Case: R. Narayanan Vs. S. Semmalai &amp; Others

unreasonable demands for recount. Malafide aspersions on counting staff or false and untenable objections regarding validity of votes also fall under the same category. We mean to be illustrative, not exhaustive, but underline the need, in appropriate case, to be reasonably liberal in re- check and re-count by Returning Officers. After all, fairness at the polls must not only be manifest but misgiving about the process must be erased at the earliest. Indeed, the Instructions to Officers are fairly clear and lay down sound guidelines. 23. Reliance was placed by the High Court on an observation of Krishna Iyer, J. in this case that where the margin of difference is minimal the claim for the fresh poll cannot be summarily brushed aside. In the first place, this observation was really meant for the Returning Officer because at the time when request for re-count to the Returning Officer is made the electoral process is still continuing and if there are any counting errors they can be rectified before the election process is complete. This however cannot apply to the Court while dealing with an election petition because if a re-count is ordered at that stage then the electoral process has to be restarted afresh. In our country the election is an extremely expensive process and unless very clear case for recount is made out the candidates should not be put to unnecessary trouble and expense. Moreover, in the case of Ram Autar Singh Bhadauria v. Ram Gopal Singh &Ors.(1) this Court to which Krishna Iyer, J. himself was a party observed: The above being the law on the point, it is clear that the learned Judge was in error in ordering general inspection and recount of the total votes polled at the election, merely because in these Additional Pleas the returned candidate also had by way of recrimination, complained of wrong reception an d rejection of votes and wrong counting of votes. The pleas at this stage could not be investigated even in the recriminatory petition filed by the returned candidate. They were beyond the scope of the enquiry into the petitioners case which (as set up in Para 11 of the Petition) fell under s.100(1) (d) (iii) of the Act. 24. Similarly in the case of Chanda Singh v. Choudhary Shiv Ram Verma(2) this Court observed as follows:- A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers lead to the formation of Governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent and flippant recounts by courts a new system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as h ere, to ask for a recount. Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step. 25. In the case of Beliram Bhalaik v. Jai Beharilal Khachi and Anr.(1) this Court again reiterated the same principles in the following words:- A whimsical and bald statement of the candidate that he is not satisfied with the counting is not tantamount to a statement of the grounds within the contemplation of Rule 63(2). The application was thus not a proper application in the eye of law. It was not supplemented even by an antecedent or contemporaneous oral statement of the author or any of his agents with regard to any irregularities in the counting. It was liable to be rejected summarily under sub-rule (3) of Rule 63 also. Although no cast-iron rule of universal application can be or has been laid down, yet from a breadroll of the decisions of this court two broad guidelines are discernible; that the co urt would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are plead ed adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such and order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. 26. Finally, the entire case law on the subject regarding the circumstances under which re-count could be ordered was fully summarised and catalogued by this Court in the case of Bhabhi v. Sheo Govind &Ors. (2) to which one of us (Fazal Ali, J.) was a party and which may be extracted thus:- The Court would be justified in ordering a 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 allegation s 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. 27. Thus, on a consideration of the principles deduced from the authorities mentioned above and the evidence led in this case by the parties, we are satisfied that this was not a case in which a re-count should have been ordered by the learned Judge. 28.

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

Explanation:
1[ds]In the first place the finding itself is based purely on speculation. It is obvious that election being a technical matter the authorities choose experienced persons to do the counting and take every possible care to see that the members of the staff do not commit any error. Moreover, the relief ofg cannot be accepted merely on the possibility of their being an error. It isd that such allegations must not only be clearly made but also proved by cogent evidence. The Judge himself holds that the respondent has not established any specific ins tance of erroneous sorting and that the allegations made in the pleadings as well as in the evidence are general yet he accepts the case of the respondent on such insufficient and infirm evidence. Moreover, it would appear from the evidence of P.W. 23 the witness for the respondent that the first round started at 5 p.m. and ended at about 8.30 p.m., the second round started at 9 p.m. and ended at 11.30 p.m. and the third round started at 12ended at 2 a.m. The witness w as asked inn whether he had complained to the counting staff at the spot and the witness admitted that when he pointed out the mistake it was rectified by the counting staff. From the timings of the rounds it appears that there were sufficient intervals between the three rounds, and, therefore, the question of the staff being tired and exhausted did not arise. This finding of the learned Judge, therefore, is against the weight of evidence and cannot be legally supported. Moreover, as we have already pointed out that recount should be ordered not on possibility of errors but when the matter is proved with absolute certainty. Similarly, the learned Judge speculates that there must have been lot of physical exertion and observedt is not possible to exclude the possibility of physical exertion on the part of the counting staff especially after midnight when the third round of counting took place. Having regard to the minimal difference in votes it has become necessary to find outwhether the third round of counting was carried on by the counting staff properly.In the nature of things it is not possible to assume that all the 7 2 persons were alert and attended to the process of counting with such keenness as it deservedThis finding is also based on pure speculation and cannot be maintainedLastly, the learned Judge was greatly influenced by the fact that the margin by which the appellant succeeded was very narrow. This was undoubtedly an important factor to be considered but would not by itself vitiate the counting of votes or justifyIt would thus be seen that all the three grounds taken by the respondent before the Returning Officer were absolutely vague and could not make out a case forg by the Returning Offic er much less by the court. It may be relevant to note that in the application filed by the respondent the question that the appellant succeeded by a narrow margin was also not mentionedThus, on a consideration of the principles deduced from the authorities mentioned above and the evidence led in this case by the parties, we are satisfied that this was not a case in which ashould have been ordered by the learned JudgeThe law on the subject is absolutely clear and while the learned Judge had relied on some of the decisions of this Court he has failed to apply them correctly to the facts and circumstances of this caseIn the first place, this observation was really meant for the Returning Officer because at the time when request forthe Returning Officer is made the electoral process is still continuing and if there are any counting errors they can be rectified before the election process is complete. This however cannot apply to the Court while dealing with an election petition because if aordered at that stage then the electoral process has to be restarted afresh. In our country the election is an extremely expensive process and unless very clear case for recount is made out the candidates should not be put to unnecessary trouble and expense.