Case: Suresh Prasad Yadav Vs. Jai Prakash Mishra &amp; Others

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 roundwise and extracted in this Exh. 7."36. From the statement of R. W. 13 extracted above, it would appear that at first a detailed result sheet in which figures were tabulated candidate-wise, table-wise and round-wise was prepared, and then, therefrom, all the figures, excepting those 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 has 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, Exh. 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 m the prescribed form. The basic figures from which the final result-sheet, whether detailed or abstracted, are worked out are given in the Check Memos pertaining to the various counting tables. Such Check Memos are available and in. deed reference to some of them namely Exhs. C/3, C/4, C/6 and C/8 was specifically made before us. The correctness or otherwise of the figures given in Ex. 7 could easily tee 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, Ex. 7, would not agree with the figures taken and totalled from the Check Memos.37. We therefore, repel this contention.38. 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 petitioners 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. P. W. 13 also, on coming to know about it, protested against that mixing. In support of this contention, Counsel has referred 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.39. 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 p. m. 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 beenrecounted again.All the votes be recounted."40. It was not alleged therein, even in an embryonic form that 600uncountedvotes in bundles were detectedlying underneath the tableof 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 counted twice over, had now become completely uncounted. What was then alleged in Ex. 3 to have been countedonthe table, has now goneunderneaththe table.41. The original allegation in Ex. 3 (which was repeated in the second application, Ex. 3a, presented at 7-40 p. m.) 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 had 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 afterthought.42. 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, Ex. 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 (Ext. 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 applications 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.43. 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.

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

Explanation:
0[ds]7. 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.8. 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 Supervisors Counting Assistants, was summoned from the office of the District Election Officer, and in response thereto, the list Ex. 6, has been produced. It is argued that since the names of Ajudhya Prasad Singh, Q. M. Zaman, Parvez Ahmed and Radhey Sham Sah do not find mention in Exh. B. they were never appointed to act as 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 Ex. 6 and the Check Memos (Ex. C/3, Ex. C/4, Ex. C/6 and Ex. C/8). The Check Memos show that the aforesaid persons actually supervised the counting at tables Nos. 4, 5, 7 and 9.Indeed the main burden of the arguments of Mr. Prasad, is that the Assistant Returning Officer Returning 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.Any other interpretation of Rule 93 and its acope 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 R. 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. Sub-rule (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, an objection was raised that fifty unused ballot papers in the packet did not bear the mark or signature required by Rule 38 (l). The Returning Officer was therefore, fully competent to open the packet and inspect and count the ballot papers found therein.28. Instruction 23 in the Hand Book issued by the Election Commission, also indicates that Rule 93 (1) 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 Rule 93 (1) immediatelyafterthe 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 result 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 93 (1) is the post-election custody.29.In the light of the above discussion, the conclusion is inescapable that tile 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.30. Accordingly, we overrule this contention.31. It is urged that the detailed result-sheet, prepared candidate-wise, tablewise and round-wise, from which figures mentioned in the final result-sheet (Exh. 7) were extracted, has been deliberately withheld to prevent detection of the hank 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. 17 (q) in "the Hand Book for Returning Officers (1970)" issued by the ElectionFrom the statement of R. W. 13 extracted above, it would appear that at first a detailed result sheet in which figures were tabulated candidate-wise, table-wise and round-wise was prepared, and then, therefrom, all the figures, excepting those 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 has 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, Exh. 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 m the prescribed form. The basic figures from which the final result-sheet, whether detailed or abstracted, are worked out are given in the Check Memos pertaining to the various counting tables. Such Check Memos are available and in. deed reference to some of them namely Exhs. C/3, C/4, C/6 and C/8 was specifically made before us. The correctness or otherwise of the figures given in Ex. 7 could easily tee 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, Ex. 7, would not agree with the figures taken and totalled from the Check Memos.37. We therefore, repel this contention.38. 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 petitioners 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. P. W. 13 also, on coming to know about it, protested against that mixing. In support of this contention, Counsel has referred 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.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, Ex. 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 (Ext. 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 applications 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.43. 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.