Case: Sumitra Devi Vs. Shri Sheo Shanker Prasad Yadav &amp; Ors

1. This is an appeal under S. 116-A of the Representation of the People Act, 1951, from a judgment of the High Court of Patna, by which the High Court dismissed the petition of the appellant for setting aside the election of Respondent No. 1 as a Member of Parliament from 31-Khagaria Parliamentary Constituency, in the election held in March, 1971, and to declare the appellant as the duly elected member from the aforesaid constituency.2. According to the election programme, the nominations were to be filed from January 27, 1971, to February 3, 1971; they were to be scrutinized on February 4, 1971; poll, if necessary was to be taken on March 5, 1971; the ballot paper were to be counted on March 10, 1971 and the result of the election was to be declared on March 11, 1971. It was in pursuance to this programme that the appellant and Respondent No. 1, along with 10 other candidates, filed their nomination papers. Two of the candidates subsequently withdrew and the contest was among the remaining candidates. The poll was held on March 5, 1971. The counting of the ballot papers took place on March 10, 1971. The respondent No. 1 obtained 73,594 votes and the appellant, 73,046. So, Respondent N. 1 was declared elected by the Returning Officer.3. The appellant challenged the election of respondent No. 1 in her petition on the following allegations: There was no proper lighting arrangement in the segments where the votes were counted and there were frequent failures of electricity. Taking advantage of this, the counting staff showed partiality to respondent No. 1 by counting the votes cast in favour of the other candidates for respondent No. 1. Several undesirable persons who had been working for respondent No. 1 managed to enter the counting comparments and created confusion. They also manoeuvred the counting staff and thereby illegally managed to increase the number of votes in favour of respondent No. 1. Several ballot papers which had clear seal on the symbol of the appellant were illegally rejected. The counting staff took out several ballot papers of the appellant and mixed them with doubtful ballot papers and, without paying any heed to the objections raised by the counting agents of the appellant, rejected them machinically by putting the rejection seal on their back. A large number of ballot papers which should have been rejected were counted in favour of respondent No. 1. Ballot papers having seal on more than one symbol or seal on the shaded area or seal on the back or having no seal or having no official seal on the symbol of respondent No. 1, were illegally counted in favour of respondent No. 1. A large number of ballot papers bearing no signature of the Presiding Officer or identifying mark on the back were counted in favour of respondent No. 1 merely because they had been placed in the ballot boxes illegally by those controlling the polling booths. Several bundles having less than 50 ballot papers were counted in favour of respondent No. 1 as having 50 ballot papers. As a result of these irregularities in the counting of the ballot papers, about 3,000 ballot papers which should have been rejected were counted in favour of respondent No. 1 and 1,000 ballot papers which should have been counted in favour of the appellant were illegally rejected and this materially affected the result of the election.4. To substantiate these allegations, the appellant examined as many as 23 witnesses including herself. After the evidence was closed, the appellant had put in a petition for inspection of the ballot papers. The High Court rejected the petition for the reason that the appellant had not pleaded the material facts in the petition to set aside the election.5. The High Court, after a careful consideration of the evidence of the witnesses found, that the allegations in the election petitions were vague and that evidence adduced to prove them was unreliable, and so, dismissed the petition.6. The appellant submitted before us that the evidence of the witnesses examined by her would prove the several illegalities alleged to have been committed in the counting of the ballot papers and that, in any event, the appellants application for inspection should have been allowed.

Reasoning: 10. In the case at hand, the allegations in the election petition were vague and the petition did not contain an adequate statement of the material facts. The evidence adduced by the appellant to prove the allegations was found unreliable. No definite particulars were also given in the application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers. A recount will not be granted as a matter or right but only on the basis of evidence of goods grounds for believing that there has been a mistake in the counting.It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection.Counsel for the appellant relied on Bhim Sen v. Gopali, (1961) 22 Ele LR 288 (SC) and contended that an inspection of the ballot papers should be granted even if no prima facie case has been made out by the allegations in the election petition. That case was considered by this Court in (1964) 6 SCR 238   = (AIR 1964 SC 1249  ) and the Court was of the view that unless an election petition contains an adequate statement of the material facts, an election tribunal would not be justified in ordering an inspection of the ballot papers. As the appellant did not make out a case for inspection, the High Court was justified in dismissing the application. In these circumstances, we do not think that there is any substance in the prayer of the appellant for a recount of the votes.