on Table No 13
On behalf of the appellant an election agent and a counting agent of his were examined as witnesses
Neither party examined the Returning officer nor indeed did the Returning Officer who was respondent 6 to the petition offer to give evidence on the question as to whether the results of the second round of counting of Table No 14 were erroneously entered as against the corresponding column of Table No 13
During the hearing of the petition the learned Judge inquired of the parties whether they were agreeable to a recount being taken of all the ballot papers
Counsel appearing for the appellant and respondents 1 and 2 agreed to the course suggested by the learned Judge
Respondents 3 to 5 who had contested the election but were defeated did not appear at the trial nor indeed did the Returning officer
On February 3 1975 the learned Judge passed an order directing that the entire ballot papers should be recounted
The ballot papers were accordingly sent for
Twenty one sealed trunks were received by the court and the recounting was done by the Deputy Registrar of the High Court in the presence of the counsel for the contending parties
After the recount was taken the Deputy Registrar submitted a detailed report which was made a part of the record under an order passed by the learned Judge on February 21 1975 215 In view of  the fact that the findings recorded by the learned Judge in favour of respondent 1 on issues 1 to 5 are not challenged before us
 the only question for decision is whether respondent 1 has discharged the onus of proving that the result of the second round of counting on the 13th Table was not at all recorded in Form No 20 and whether the result of the second round of counting on Table No 14 was erroneously entered as against the second round of Table No 13
Section 64 of the Act provides that at every election where a poll is taken votes shall be counted by or under the supervision and direction of the returning officer and each contesting candidate his election agent and his counting agents shall have right to be present at the time of counting
Section 169 of the Act which empowers the Central Government after consultation with the Election Commission to make rules for carrying out the purposes of the Act provides by sub section 2g that such rules may provide for the scrutiny and counting of votes
Rule 567 of the Conduct of Election Rules 1961 provides that after the counting of all ballot papers contained in all the ballot boxes used in a constituency has been completed the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars
Form 20 called the Final Result Sheet requires the returning officer to enter therein the total number of valid votes recorded for the various candidates as also the total number of rejected ballot papers at each round separately
In order to avoid errors in counting of votes the Election Commission has compiled a hand book for the use of returning officers containing instructions for their guidance at various stages of the elections
Before the results of the election are entered in Form No 2
it is necessary that a record be maintained of the result of counting of each round
Paragraph 14 B in Chapter VIII of the hand hook directs that the officer in charge of distribution of the ballot papers for counting should take out a sufficient number of bundles from the drum so as to make up 1000 ballot papers and distribute them to each table for counting at each round
After the counting of every such thousand ballot papers is over the bundles are given back to the supervisor of the counting table with the Check Memo duly filled in and signed by the assistant
The Check Memo shows the votes polled by the various candidates in the particular round as also the total number of rejected votes
When the distribution and counting of bundles is thus completed on all the counting tables one round of counting is said to be over
the next round of counting will then begin
The same procedure is required to be followed for every round of counting so that the result of each round of counting on each table is reflected in the Check Memo relating to each round
As many Check Memos as many rounds of counting
The form of the Check Memo is at annexure XII A and a sample form duly filled in is at annexure XII B of the Hand book
These forms are not prescribed by the Act or the rules made thereunder but the directions in regard thereto have to be carried out on the instructions of the Election Commission in which the overall  control and supervision of elections is vested
The directions and 216 forms contained in the hand book for the use of returning officers are intended to facilitate the holding of fair and error free elections and no objection can be taken to either The original Check Memo of the 13th Table in which results of the second round were entered was not produced during the trial but a certified copy thereof was admitted in evidence as exhibit 1 subject to the objection raised by the appellant as to its admissibility
There is no substance in that objection
Section 74 of the Evidence Act provides that documents forming the acts or records of the acts of public officers are public documents
Section 76 provides that every public officer having the custody of a public document which any person has a right to inspect shall give that person a copy of it together with the certificate that it is a true copy of the document
By section 77 such certified copies may be produced in proof of the contents of the documents of which they purport to be copies
The Check Memo which is required to be maintained by the officer in charge of the counting table is a document forming record of the acts of a public officer and therefore a certified copy thereof given by the Collector in whose custody the document is kept can be admitted in evidence in proof of the contents of the original document
The certified copy exhibit 1 of the Check Memo concerning the second round of counting on Table No 13 shows that 40 bundles each containing 25 ballot papers ie 1000 ballot papers were distributed for counting in the second round
Part I of exhibit 1 contains these details
Part II of exhibit 1 shows the result of counting at the second round
According to the entries contained therein the appellant secured 21 valid votes respondent 1 secured 86 while respondents 2 to 5 secured 304 7 15 and 524 votes respectively
Forty two ballot papers were rejected thus making up a total of 999 ballot papers
Evidently there was an error regarding one ballot paper either at the stage of distribution or at the stage of counting
What is relevant is not that there was an error in the counting of one ballot paper but that the result of counting which is entered in the Check Memo ought to have been incorporated in Form No 20 in the appropriate column Surprisingly in Form No 20 the votes secured by the various candidates in the second round of counting on Table No 13 were shown as the appellant 144 votes instead of 21 respondent 1 109 votes instead of 86 respondent No 2_360 votes instead of 304 respondent No 3_ 19 votes instead of 7 respondent No 4 74 votes instead of 15 and respondent No 5 225 votes instead of 524
In short whereas the appellant had truly secured 21 votes only in the second round of counting on Table No 37 the Final Result Sheet Form No 20 showed that he had secured 144 votes and whereas respondent No 1 had secured 86 votes he was shown to have secured 109 votes
The error was favourable to both the parties but whereas the error in favour of the appellant was to the extent of 123 votes that in favour of respondent 1 was to the extent of 23 votes only
As the appellant was declared to have won the election by a margin of 49 votes only over respondent 1 it is plain that respondent 1 and not the appellant had polled the largest number of votes
217 A mere look at the entries in Form No 20 relating to the second round of counting on Table Nos 13 and 14 would disclose the error committed in making the entries therein the entries made in respect of Table No 14 were accurate but precisely those very figures were through some error carried to the second round of Table No 13
It can seldom happen that five contesting candidates would secure precisely the same number of votes in the same round of counting on two different tables when a thousand ballot papers are distributed to the two tables by picking them up at random from a common drum or receptacle
It is however unnecessary to speculate about any such possibility because it is incontrovertible that entries in the Check Memo relating to the second round of counting on Table No 13 were not transferred to the appropriate column of Form No 20
We therefore up hold the finding of the learned Judge that the result of the second round of the 14th Table came to be recorded twice and that the true result of the second round of counting on Table No 13 was entirely omitted while making entries in Form No 20
It must follow that respondent 1 has secured the maximum number of valid votes and is therefore entitled to be declared as the successful candidate
This really should be an end of the matter because the only ground on which respondent l had challenged the appellant s election was that the relevant entries in Form No 20 did not reflect the true picture
But the order passed by the learned Judge that a recount shall be taken of all the ballot papers has furnished to the appellant an opportunity to raise a doubt here and a doubt there regarding the manner in which the votes were counted and the ballot papers preserved
In our opinion the learned Judge was in error in directing merely because his suggestion was accepted by the panties appearing before him
that the court should take a recount of all the ballot papers
Respondent 1 who filed the election petition had not asked for such a recount and the defence of the appellant to the petition was that the entries in Form No 20 reflected a true picture and contained no error
The consent to the recount was given only by the appellant and respondents 1 and 
The other respondents who had contested the election did not appear at the trial of the election petition but they certainly had no notice that a recount would be suggested or accepted when there was no plea about it in the pleadings of the parties
The learned Judge widened unduly the scope of the election petition and landed himself into an unforeseen difficulty or having to decide point on which there was neither a pleading nor an issue
After the Deputy Registrar submitted his report the learned Judge felt serious doubts about the correctness of the recount but all that he did in order to allay those doubts was to take a re recount of a packet of votes where he thought the error of the recount could with assurance be located
And so we have to countenance an argument based on no pleadings arising out of no issues and founded solely on errors real or supposed which are said to have happened to see the light of the day as a result of the recount and the recount
Even election petitions must end at some stage and they cannot for the reason that elections are a democratic venture be permited to procreate points during the course of their pendency
As we were listening to the 218 appellant s argument we thought we were hearing all independent election petition filed by the appellant in order to challenge the result of the recount
Mr Somnath Chatterjee appearing for the appellant argued that the facts which have emerged out of the recount throw considerable doubt on the manner in which the election was held and therefore instead of declaring respondent No I as the successful candidate we should order that a fresh election be held
Elections says the learned counsel are not a matter of technicalities and the court must satisfy its conscience that the election before it was free and Fair
Justice may
be a matter of the Judge s conscience but even a strong and sensitive conscience must not brook an endless litigation in which parties will fish for new challenges based on accidental discoveries of no more than plausible points to ponder
The new errors on which the appellant now relies have an air of plausibility and no more
The new argument founded on those errors must therefore fail
As respondent I truly secured the maximum number of votes and as the appellant was through an error shown to have secured the maximum
number of votes we must uphold the judgment of the Orissa High Court setting aside the appellant s election and declaring respondent I as the successful candidate
The appeal is accordingly dismissed with costs in favour of respondent PHP Appeal dismissed


Summary:
Six candidates contested the mid term election to the Orissa Legislative Assembly from Nilgiri Constituency
The appellant was declared elected by a margin of 49 votes over respondent No 1
Respondent No 1 filed an Election Petition challenging the election of the appellant and praying that instead of the appellant he should be declared as the successful candidate the appellant s election was challenged by respondent No 1 mainly on the ground that through an error the returning officer did not enter the results of the second round of counting on table No 13 in Form No 20 as prescribed by rule 557 of the Conduct of Election Rules 1961
The allegation was that the results of the second round of counting on table No 14 were erroneously entered twice in form No 20 once against as the second round of table No 14 and once against the second round of table No 13
During the hearing of the petition the learned Judge enquired whether the parties were agreeable to a recount being taken of all ballot papers
Counsel appearing for appellant and respondents Nos 1 and 2 agreed to the course suggested by the learned Judge
Respondents Nos 3 to S did not appear at the trial
After the recount was taken the Deputy Registrar submitted a detailed report which was made a part of the record of the Court
Section 64 of the Act provides that in every election where a poll is taken votes shall be counted by or under the supervision of the returning officer and each contesting candidate his election agent and counting agent shall have a right to be present at the time of counting Section 169 of  the Act empowers the Central Govt
after consultation with the Election Commission to make rules for carrying out the purposes of the Act  Rule 567 of the Conduct of Election Rules 1961 provides that after the counting of all ballot papers contained in all the ballot boxes used in a constituency has been complete the returning officer shall make the entries in a result sheet in form No 20 and announce the particulars
The Election Commission has compiled a hand book for the use of the returning officers in order to avoid errors in counting of votes
Para 14 B in chapter VIII of the hand book directs that the officer in charge of distribution of the ballot paper for counting should take out sufficient number of bundles from the drums so as to make up 1000 ballot papers and distribute them to each table for
counting at each round
After the counting of every suck 1000 ballot papers is over the bundles are given back to the supervisor of the counting table with the Check Memo duly filled in and signed by the Assistant the form of the check Memo is at Annexure XII A and a sample form is at Annexure XII B of the handbook
The original check memo of the 13th table in which the results of the second round was entered was not produced during the trial but a certified copy thereof was admitted in evidence the appellant objected to its admissibility
Dismissing the appeal  HELD The certified copy of the check memo is admissible in evidence Under section 74 of the Evidence Act documents forming acts or records of the acts of public officers are public documents
By section 77 such certified copies may be produced in proof of the contents of the documents of which they purported to be copies
The check memo is a document forming records of the acts of a public officer and therefore a certified copy thereof given by the Collector in whose custody the document is kept can be admitted in evidence in proof of the contents of the original document 216A D 213 In form No 20 voles secured by the various candidates in the second round of counting on table 13 was wrongly mentioned
Whereas the appellant had secured 21 votes only in the second round of counting on table No 13 the final result sheet form No 20 showed that he had secured 144 votes and whereas respondent No 1 had secured 86 votes he was shown to have secured 109 votes
The error was favourable to both the parties
But whereas the error in favour of the appellant was of the extent of 123 votes that in favour of respondent No 1 was to the extent of 23 votes only
As the appellant was declared to have won the election by a margin of 49 votes only it is respondent No 1 and not the appellant who polled the largest number of votes
It must follow that respondent No 1 has secured the maximum number of valid votes and is therefore entitled to be declared as the successful candidate
216G H 217C D The High Court was in error in directing that the Court will recount all the ballot papers
In the election petition filed by respondent No 1 there was no request for recount
The consent to the recount was given only by respondents No 1 and 2
The other respondents had no notice that recount would be suggested or accepted when there was no plea about it in the pleadings of the parties
The High Court widened unduly the scope of the election petition and landed itself into an unforeseen difficulty of having to decide points on which there was neither a pleading nor an issue
True that elections are not a matter of technicalities but even a strong and sensitive conscience must not book an endless litigation in which parties will fish for new challenges based on accidental discoveries of no more than plausible points to ponder
The new errors on which the appellant relied had an air of plausibility and no more
The new argument founded on those errors had therefore to fail
217E 218C