# Smt. Munesh Devi v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1351
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-29
- **Case number:** Civil Misc. Writ Petition No.8303 of 2013
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-munesh-devi-v-state-of-u-p-and-ors-42701
- **Pages:** 6

## Headnote

Constitution of India, Art. 226-Order recounting
of
votes-in
Gaon
sabha
election-on
application
defeated
candidate-only supported by number of
affidavit
reiterating
version
of
application-can
not
be
basis
for
recounting unless clinching evidence are
there-held
secrecy
of
ballot
is
sacrosanct-similarly statutory provision
can not be broken-unless prima faci case
made out-even recounting done-heldimmaterial-election tribunal committed
manifest error by passing order of
recounting-can not sustained-quashed.

Held: Para-17
1352 INDIAN LAW REPORTS ALLAHABAD SERIES
In the instant case, the Court finds that
there was no clinching evidence to show
any irregularity or illegality in the counting
of the votes or in the reception of the votes.
The only allegation was that certain votes
of dead persons were cast and certain
outsiders have cast the votes. These are
bald allegations which are required to be
proved by documentary and oral evidence,
which stage has not arrived as yet.

Case Law discussed:
AIR 1975 SC 2117; 1986(2) RD 151(FB);
(2003) 5 SCC 650; 2004(4) AWC 3667; AIR
1989 SC 640; AIR 1993 SC 367.

## Text

3 All] Smt. Munesh Devi Vs. State of U.P. and Ors.
1351
loan on 3.8.2010 and a compromise has
also been arrived at in between the
borrower and the bank for depositing the
remaining amount with the bank. The
bank in its counter-affidavit candidly
admitted that the offer submitted by the
borrower is under consideration and the
compromise is yet to be materialized.
However, they did not deny the fact that
Rs.4 lacs were deposited by the borrower
towards the loan. The petitioner in his
rejoinder-affidavit has stated in paragraph
28 that borrower of the loan has entered
into a compromise with the bank and in
consequence whereof, some amount was
deposited by the borrower. He also
pointed out that the compromise was
approved by the General Manager on
17.8.2010 and the Zonal Office of the
Bank informed the same to Rudauli
Branch on 29.11.2010. This fact is
substantiated
by
the
letter
dated
29.11.2010 written by the Chief Manager
of the Bank to the proprietor of M/s Singh
Rice Mill, which is on record. When the
borrower had deposited the amount
towards the settlement of loan, no
financial loss has accrued to the Bank
there was no justification to recover the
same amount from the petitioner's gratuity
and provident fund. The Bank ought to
have modified the order of recovery or
recalled it but the same was not done.

33. The long and short of the
discussion and taking the holistic view of
the matter, the writ petition deserves to be
allowed, which is hereby allowed and the
impugned orders dated 25.6.2010 passed
by the Disciplinary Authority, 16.9.2010
passed by the Appellate Authority, the
order dated 6.8.2010 forfeiting and
recovery passed against the petitioner as
also the order passed on the application of
the petitioner dated 22.9.2010 are hereby
quashed. As the petitioner has already
attained the age of superannuation much
earlier, no useful purpose would be served
for ordering fresh enquiry in the matter.
Since the petitioner has attained the age of
retirement,
the
intervening
period
between the date of dismissal and date of
retirement shall be treated as period
rendered in service for the purposes of
payment of terminal benefits.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.8303 of 2013

Smt. Munesh Devi
 ...Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhuvnesh Kr. Singh, Sri Amit Srivastava,
Sri Amit Saxena, Sri Mohd. Akram, Sri
Ramesh Kumar Shukla, Sri Shamim Ahmed

Counsel for the Respondents:
C.S.C., Sri Abhishek Tiwari, Sri D.K. Singh
Sri G.K. Singh, Sri V.K. Singh

Constitution of India, Art. 226-Order recounting
of
votes-in
Gaon
sabha
election-on
application
defeated
candidate-only supported by number of
affidavit
reiterating
version
of
application-can
not
be
basis
for
recounting unless clinching evidence are
there-held
secrecy
of
ballot
is
sacrosanct-similarly statutory provision
can not be broken-unless prima faci case
made out-even recounting done-heldimmaterial-election tribunal committed
manifest error by passing order of
recounting-can not sustained-quashed.

Held: Para-17
1352 INDIAN LAW REPORTS ALLAHABAD SERIES
In the instant case, the Court finds that
there was no clinching evidence to show
any irregularity or illegality in the counting
of the votes or in the reception of the votes.
The only allegation was that certain votes
of dead persons were cast and certain
outsiders have cast the votes. These are
bald allegations which are required to be
proved by documentary and oral evidence,
which stage has not arrived as yet.

Case Law discussed:
AIR 1975 SC 2117; 1986(2) RD 151(FB);
(2003) 5 SCC 650; 2004(4) AWC 3667; AIR
1989 SC 640; AIR 1993 SC 367.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner is the elected Pradhan
having won by 21 votes. The petitioner
received 410 votes whereas the contesting
respondent received 389 votes. The defeated
candidate, being aggrieved by the result of
the election, filed an election petition alleging
that 13 votes were cast by those persons who
were actually dead and that 36 votes were
cast by such persons who were not the
resident of the village in question. On this
premise, the defeated candidate contended
that if these votes are excluded, the result
would be that he would get elected instead of
the petitioner.

2. The allegations made in para 7 of
the election petition were not supported or
accompanied by any documentary proof.
Consequently,
these
allegations
were
required to be proved by way of oral and/ or
documentary evidence. Prior to the evidence
being
led,
the
defeated
candidate's
application for inspection of the ballot papers
was allowed by an order dated 7.2.2013. The
order of inspection was passed on the basis
of certain affidavits filed by certain persons
reiterating the contention raised by the
defeated candidate in his election petition
and, on that basis, the Tribunal held that a
prima facie case was made out for the
inspection of the ballot papers.

3. The elected candidate, being
aggrieved by this order, filed the present writ
petition questioning the veracity of the order
in seeking inspection of the ballot papers and
in disturbing the secrecy and purity of the
election. This Court, while entertaining the
writ petition, passed an interim order dated
14.2.2013 directing the Election Tribunal to
continue with the proceedings but restrained
the Tribunal from passing any final orders. It
transpires that the Tribunal proceeded to
inspect the ballot papers and finding no
major irregularity, passed an order for
recounting of the ballot papers. This order
was passed on an application moved by the
defeated candidate on the same date. It
transpires that the recounting was done on
16.2.2013 in which it was depicted that the
defeated candidate secured more votes than
the petitioner. The order of 16.02.13 has also
been questioned by the petitioner in this writ
petition
by
moving
an
amendment
application which has already been allowed.

4. Heard Sri M.A. Qadeer, the
learned Senior Advocate assisted by Sri
Mohd. Akram, the learned counsels for
the petitioner and Sri D.K. Singh, learned
counsel for the respondents and learned
standing counsel for the State.

5. On the question of recounting of
votes the position of law has been
crystalized in a catena of cases by the
Supreme Court starting from Bhabi Vs.
Sheo Govind and others AIR 1975 SC
2117 in which, the Supreme Court held:

"(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;
3 All] Smt. Munesh Devi Vs. State of U.P. and Ors.
1353

(2)That before inspection is allowed,
the allegations 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 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."

6. A Full Bench of this Court in
Ram Adhar Singh v. District Judge,
Ghazipur and others, 1986 (2) RD 151
(FB) held that the authorities while
hearing the election petition under the
provision of U.P. Panchayat Raj Act can
be permitted to look into or can direct the
inspection of the ballot papers only upon
the existence of two conditions, namely;

" 1. that the petition for setting aside
an election contains the grounds on which
the election of the respondent is being
questioned as also the summary of the
circumstances alleged to justify the
election being questioned on such ground;
and

2. the authority is, prima facie,
satisfied on the basis of the materials
produced before it that there is ground for
believing the existence of such ground
and that making of such an inspection is
imperatively necessary for deciding the
dispute and for doing complete justice
between the parties."

7. The right of a defeated candidate
to assail the validity of an election result
and seek recounting of the votes is subject
to the basic principle that the secrecy of
the ballot is sacrosanct unless the defeated
candidate
alleges
and
is
able
to
substantiate by means of evidence that a
prima facie case of a high degree exists
for the recounting of the votes. The
salutary rule is, that the preservation of
the secrecy of the ballot is a sacrosanct
principle which cannot be broken unless
there is a prima facie case and that a
genuine
case
is
made
out.
The
justification
for
an
order
or
reexamination
of
ballot
papers
and
recounting of the votes is not to be arrived
at from hindsight or by the result of the
recount of the votes. The justification for
recounting of the votes must be made out
from the material available on the record.

8. In the light of the aforesaid
principles of law, the Court finds that in
the instant case an assertion of fact has
been made in paragraph 7 of the election
petition with regard to the alleged
irregularities. Certain affidavits have also
been filed but these affidavits are not
proof of the alleged irregularities and is
only an aid to support such allegations.
Issues have been framed and documentary
1354 INDIAN LAW REPORTS ALLAHABAD SERIES
and oral evidence is required to be given
in order to prove the allegations made in
the election petition.

9. The Court is of the opinion that
the Tribunal was not justified in ordering
inspection of the ballot papers and
thereafter recounting the votes. In the
absence of any clinching evidence, there
was no prima facie satisfaction of the
Tribunal to come to the conclusion that a
case was made out for inspection and for
recounting of the votes. The secrecy of
the ballot was sacrosanct and purity of the
elections was required to be maintained
strictly. The secrecy of the ballot could
not be violated on the mere ipsi dixie of
the Tribunal in the absence of a prima
facie case of a compulsive nature being
made out by the defeated candidate.

10. The learned counsel for the
respondents contended that even though
the order of inspection and recounting
may contain certain defects but once
recounting has been done pursuant to the
said order and the recounting declares a
different result, the will of the people is
known to everyone, and consequently, it
is a "fait accompli" and that the clock
cannot be turned back even if the secrecy
of the ballot had been violated. The
learned counsel contended that at the end
of the day, the person who has got the
maximum votes should be declared
elected and once this exercise has been
done, the will of the people must be
honoured and respected. The learned
counsel submitted that on a recount, the
elected candidate has secured more votes
than the petitioner and therefore the
elected candidate should now be declared
elected and that the writ petition should
be
dismissed.
In
support
of
his
submission, the learned counsel has
placed reliance upon a decision of the
Supreme Court in T.A. Ahammed Kabeer
Vs. A.A. Azeez (2003) 5 SCC 650,
wherein the Supreme Court, in paragraph
28, held-

"28. It is true that a re-count is not to
be ordered merely for the asking or
merely because the court is inclined to
hold a re-count. In order to protect the
secrecy of ballots the court would permit
a re-count only upon a clear case in that
regard having been made out. To permit a
re-count only upon a clear case in that
regard having been made out. To permit
or not to permit a re-count is a question
involving jurisdiction of the court. Once a
re-count has been allowed the court
cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the
pleadings. Once the court has permitted
re-count
within
the
well-settled
parameters of exercising jurisdiction in
this regard, it is the result of the re-count
which has to be given effect to."

11. The Supreme Court held that
once the recount has been allowed, the
Court cannot shut its eyes on the ground
that the result of the recount was found at
variance with the pleadings. The Supreme
Court held that once the Court had
permitted a recount within the well settled
parameters of exercising jurisdiction in
this regard, it was the result of the recount
which had to be given effect to. The same
principle was followed by this Court in
Arshadi Vs. Prescribed Authority/ Sub
Divisional
Magistrate,
Jakhania,
Ghazipur and others 2004(4) AWC
3667.

12. Having perused the said
judgements, the Court finds that the said
3 All] Smt. Munesh Devi Vs. State of U.P. and Ors.
1355
decisions are not helpful to the defeated
candidate, for the reasons stated herein.

13. In the Full Bench decision of
this Court in Ram Adhar Singh Vs.
District Judge, Ghazipur and Others
(supra), the facts were that the defeated
candidate filed an election petition and
obtained an order for recounting of the
votes. Recounting was done and the
defeated candidate was declared elected.
The full Bench of this Court considered
the matter and held that since the very
basis for recounting of the votes was
illegal and contrary to the accepted
position of law, all subsequent orders,
including the order of recounting of the
votes, was illegal and had to be set aside.

14. In P.K.K. Shamsudeen Vs.
K.A.M. Mappillai Mohindeen & Ors.
AIR 1989 SC 640, the Tribunal allowed
the petition and declared the defeated
candidate as having been duly elected as
he had secured more votes on a recount.
The High Court allowed the petition
holding that the Tribunal had erred in
directing recounting of the votes and that
the petitioner had not made out a prima
facie case for an order of recount. In
Special Leave Petition, the Supreme
Court held that an order of recount of
votes must stand or fall on the nature of
averments
made
and
the
evidence
adduced before the order of recounting
was made and not from the results
emanating from the recounting of the
votes.

15. In Satyanarain Dudhani Vs.
Uday Kumar Singh & Ors. AIR 1993
SC 367, the facts in this case were that the
elected candidate won by a narrow margin
of 24 votes. The defeated candidate
challenged the election by way of an
election petition. The Election Tribunal
rejected the contention of the defeated
candidate for the recounting of the votes.
The High Court ordered a recount and
allowed inspection of the ballot papers.
As a result of recounting, the defeated
candidate was found to have polled more
votes and as such was declared elected.
The High Court accordingly allowed the
election petition and declared the defeated
candidate to be duly elected. The matter
went to the Supreme Court and the
Supreme Court held that the High Court
was not justified in ordering recount and
allowing inspection of the ballot papers.
The Supreme Court, accordingly, set
aside the order of the High Court as well
as the declaration of the result of the
election of the defeated candidate as a
result of recounting.

16. In the light of the aforesaid
decisions, the Court finds that the
Supreme Court in the case of T.A.
Ahammed Kabeer (supra) as stated in
paragraph 28 that once the Court has
permitted recount within the well settled
parameters of exercising jurisdiction of
recounting it is only then that the result of
recount has to be given effect to. It
necessarily means that if the Court finds
that the order of recount was correct and
valid then the result of the recount has to
be given effect to, but if the order of
recount was illegal and against the settled
principles of law then the result of the
recount pursuant to such illegal order
could not be sustained and had to be set
aside.

17. In the instant case, the Court finds
that there was no clinching evidence to show
any irregularity or illegality in the counting
of the votes or in the reception of the votes.
The only allegation was that certain votes of
1356 INDIAN LAW REPORTS ALLAHABAD SERIES
dead persons were cast and certain outsiders
have cast the votes. These are bald
allegations which are required to be proved
by documentary and oral evidence, which
stage has not arrived as yet.

18. This Court is of the opinion that
it was not a proper exercise to order
recount on the basis of bare allegations in
the election petition. The Court has gone
through the pleadings in the election
petition and is satisfied that the grounds
given in the election petition does not
justify recounting of the votes or allowing
inspection of the ballot papers at this
stage. The Election Tribunal committed a
manifest error in violating the secrecy of
the ballot papers and tinkering with it.

19. In the light of the aforesaid, the
impugned orders dated 7.2.2013 and order
dated 16.2.2013 cannot be sustained and
are quashed. The writ petition is allowed.

20. The Trial Court is directed to
decide the matter within six months.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.09.2013

BEFORE
THE HON'BLE SHIVA KIRTI SINGH, C.J.
THE HON'BLE VIKRAM NATH, J.

Criminal Misc. Writ (P.I.L) Petition
No.9187 of 2013

In action of Police in lodging firs in
offences against Women
 ...Petitioner
Versus
State of U.P.

 ...Respondents

Counsel for the Petitioner:
By the Court Suo Moto
Counsel for the Respondents:
A.G.A.
Constitution of India, Art.-226- PIL-seeking
direction local police to lodge FIR-on
statement of victim recorded by Magistratewithin 24 hours-considering circular issued
by DGP-Police avoiding to lodge FIRdirection issued accordingly-to lodge FIR
promptly not belated than 24 hours from
recording statement by Magistrate-keeping
it open to send to concern police station for
investigation having territorial jurisdictionin case of default concern police officer shall
be
responsible
for
contempt-petition
disposed of.

Held: Para-5
In our considered view it is imperative
that in all the serious cases where the
victim is injured and his / her statement
has been recorded by a Magistrate /
Doctor then such statement or further
statement of that injured should be
recorded as FIR without any delay, in
any case within 24 hours of recording of
the statement. This alone shall ensure
that undue delay is not causing in
investigation and shall also subserve the
interest of justice.

(Delivered by Hon'ble Shiva Kirti Singh, C.J.)

1. Heard learned Government
Advocate, who has assisted the Court in
hearing of this matter, which has been
taken-up by the Court suo moto as Public
Interest Litigation vide order passed on
10th May, 2013.

2. On the last date learned Advocate
General assisted this Court in the matter and
placed before us an affidavit disclosing that a
DGP circular dated 22.05.2013 has already
been issued to take care of some of the issues
causing delay in lodging of FIR in serious
cases of burn etc. committed against women.
However the DGP circular does not contain
any direction to the police officials of the
nearest police station to record an FIR within
a reasonable time such as 24 hours time from
recording of the statement of the victim of a