IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1545 of 2009 BAL MUKUND ROY S/O LATE RAMDAS ROY R/O VILL.- RAIPURA, P.O.+P.S.- KHAIRA, DISTT.- JAMUI … Petitioner/Appellant Versus 1. THE STATE OF BIHAR, THROUGH THE DISTRICT MAGISTRATE-CUM-ELECTION OFFICER JAMUI 2. RAMESHWAR SINGH S/O LATE HARKHIT SINGH R/O VILL.+P.O. DUNDO, P.S.+DISTT.- JAMUI 3. AMRENDRA KUMAR S/O GYAN TATI R/O VILL.+P.O.+P.S. KHAIRA, DISTT.- JAMUI 4. ILIAS KHAN S/O LATE GULAM RASUL KHAN R/O VILL.+P.O. PANAPUR, P.S. KHAIRA, DISTT.- JAMUI 5. KEDAR GOSWAMI S/O RAM NATH GOSWAMI R/O VILL.- NAUDIHA, P.O.+P.S. KHAIRA, DISTT.- JAMUI 6. GAURI SHANKAR SINGH S/O TRIVENI SINGH R/O VILL.- PARSA, P.O. PHONO, P.S. KHAIRA, DISTT.- JAMUI 7. JAI PRAKASH RAWAT S/O PHULESHWAR RAUAT R/O VILL.+P.O. KHARAICH, P.S. KHAIRA, DISTT.- JAMUI 8. JANHAN BEGUM W/O MD. SAGEER ALI R/O VILL. PALLOPUR, P.O.+P.S. KHAIRA, DISTT.- JAMUI 9. PARMESHWAR YADAV S/O BHOLA YADAV R/O TILAKPUR, P.O. DUMARKOLA, P.S. KHAIRA, DISTT.- JAMUI 10. BAJRANG PASWAN S/O MAHADEO PASWAN R/O VILL.+P.O. GOPALPUR, P.S. KHAIRA, DISTT.- JAMUI 11. PURUSHOTTAM SINGH, S/O UMESH SINGH R/O VILL. KHANBERIA, P.O. PHORO, P.S. KHAIRA, DISTT.- JAMUI 12. MANOJ KUMAR GUPTA S/O SHIV SHANKAR PRASAD R/O VILL.- SHRINGARPUR, P.O.+P.S. KHAIRA, DISTT.- JAMUI 13. MANOHAR GUPTA S/O RAM PRASAD GUPTA R/O VILL.+P.O.+P.S. KHAIRA, DISTT.- JAMUI 14. MAHESH PRASAD MODI S/O GANGA MODI R/O VILL.+P.O.+P.S.- KHAIRA, DISTT.- JAMUI 15. MAHESH RAWAT S/O KAMLESHWARI RAWAT R/O VILL+P.O.+P.S.- KHAIRA, DISTT.- JAMUI 16. MD. SAMEER, S/O MD. SAGEER ALI R/O PALLOPUR, P.O.+P.S. KHAIRA, DISTT.- JAMUI 17. RAJ KUMAR SINGH S/O DWARKA SINGH R/O VILL.- CHAUHANDIH, P.O.+P.S. KHAIRA, DISTT.- JAMUI 2 18. RAM CHANDA BANSI S/O PHULESHWAR CHANDRA BANSI R/O VILL.+P.O. DABIL, P.S. KHAIRA, DISTT.- JAMUI 19. VISHWANATH RAWAT S/O PHUL CHAND RAWAT R/O VILL.- KHARAICH, P.O.+P.S. KHAIRA, DISTT.- JAMUI 20. SHIV KISHORA SINGH S/O LAL BAHADUR SINGH R/O VILL.- PURANA KHAIRA, P.O.+P.S. KHAIRA, DISTT.- JAMUI 21. SHIV SHANKAR SINGH S/O BACHCHA SINGH R/O VILL.- CHAUHANDIH, P.O.+P.S. KHAIRA, DISTT.- JAMUI 22. SHAKALDEO YADAV S/O UTTIM YADAV R/O VILL.- KOLHUA, P.O. PANAPUR, P.S. GIDHOUR, DISTT.- JAMUI 23. THE BIHAR STATE ELECTION COMMISSION PATNA THROUGH ITS COMMISSIONER … Respondens/Respondents. ----------- For the Appellant : Mr. Chittaranjan Sinha, Sr.Adv. with Mr. Sanjay Kumar Mishra For the State : Mr. Narendra Kumar, A.C. to G.P.XI For Respondent No.2: Mr. Arun Kumar, Adv. ----------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (23.3.2010) As per Mihir Kumar Jha,J.- Heard Mr. Chittaranjan Sinha, learned Senior counsel assisted by Mr. Sanjay Kumar Mishra, Advocate, for the appellant and Mr. Arun Kumar for the contesting respondent no.2- election petitioner as well as Mr. Narendra Kumar, A.C. to G.P.XI for the official respondents. Mr. Sinha while assailing the impugned order dated 14.10.2009 in C.W.J.C.No. 6475/2009 has 3 submitted that the learned Single Judge in the process of dismissing the writ application filed by the appellant- writ petitioner has gone to affirm such an illegal order dated 6.5.2009 of the Election Tribunal regarding recounting of votes which cannot be countenanced in law. In this regard he has explained that the Election Tribunal has by the order dated 6.5.2009 had allowed the prayer of respondent no.2, the election petitioner, for calling the ballot papers of Dabil, Amari and Raipura Gram Panchayat for inspection and verification only on the ground of meeting the ends of justice which in effect would mean recounting of votes for the purposes of relief sought for setting aside the result of election in favour of the appellant writ petitioner. Mr. Sinha has thus submitted that such mechanical order for recounting of votes in an election petition being wholly impermissible in law and unsustainable of fact ought to have been not affirmed by the learned Single Judge by dismissing the writ petition. Per contra, Mr. Arun Kumar, learned counsel appearing for respondent no.2- election petitioner, has supported the order of the learned Single Judge and in 4 this regard he has submitted that the appellant- writ petitioner was illegally declared to have been elected by the slender margin of 21 votes and such vitiated result of election was assailed by the respondent no.2 in the election petition on several grounds including that more than 100 of his valid ballot papers cast in his favour were rejected illegally and about 100 ballot papers cast in his favour were mixed with the ballot papers of the appellant- writ petitioner and were counted in his favour. He has also submitted that the election petitioner had also specifically asserted in his election petition that a prayer for recounting was made by him on 11.6.2006 in course of counting but no orders thereon was passed by the Returning Officer and the result was declared on 13.6.2006 declaring the appellant- writ petitioner to be elected. He has, therefore, made a valliant effort to support the order of the Election Tribunal dated 6.5.2009 as with regard to production of the ballot papers of three Gram Panchayats, namely, Dabil, Amari and Raipura. He has also submitted that the said order dated 6.5.2009 of the Election Tribunal has been partly acted upon by recounting already done in respect of the ballot papers of 5 one of the three Gram Panchayat wherein 9 votes actually polled in favour of respondent no.2- election petitioner were found to have been wrongly counted in favour of the appellant- writ petitioner and as such, if the process of recounting for the remaining two other Gram Panchayat is allowed to be completed, there is every possibility of the election petition being allowed in favour of respondent no.2- election petitioner declaring him to be the winner and therefore, he has submitted that this Court at this delicate and advanced stage should not interfere with the execution of the order of the Election Tribunal dated 6.5.2009, especially when the same has also been affirmed by the learned Single Judge while dismissing the writ application of the appellant- writ petitioner. We have carefully considered the aforesaid submissions as also the materials on record and would find that the issue of recounting though specifically raised by the appellant- writ petitioner in C.W.J.C.No. 6475/2009 was not at all gone into much less answered by the learned Single Judge who has somehow dismissed the writ application primarily on account of his being 6 influenced by the alleged delaying tactics adopted by the appellant- writ petitioner. The whole consideration of the learned Single Judge in this regard in fact is confined to the following findings in the impugned order: “ After having heard learned counsel for the petitioner and learned counsel for the contesting respondents prima facie this Court is convinced that the whole effort made on behalf of the petitioner is to delay the final conclusion of the election petition within a reasonable time frame. It is evident from the impugned order dated 19.7.2008, which is under challenge in C.W.J.C.No. 12698 of 2008, that after prime witnesses have been examined before the Tribunal initially, there is total lapse in production of witnesses and he is dragging the matter for his benefit. There is no merit in both the writ application. They are motivated and are dismissed. However, as a final opportunity this Court grants one week time for the petitioner to lead all such evidence which he wants before the Election Tribunal when the next date in the case is fixed. No further indulgence on any amount of prayer and ground will be permitted to the petitioner thereafter. The Election Tribunal will be obliged to decide the matter on conclusion of 7 examination of such witnesses. Writ application is dismissed with limited liberty.” It is thus evident that the learned Single Judge while dismissing the connected writ petition C.W.J.C.No. 6475 of 2009 involving the question of legality and correctness of the order of the Election Tribunal dated 6.5.2009 directing summoning of the ballot papers of three Gram Panchayat has not even gone into examine the same and has dismissed both the writ petitions of the appellant writ petitioner by the common impugned order. A question would, therefore, arise whether the impugned order passed by the learned Single Judge has the effect of approving an illegal order regarding recounting of votes passed by the Election Tribunal dated 6.5.2009. It may be noted that the Election Tribunal in the order dated 6.5.2009 after noting the submission of both the parties had passed the following order: “ Heard the learned counsel of both parties and perused the record and find that this is an election case in which the petitioner has 8 challenged the election result of Balmukund Rai, O.P.No.1, on the ground, inter alia, that so many irregularity and illegality has been committed by the Returning Officer at the time of nomination and during the period of counting which has been materially affected the result of the petitioner which is denied by O.P.No.1. Further I also find that the petitioner has prayed to call for all the ballot papers of Dabil, Amari and Raipura Gram Panchayat both valid and invalid ballots from the election office for inspection and verification etc. and this petitioner be declared winner which is also objected by O.P.No.1and submitted that the petitioner’s case is not such as he prayed for. Further the learned Advocate of O.P.No.1 has also submitted that the arguments have been made on behalf of both the parties on the point of recounting of ballot papers and no order could be passed up-till-now and the petitioner has filed this prejudice petition. In this regard I have to say that the plea of O.P.No.1 is to be applicable for some time because the court is not in a position to pass any final order because O.P.No.1 has filed a writ petition against the order dated 19.7.2008 but O.P.No.1 has not brought any stay order or any final order of the Hon’ble 9 High Court, Patna till today whereas already nine months had passed away. So I think that O.P.No.1 has only adopted a lingering attitude and he did not want to disposal of this case. Further I also find that it is the duty of the administration or the Election Officer to protect the ballot papers in my view. However, if O.P.No.1 thinks it necessary to make full protection of ballot papers then the court has pleased to accept the petition dated 30.4.2009 filed by O.P.No.1 and in this regard the Election Officer is required to send a report before this Court in respect of protection of the ballot papers regarding this case within six days. Further the petition dated 27.4.2009 filed by the petitioner is also allowed in respect of the prayer to called for ballot papers Dabil, Amari and Raipura Gram Panchayat both valid and invalid ballot papers for the ends of justice. O/C is directed to call for report in respect of the petition dated 30.4.2009 filed by O.P.No.1 and also called for the ballot papers of Dabil, Amari and Raipura Gram Panchayat both valid and invalid ballot papers from the election office for inspection, verification etc. only. O/c to put up on 13.5.2009 for necessary action. Further O.P.No.1 is also directed to brought final order or if any stay order from the 10 Hon’ble High Court, Patna as soon as possible” We have quoted the order of the Election Tribunal in extenso to show as to in what casual and mechanical manner it has allowed the prayer of recounting. From the faint certified copy of the impugned order passed by the Election Tribunal dated 6.5.2009, we are totally at a loss to even discover as to on what materials the Election Tribunal had actually allowed such prayer for recounting of the election petitioner. The Tribunal in fact has not even assigned any cogent and germane reason while undertaking the exercise of recount of votes and in this regard has failed to take into account that unless a strong case was made out for recount, as secrecy of votes has its own sacrosanctity in a democratic polity could not have been subjected to scrutiny and inspection in a usual mechanical manner. By now it is well settled that unless acceptable cogent evidence is brought on record, recount cannot be directed or undertaken in a routine manner. In our opinion the Tribunal has proceeded with recount without recording a finding in that regard and therefore, 11 the mere fact that ballot papers of one of the three Gram Panchayat have been counted with some favourable result in favour of the election petitioner cannot be the governing factor for this Court to give its stamp of approval to the impugned order of recount as the same was vulnerable from the beginning. We must disapprove and record our dis-satisfaction to the mode and manner in which the Tribunal has adopted a novel procedure in the case at hand as the ballot papers were called for anticipating an order of recount ignoring the fundamental conception of recount of votes. The law on the issue of recount, however, is no longer res integra. In Bhabhi v. Sheo Govind and others, AIR 1975 SC 2117, a two-Judge Bench of the Apex Court while dealing with conception of recount of ballot paper has laid down the following principles: “15. 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 allegations made against the elected candidate 12 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 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. 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 Ku. Shradha Devi v. Krishna Chandra Pant and Others, AIR 1982 SC 1569, it has been held thus: “8. When a petition is for relief of scrutiny and recount on the allegation of misconduct, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because of misconduct, petitioner must furnish prima facie proof of such 13 error.” In A. Younus Kanju v. R.S. Unni and Others, AIR 1984 SC 960 the election petitioner failed to offer prima facie allegation and proof of errors in counting of ballot papers. In that context, their Lordships held as under: “The details necessary for obtaining a recount were not pleaded in the election petition nor was any cogent material placed before the Court which could bring the matter within the rule indicated by this Court to justify a direction for recount.” In Suresh Prasad Yadav v. Jai Prakash Mishra, (1975) 4 SCC 822, while dealing with the basic facet of inspection of ballot papers and re-counting their Lordships have expressed thus: “5. …. this Court has repeatedly said, that an order for inspection and re-count of the ballot papers cannot be made as a matter of the 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 provide an elaborate procedure for counting of ballot papers. This procedure contains so many statutory checks and effective safeguards against mistakes and fraud in counting, that it can be called almost trickery 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. 6. The court would be justified in ordering a 14 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 necessary to decide the dispute and to do complete and effectual justice between the parties.” In Satyanarain Dudhani v. Aduay Kumar Singh, AIR 1993 SC 367, it has been stated as follows: “10. It is thus obvious that neither during the counting nor on the completion of the counting there was any valid ground available for the recount of the ballot papers. A cryptic application claiming recount was made by the petitioner-respondent before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the returning Officer. We are of the view when there was no contemporaneous evidence to show any irregularity or illegality in the counting. Ordinarily, it would not be proper to order recount on the basis of bare allegations in the election petition. We have been taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to 15 be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered.” In Bahoran Lal v. Ganesh Prasad andothers, AIR 1999 MP 7, it has been held as under: “The law is settled as to when and under what circumstance the recount can be ordered. In the case of Km. Shradha Devi v. Krishna Chandra Pant, AIR 1982 SC 1569, the Supreme Court in para 8 observed that when a petition is for relief of scrutiny and recount on the allegation of misconduct, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because of misconduct, petitioner must furnish prima facie proof of such error. If proof is furnished of some errors in respect of some ballot papers, scrutiny and recount cannot be limited to those ballot papers only. Reliance was placed on paragraph 940 of Halsbury’s Law of England, 4th Edn., Vol. 15 and it was observed that : “This Court has in terms held that prima facie proof of error complained of must be given by the election petitioner and it must further be shown that the errors are of such magnitude that the result of election so far as it affects the returned candidate is materially affected, then recount is directed. Reliance was also placed in the case of Khilari v. The IVth Additional District Judge, Sonbhadra, AIR 1992 All 186 wherein the case of Beliram Bhalaik v. Jai Behari Lal Khachi, AIR 1975 SC 283 was noted where the Supreme Court said: 16 “…….. Although no castiron rule of universal application can be or has been laid down. Yet from a beadroll of the decisions of the Supreme 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 (1) 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 Vadivelu vs. Sundaram and others, (2000) 8SCC 355, a three-Judge Bench of the Apex Court, after referring to the decisions rendered in the cases of Satyanarain Dudhani (supra), Jitendra Bahadur Singhvs. Shri Krishna Behari, (1969) 2 SCC 433; D.P. Sharma vs. Commr. and Returning Officer, 1984 Supp SCC 157; P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen, AIR 1989 SC 640, Ram Sewak Yadav vs. Hussain Kamil Kidwai, AIR 1964 SC 1249; S. Raghbir Singh Gill vs. S. Gurcharan Singh Tohra, 1980 Supp SCC 53, R. Narayan v. S. Semmalai, (1980) 2 SCC 537; and M.R. Gopalkrishnan vs. Thachady Prabhakaran, 1995 Supp (2) SCC 101, expressed thus: “16. The result of the analysis of the above 17 cases would show that this Court has consistently taken the view that re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to re-count of votes under such circumstances to do justice between the parties.” In Chandrika Yadav vs. State of Bihar, 2004) 6 SCC 331 = AIR 2004 SC 2036, the Apex Court as laid down the following norms: “20. It is well settled that an order of recounting of votes can be passed when the following conditions are fulfilled: (i) A prima facie case; (ii) Pleading of material facts stating irregularities in counting of votes; (iii) A roving and fishing inquiry shall not be made while directing recounting of votes; and (iv) An objection to the said effect has been taken recourse to. 21. The requirement of maintaining the secrecy of ballot papers also be kept in view before a recounting can be directed. Narrow margin of votes between the returned candidate and the 18 election petitioner by itself would not be sufficient for issuing a direction for recounting.” In Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao and Ors., (2010) 1 SCC 466, the Apex Court, after referring to the order of the election tribunal which has directed recount and affirmation thereof by the High Court, eventually set aside the order of recount. In paragraph 10, the Apex Court referred to the order of the tribunal which we think appropriate to reproduce herein below: “10. The Tribunal held that since no prejudice would be caused to the appellant and