Case: Bhabhi Vs. Sheo Govind &amp; Ors

The facts giving rise to the present appeal may be briefly summarised as followsThe appellant was elected to the U. P. Legislative Assembly from 218, Mubarakpur Constituency in the District of Azamgarh, U. P. The last date of nomination for election to the said assembly was January 24, 1974. The date of scrutiny was January 25, 1974 and that of withdrawal January 28, 1974. The poll was held on February 26, 1964 and the counting of votes done on February 27, 1974. The result of the election was declared on February 28, 1974. The respondent filed an election petition before the Election Judge of the Allahabad High Court some time in March 1974. The appellant secured 19, 728 votes while respondent No. 1 had secured 19, 634 votes and thus the appellant defeated respondent No. 1 by a margin of 94 votes and was duly elected to the U.P. Legislative Assembly. In the petition filed by the respondent before the Allahabad High Court the respondent in paragraph-8 of the said petition made a large number of allegations regarding the improper reception and rejection of votes and regarding wrong arithmetical counting of votes and acceptance of votes which were void. The material facts with respect to the allegations were set out in paragraph-9 of the petition which broadly are as follows:(1) That the election staff engaged in the work of counting was suffering from serious physical strain as they had to work without any rest on that day as a result of which there were a number of arithmetical mistakes in the counting of votes.(2) That the staff had become drowsy and was actually dozing and could not efficiently discharge its function of counting the votes properly.As regards the facts relating to improper rejection of valid ballot papers it is said that a large number of ballot papers in which valid votes had been marked for the petitioner (respondent No. 1) were declared invalid despite oral protests made by the counting agents of the respondent. Similarly a large number of ballot papers had distinct marks of stamp in the column of the petitioner near the symbol of cow and calf and yet they were improperly rejected by the counting staff on the ground that there were no distinct marks. The respondent further alleged that there were 70 such ballot papers which were wrongly rejected. It was also pleaded that a number of ballot papers which had a valid vote for the petitioner were illegally rejected on the ground that there were some accidental mark made in the column of some other candidate which was not a mark of the stamp or a voting mark and the number of such ballot papers rejected was 50. Finally it was said that a number of ballot papers which carried valid votes for the petitioner were illegally rejected on the ground that there was no seal mark or there was no signature of the Returning Officer on those ballot papers although it was far from the truth. Such were said to be the obvious mistakes in the rejection of the ballot papers and the counting of votes which formed the sheet-anchor of the case of the respondent in challenging the election of the appellant. The appellant in his written statement denied all the allegations made in the petition.While the election petition was being heard by the High Court an application was filed by he respondent No. 1 praying that a sample inspection of the ballot papers may be allowed. In support of this application some witnesses, counting agents of the respondent and other persons were examined and some affidavits were filed. The appellant also produced some evidence. The learned Judge has mentioned in his order that this sort of evidence was led before him but he has not at all given any finding on the credibility of the evidence. The learned Judge further noticed very prominently that in respect of the allegations made that the counting of votes was wrong and the rejection of the ballot papers was improper, yet the respondent filed no application for recounting of votes as provided by r. 63 of the Conduct of Election Rules, 1961. The learned Judge also noticed that the respondent had not given serial number of a single ballot paper which is said to have been improperly accepted or improperly rejected. The Judge, however, allowed the application because he thought that the ends of justice required it. In this connection the learned Judge observed as follows:"But before I advert to consider the election petition, the affidavit and the oral evidence to decide whether there should be an order for the general inspection of the used ballot papers, I think it will be in the interests of just ice to order a sample inspection of ballot papers counted in favour of respondent No. 1 as also a sample inspection of the rejected ballot papers in this case."

Reasoning:
These observations clearly show that the learned Judge made no attempt at all to give any finding whether he was prima facie satisfied regarding the credibility of the evidence or the materials adduced before him but ordered a sample inspection in order to test the validity of the allegations made by the respondent. It seems to us that in passing this order the learned Judge, while noticing some of the leading cases of this Court on the point which he has cited in his judgment, viz., Ram Sewak Yadav v. Hussain Kamil Kidwai &Ors. ([1964] 6 S.C.R, 238.) Dr.. Jagjit Singh v. Giani Kartar Singh and others, (A.T.R. 1966 S.C. 773.) Jitendra Bahadur Singh v. Krishan Behari &Ors;([1970] 1 S.C.R. 852.) and Sumitra Devi v. Shri Sheo Shankar Prasad Yadav &Ors.([1973] 2S.C.R.920.) has made no attempt to apply the principles laid down in those cases to the facts of the present case.Before, however, dealing with the order passed by the learned Judge it may be necessary to refer to a number of authorities of this Court on the circumstances under which an inspection of the ballot papers, or f or that matter a sample inspection, can beis true that a sample inspection was allowed in that case. But, in our opinion, it was so done because of the special facts of thatthe instant case, however, the allegations are of a different kind. They relate only to the mistakes in counting and improper rejection of votes. They are not of a sweeping pattern as in the casethese circumstances, therefore, the ratio laid down in Sashi Bhushans case (supra) cannot be pressed into service for the purpose of supporting the order of the learnedon 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 allocations made against the elected candidate 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 bethe instant case we find that the learned Judge while passing the order of sample inspection made no attempt to apply the principles mentioned above to the facts of the present case. What is more important is that the Court actually noticed some of the important decisions of this Court which we have discussed and yet it did not try to test the principles laid down on the touchstone of the allegations and the material facts pleaded by the respondent. Another error into which the learned Judge had fallen was that he did not realise that by allowing sample inspection he had provided an opportunity to the respondent to indulge in a roving inquiry in order to fish out materials to justify his plea in order to declare the election to be void a course which has been expressly prohibited by this Court, because it sets at naught the electoral process and causes a sense of instability and uncertainty amongst the duly elected candidates. Thirdly, while the learned Judge has observed that the Court must be prima facie satisfied regarding the truth of the materials, but it did not choose to record its satisfaction on the application of the respondent at all and has readily accepted the suggestion of the respondent for sample inspection on the ground that it was necessary for the ends of justice. Such an approach, in our opinion, is legally erroneous. While indicating in his order that both the parties had produced some affidavits before him in support of their pleas, the learned Judge has not at all tried to appreciate or consider the evidence in order to find out whether it was worthy of credence. In the absence of any such finding it was not open to the learned Judge to have passed an order for sample inspection just for the asking of the respondent.Finally there were intrinsic circumstances in this case which went to show that unless the respondent was able to place cogent materials this was not a case for allowing sample inspection at all. in the first place although the counting agents of the respondent were present at the time when the votes were counted no application for a recount was made under r. 63 of the Conduct of Election Rules,  1961. The nature of the allegations made by the respondent in his petition as alluded to above was such as could have been easily verified at the spot by the Returning Officer, if his attention was drawn to those facts by an application made under r. 63 of the Conduct of Election Rules, 1961. Secondly the learned Judge overlooked that the respondent had not given the material particulars of the facts on the basis of which he wanted an order for sample inspection of ballot papers. No serial number of the ballot paper was mentioned in the petition nor were any particulars of the bundles containing the ballot papers which were alleged to have been wrongly rejected given by the respondent. Even the segment in which the irregularity had occurred was not mentioned in the petition. We, however, refrain from making any further observation as to what would be the effect of non-disclosure of these particulars because we intend to remit the case to the learned Judge for rehearing the matter and deciding the application for inspection. What appears to have weighed with the Judge is the solitary circumstance that the appellant had succeeded by a narrow margin and that was a sufficient ground for ordering sample inspection. We are, however, unable to agree with this broad statement of the law by the learned Judge because if a person is duly elected even by a narrow margin of votes there is no presumption that there has been illegality or irregularity in the election. This is a fact which has to be proved by a person who challenges the election of the duly elected candidate. After all in a large democracy such as ours where we have a multi-party system, where the number of voters is huge and diverse, where the voting is free and fair and where in quite a few cases the contest is close and neck to neck, a marginal victory by a successful candidate, over his rival can sometimes be treated as a tremendous triumph so as to give a feeling of satisfaction to the victorious candidates The Court cannot lightly brush aside the success of the duly elected candidate on an election petition based on vague and indefinite allegations or frivolous and flimsy grounds. The learned counsel for the respondent submitted, however, that in view of the amended provisions of the Representation of the People Act and the rules made there under the question of maintenance of secrecy h as now become obsolete, because under the present system which was in vogue at the time when the election of the appellant was held it is difficult to find out as to which voter voted for the candidate. It is, however, conceded by the learned counsel for the respondent that if the counter-foils which are scaled and kept separately are made to tally with the ballot papers, then it can be ascertained with some amount of precision as to which voter voted for whom. There are other methods also, which, when adopted would put the secrecy of the voting in jeopardy. In these circumstances, therefore, the question of maintenance of secrecy does not become obsolete as argued by Mr. Garg appearing for the respondent. We have adverted to a long course of decisions of this Court where it has been insisted on the maintenance of the secrecy of the ballot and the new methodology adopted by the Act has not made any material change in thisargument, however, is wholly untenable for the reasons we have given in holding that the order of the learned Judge is not in accordance with the law. The learned Judge has not at all applied the principles laid down by this Court in the cases referred to above. It is manifest that the Court has the undoubted power to (, rant prayer for inspection, but this discretion has to be exercised according to the sound and sacrosanct principles laid down by this Court. In the instant case, the discretion has been exercised by the learned Judge in an arbitrary manner without the application of the mind to the material facts and circumstances as discussed above.