Case: Jagannath Rao Vs. Raj Kishore &amp; Others

Therefore the allegations will have to be confined to box No. 3 alone. To my mind, the circumstances given by Sri Shivaji Misra were sufficient to raise a suspicion that there had been intermeddling with box No. 3 and its contents."8. From these observations it is clear that the learned Judge accepted the evidence of Sri Misra relating to the condition of the lock put on box No. 3 as well as the envelopes that were inside that box when he saw them on October 30, 1969. Sri Misras evidence which was accepted by the learned trial Judge clearly indicates the possibility of tampering of the ballot papers inside box NO. 3. But curiously enough even after accepting the evidence of Sri Misra, the learned Judge came to the conclusion that there was conclusive proof to show that the ballot papers were tampered with in the High Court. We shall presently see that the learned Judge came to the conclusion that several ballot papers had been tampered with. But his hypothesis is that they might have been tampered with in the District Electoral Office and there might have been only an attempt at tampering in the High Court. His reasoning on this question is difficult to follow.9. The learned Judge after scrutinizing some of the ballot papers but not all of them, observe :"While examining them I noticed that some appeared to be suspicious and looked as if they had been tampered with. There was clear seal with the instrument provided in the compartment of respondent 1, but another seal was also to be found in the compartment of some other candidate. In some, the ink of the seal in the compartments of other candidates was watery and had spread and was fainter than that of the seal in the compartment of respondent 1. Such ballot papers were also found in Schedule I-A of the amendment application of the recriminatory petition. In some, the colour of the ink in the compartments of other candidates was different in colour then that of the seal in the compartment of respondent 1. In some, the size of the seal in the compartments of candidate was either smaller or bigger than the size of the seal in the compartment of respondent 1. In some, not only the ink of the seal put in the compartments, of the other candidates was fainter than that of the seal in the compartment of respondent 1, but the seal was also different in form. All that goes to point that some ballot papers had been tampered with in which the above condition of the seal and ink was found."10. From these findings, it is reasonable to conclude that the ballot papers had been tampered with, in the High Court at the time of the inspection. It is strange that even after coming to the conclusion that ballot papers had been tampered with, the learned Judge thought that he could find out, in whose favour each of the tampered ballot paper had been cast. In attempting to do so, he was clearly undertaking risky job. His reliance on the directions given in the second proviso to Rule 56 (2) of the Conduct of Election Rules, 1961 to the Returning Officers was is misconceived. The said rule does not deal with tampered ballot papers. The learned Judge, in our opinion, adopted a dangerous course. Once he came to the conclusion that there was tampering with the ballot papers he should have thought that there was no use in further inspecting the ballot paper to find out whether they were properly accepted or counted. In the course of his judgment, the learned Judge came to the conclusion that out of the ballot papers examine by him, he detected that 88 ballot papers had been tampered with. We have earlier mentioned that he had examined only some of the ballot papers and not all. Therefore that possibility of many more ballot papers having been tampered with cannot be ruled out.11. The learned trial Judge fell into an error in thinking that in the schedule attached to the petition filed on behalf of the appellant on December 10, 1969, the respondent had mentioned the numbers of the tampered ballot papers. Because of this erroneous impression, he appears to have focussed his attention only on those ballot papers and not others. He does not say anywhere in his judgment that he scrutinized all the ballot papers found in box No. 3. It is clear from his judgment that he merely scrutinized the 268 ballot papers mentioned in the schedule mentioned earlier. A reading of the petition on which that schedule was attached makes it clear that the ballot papers mentioned therein do not refer to the tampered ballot papers. In fact, the appellant or his counsel could not have found out at the time that schedule was filed into court, which all ballot papers had been tampered with. After October 30, 1969 they were not permitted to re-examine the ballot papers that had already been examined.12. From an examination of the material on record, we are of opinion that there are grounds to believe that where was large scale tampering of ballot papers and it is most likely that the tampering in question was done in the High Court during the time of the examination of the ballot papers. It is nobodys case that the tampering was done at the instance of or for the benefit of the appellant. That being so there was no point in the learned Judge trying to find out as to which candidate had obtained more valid votes. In the circumstances the only proper course was to proceed on the basis that the decision of the Returning Officer should be presumed to be correct. As held by this Court Jabar Singh v. Genda Lal, there is a prima facie presumption in favour of the validity of the acceptance or the rejection of the voting papers which had been counted.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. From these observations it is clear that the learned Judge accepted the evidence of Sri Misra relating to the condition of the lock put on box No. 3 as well as the envelopes that were inside that box when he saw them on October 30, 1969. Sri Misras evidence which was accepted by the learned trial Judge clearly indicates the possibility of tampering of the ballot papers inside box NO. 3. But curiously enough even after accepting the evidence of Sri Misra, the learned Judge came to the conclusion that there was conclusive proof to show that the ballot papers were tampered with in the High Court. We shall presently see that the learned Judge came to the conclusion that several ballot papers had been tampered with. But his hypothesis is that they might have been tampered with in the District Electoral Office and there might have been only an attempt at tampering in the High Court. His reasoning on this question is difficult to follow.From these findings, it is reasonable to conclude that the ballot papers had been tampered with, in the High Court at the time of the inspection. It is strange that even after coming to the conclusion that ballot papers had been tampered with, the learned Judge thought that he could find out, in whose favour each of the tampered ballot paper had been cast. In attempting to do so, he was clearly undertaking risky job. His reliance on the directions given in the second proviso to Rule 56 (2) of the Conduct of Election Rules, 1961 to the Returning Officers was is misconceived. The said rule does not deal with tampered ballot papers. The learned Judge, in our opinion, adopted a dangerous course. Once he came to the conclusion that there was tampering with the ballot papers he should have thought that there was no use in further inspecting the ballot paper to find out whether they were properly accepted or counted. In the course of his judgment, the learned Judge came to the conclusion that out of the ballot papers examine by him, he detected that 88 ballot papers had been tampered with. We have earlier mentioned that he had examined only some of the ballot papers and not all. Therefore that possibility of many more ballot papers having been tampered with cannot be ruled out.11. The learned trial Judge fell into an error in thinking that in the schedule attached to the petition filed on behalf of the appellant on December 10, 1969, the respondent had mentioned the numbers of the tampered ballot papers. Because of this erroneous impression, he appears to have focussed his attention only on those ballot papers and not others. He does not say anywhere in his judgment that he scrutinized all the ballot papers found in box No. 3. It is clear from his judgment that he merely scrutinized the 268 ballot papers mentioned in the schedule mentioned earlier. A reading of the petition on which that schedule was attached makes it clear that the ballot papers mentioned therein do not refer to the tampered ballot papers. In fact, the appellant or his counsel could not have found out at the time that schedule was filed into court, which all ballot papers had been tampered with. After October 30, 1969 they were not permitted tothe ballot papers that had already been examined.12. From an examination of the material on record, we are of opinion that there are grounds to believe that where was large scale tampering of ballot papers and it is most likely that the tampering in question was done in the High Court during the time of the examination of the ballot papers. It is nobodys case that the tampering was done at the instance of or for the benefit of the appellant. That being so there was no point in the learned Judge trying to find out as to which candidate had obtained more valid votes. In the circumstances the only proper course was to proceed on the basis that the decision of the Returning Officer should be presumed to be correct. As held by this Court Jabar Singh v. Genda Lal, there is a prima facie presumption in favour of the validity of the acceptance or the rejection of the voting papers which had been counted.