# 8~2 JITENDRA BAHADUR SINGH v. KRISHNA BEHARI & ORS

- **Citation:** [1970] 1 S.C.R. 852
- **Court:** Supreme Court of India
- **Decided:** 1969-08-13
- **Case number:** Civil Appeal No. 1483 of 1968
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/8-2-jitendra-bahadur-singh-v-krishna-behari-ors-4712
- **Pages:** 7

## Headnote

8~2
JITENDRA BAHADUR SINGH
v.
KRISHNA BEHARI & ORS.
August 13, 1969
[K. S. HEGDE A:-ID A. N. RAY, ]].]
Election-Pe1ition for setting aside election-Application for scrutiny
of bal/oi papers-When can be ordered.
The first respondent, an elector, challenged the election of the appellant
to the Lok Sabha.
He alleged in£er alia, in the
election-petition that :
(I) only one counting agent of the. defeated candidate was permitted at
each table where three persons were counting simuhaneomly, and hence,
it was impossible 'for the counting agent to detect the wrong acts of the
counting staff \\·ho had adopted an attilude hostile to the defeated candidate; and (2) several votes of the defeated candidate were improperly rejected ignoring the protesls of the election agent cJf. that candidate, while
invalid votes and votes of the defeated candidale were counted in favour
of the appellant. The Schedule to the petition gave some figures elf such
improper rejection and improper acceptance.
In the verification
to the
petition it was stated that the allegations were made on the basis of information received from the \1:orkcrs and the counting agents of the defeated candidate and that lhe electiOn-petitioner believed the informalion
to be correct.
It v.•as hov..·evcr not stated in the petition \\1ho the workers
\vere and what was the basis of their information. 1'o v.Titten objection
was filed during the counting, ei1hcr to the acccp1ance or the rejection ell
any vote, nor "'as any such application made for a recount.
Before the trial of the clcclion-pelition !he elec1ion-petitioner filed an
application for permission 10 inspect the packets of ballot papers containing the accepted as \\'Cit as rejected votes of the candida1cs. In the affidavit
in !l.Upport of the petition he averred !hat on one of the days df counting.
he \\'as the counting agent o·t the
defe<'ted candidate arid had personal
knowledge of such improper rejection and acccprance. No other affidavit
of persons who could have had personal knowledge of the matter \\'as filed.·
The High Court allo\\·ed rhe applicJtion and permitted scrutiny solely on
the basis of the allegation<; in the election pi:tition and the affidavit
in
support of the application seeking scrutiny.
Jn appeal to this Court,
B
c
D
E
F
HELD : In view of the importance of maintaining the secrecy of the
balJot papers, scrutiny can only be ordered if the election-petition contains an adequate statement o·( the material facts on v.·hich the petitioner
relies, that io;, tire material facts disclosed rnusr afford an adequate hasi.r
G
for the al/egatinns: and, the clec1ion tribunal mu'5t be prima facie satisfied
that in order to decide the dispute and to do complete juo;1ice berween the
partic~ inspecrion of the ballo1 papers is ncccssJry. {855 G-H; 856 AJ
In the prc'ient case, the High Court stated that it was so satisfied on
the mere statement of some figures in the petition and affidavil.
It a1so
did not give any reason in support of its satisfaction a5 to the need for
H
inspection. (857 G-HJ
( 1) The petitioner had not stated
that
any o( the counting agents
appoinlcd by the defeated candidate or his election agent, in accordance
I
,
·-
•
1
•
J. B. SINGH v. K. BEHAR! (Hegde, J.)
853
A
with the rules, had been refused admission to the place of counting.
B
c
D
E
F
G
H
Therefore, the allegation that enough number of counting agents were not
permitted was not supported by any statement o'f material facts. [857 B-C]
(2) Similarly, with regard to the rejection of the votes
polled
in
favour of the de'feated candidate, under the rules, before a vote is rejected tbe agents of the candidates must be permitted to examine the concerned ballot paper, and therefore, the serial numbers of the concerned
ballot papers could have been noted.
The election petition, however,
is
silent as to the inspection and notes of the ballot papers and other material facts such as raising objections and asking for a ·recount. [857 C-El
Therefore, the s

## Text

8~2
JITENDRA BAHADUR SINGH
v.
KRISHNA BEHARI & ORS.
August 13, 1969
[K. S. HEGDE A:-ID A. N. RAY, ]].]
Election-Pe1ition for setting aside election-Application for scrutiny
of bal/oi papers-When can be ordered.
The first respondent, an elector, challenged the election of the appellant
to the Lok Sabha.
He alleged in£er alia, in the
election-petition that :
(I) only one counting agent of the. defeated candidate was permitted at
each table where three persons were counting simuhaneomly, and hence,
it was impossible 'for the counting agent to detect the wrong acts of the
counting staff \\·ho had adopted an attilude hostile to the defeated candidate; and (2) several votes of the defeated candidate were improperly rejected ignoring the protesls of the election agent cJf. that candidate, while
invalid votes and votes of the defeated candidale were counted in favour
of the appellant. The Schedule to the petition gave some figures elf such
improper rejection and improper acceptance.
In the verification
to the
petition it was stated that the allegations were made on the basis of information received from the \1:orkcrs and the counting agents of the defeated candidate and that lhe electiOn-petitioner believed the informalion
to be correct.
It v.•as hov..·evcr not stated in the petition \\1ho the workers
\vere and what was the basis of their information. 1'o v.Titten objection
was filed during the counting, ei1hcr to the acccp1ance or the rejection ell
any vote, nor "'as any such application made for a recount.
Before the trial of the clcclion-pelition !he elec1ion-petitioner filed an
application for permission 10 inspect the packets of ballot papers containing the accepted as \\'Cit as rejected votes of the candida1cs. In the affidavit
in !l.Upport of the petition he averred !hat on one of the days df counting.
he \\'as the counting agent o·t the
defe<'ted candidate arid had personal
knowledge of such improper rejection and acccprance. No other affidavit
of persons who could have had personal knowledge of the matter \\'as filed.·
The High Court allo\\·ed rhe applicJtion and permitted scrutiny solely on
the basis of the allegation<; in the election pi:tition and the affidavit
in
support of the application seeking scrutiny.
Jn appeal to this Court,
B
c
D
E
F
HELD : In view of the importance of maintaining the secrecy of the
balJot papers, scrutiny can only be ordered if the election-petition contains an adequate statement o·( the material facts on v.·hich the petitioner
relies, that io;, tire material facts disclosed rnusr afford an adequate hasi.r
G
for the al/egatinns: and, the clec1ion tribunal mu'5t be prima facie satisfied
that in order to decide the dispute and to do complete juo;1ice berween the
partic~ inspecrion of the ballo1 papers is ncccssJry. {855 G-H; 856 AJ
In the prc'ient case, the High Court stated that it was so satisfied on
the mere statement of some figures in the petition and affidavil.
It a1so
did not give any reason in support of its satisfaction a5 to the need for
H
inspection. (857 G-HJ
( 1) The petitioner had not stated
that
any o( the counting agents
appoinlcd by the defeated candidate or his election agent, in accordance
I
,
·-
•
1
•
J. B. SINGH v. K. BEHAR! (Hegde, J.)
853
A
with the rules, had been refused admission to the place of counting.
B
c
D
E
F
G
H
Therefore, the allegation that enough number of counting agents were not
permitted was not supported by any statement o'f material facts. [857 B-C]
(2) Similarly, with regard to the rejection of the votes
polled
in
favour of the de'feated candidate, under the rules, before a vote is rejected tbe agents of the candidates must be permitted to examine the concerned ballot paper, and therefore, the serial numbers of the concerned
ballot papers could have been noted.
The election petition, however,
is
silent as to the inspection and notes of the ballot papers and other material facts such as raising objections and asking for a ·recount. [857 C-El
Therefore, the scrutiny of the ballot papers was sought on the basis
of mere assertions and allegations which were neither accompanied by a
statement of material facts nor were they supported by any evidence; and
hence, the High Court should have rejected the application for scrutiny.
r857 Fl
Ram Sewak Yadav v. Hussain Kami[ Kidwai, [19641 6 S.C.R. 238 and
Dr. Jagjit Singh v. Giani Kartar Singh, A.LR. 1966 S.C. 773, followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1483 of
1968.
Appeal by special leave from the judgment and order dated
May 21, 1968 of the Allahabad High Court, Lucknow Bench in
Civil Misc. Applications Nos. 41 (E) and 42(E) of 1968 in Election Petition No. 7 of 1967.
C. B. Agarwala, V. P. Joshi and S. S. Khanduja, for the appellant.
G. N. Dikshit, R. N. Dikshit and 0. P. Saini, for respondents
Nos. 1 and 9.
The Judgment of the Court was delivered by
Hegde, J.
This appeal by special leave is directed against the
order made by Sahgal, J. on May 21, 1968, permitting the 1st
respondent, an elector cha1lenging the validity of the election of
the appellant to Lok Sabha from 15, Shahabad Parliamentary
Constituency in the general election held in 1967, to inspect the
packets of ballot papers containing the accepted as wel! as the
rejected votes of the candidates .
In the election in question as many as 10 persons coilltested.
The appellant, the Jan Sangh nominee was the successful candidate.
The 9th respondent, Shri Nevatia Rameshwar Prasad, the
Congress nominee was his μearest rival.
In the election petition,
the petitioner not only wants the appellant's election to be held
void, he also wants that the 9th respondent should be declared
elected.
The election of the appellant has been challenged on
various groll!Ilds, with most of which we are not at present concerned.
We are only concerned with the a1legations relating to
the irregularity in the scrutinising and counting o.f votes.
The
854
SUPREME COURT REPORTS
(1970) I S.C.R.
averments relating thereto are found in paragraphs 13 and 14 of
the electiqn petition.
They are as follows :
( 1 ) only one counting agent was permitted at each
table
whereas three persons were doing the counting work simultaneously
and it was impossible for one man to look into and detect the
wrong acts of three persons at the same time.
U~der this head it was further mentioned that the counting
staff was from amongst the government servants who had gone on
two months strike before the election and du:ing the elections they
had adopted hostile attitude towards the congress candidates and
had made efforts to bring about their defeat;
(2) the bundles of votes of either candidates were neither
properly made nor properly scrutinised;
(3) about 5,000 votes of the congress candidates were improperly rejected ignoring the protests of Mr. Malhotra, the election agent of the congress nominee;
( 4) invalid votes were counted in favour of the returned
~didate. The votes of the congress candidates were counted
for .the returned candidate.
In Sch. 'E' certain figures showing the alleged
improperly
rejected as well as accepted votes pertaining to certain booths are
mentioned.
It also shows the number of votes of the
con~ress
nominee counted as the votes of the returned candidate.
Neaher
the petitiqn nor the Schedule discloses the basis for arrivin;; at
those figures.
The election petitioner is neither the candidate nor his election
agent.
In the election petition, it was not stated that he was
even the counting agent.
In the verification appended to the election petition, it was averred that the allegations contained in paragraphs 12 to 15 of the election petition were believed by the
petitioner to be true on the basis of the informatiqn received from
the workers of the congress nominee and others which means that
the allegations made by him in_ paragraphs 13 and 14 of the election petition were based on hearsay information.
He does not
and he could not vouchsafe their accuracy though he claims to
have believed the information given to him to be correct.
Similarly in the verification appended to Sch. 'E', the election petitioner
stated that he has given the information contained in that Schedule
. On the basis of the information received from the COIUlting agents
of the congress nominee.
Neither in the election petition nor in
the Schedule he mentioned that the counting agents had given
him the information in question on the basis of any record made
by them.
A
B
c
D
E
'
F
...
G
H
-
A
I
B
c
D
E
/
F
•
G
H
J. B. SINGH v. K. BEHAR! (Hegde, J.)
855
In the affidavit filed by the petitioner in support of his application seeking permission to inspect the ballot paper_s, he went one
step further.
Therein he averred that on one of the days when
the counting was going on, he acted as Q\11e of the counting agents
for the congress nominee.
Hence he claims to have personal
knowledge of the rejection of some valid votes and the acceptance
of some invalid votes. No, affidavit of either the congress nominee
or his election agent or any of the persons who could have had
personal knowledge of the matter was filed in support of that
application.
No oral evidence has been taken in the case till now.
The returned candidate has denied the allegations referred to earlier.
It is true that some of the defeated candidates in their written statements have font support to the allegations made by the
election petitioner.
The reason for the same is obvious.
But
even they have not filed any affidavit in support of the concerned
allegations.
Solely on the basis of the averments made in the election petition and the facts sworn to in the affidavit filed by the
election petitioner in support of his application seeking scrutiny of
the ballot papers, the trial court had issued the impugned direction.
Before proceeding to consider the material in support of the
impugned order, it is necessary to mention that it is mot the case
of the election petitioner that any written objection had been filed
during the counting either to the acceptance or to the rejection of
any vote.
In the petition, it is averred that "the Returning Officer
on being pointed out by the election agent of respondent No. 9,
Shri P. C. Malhotra, said his decision was final and can be questioned through Election Petition".
Evidently this averment relates
to the objections said to have been taken by Shri Malhotra in respect of the orders made by the returning officer as to the validity
of some of the votes. Apart from the fact that the allegation in
question is very vague and lacking in details, not even an affidavit
of Shri Malhotra has been filed in support of that allegation.
Admittedly no appli9ation was made to the returning officer for
recounting the votes.
We have to examine the facts of this case
bearing in mj,nd these circumstances.
The importance of maintaining the secrecy of ballot papers
and the circumstances under which that secrecy can be violated
has been considered by this Court in several cases.
In particular
we may refer to the decisions of this Court in Ram Sewak Yadav
v. Hussain Kami! Kidwai and ors. (1) and Dr. Jagjit Singh v. Ciani
Kartar Sini<h ( 2). These and other decisions of this Court and of
the High Courts have laid down certain basic requirements to be
satisfied before an election tribunal can permit the inspection of
ballot papers.
They are :
. ( 1) that the petition for setting aside the election must contam an adequate statement of the material facts on which the peti-
(1) [1964] 6 S.C.R. 238.
(2) A.T.R. 1966 S.C. 773 .
•
856
SUPREME COURT REPORTS
[l 970] l S.C.R.
tioner relies in support of his case and (2) the tribunal must be
prima facie satisfied that in order to decide the dispute and to do
complete justice between the parties, inspection of the ballot papers
is necessary.
The trial court was of the opinion that if an election petitioner
in his election petition gives some figures as to the rejection of valid
votes and acceptance of invalid votes, the same must be considered
as an adequate statement of material facts.
In the instant case
apart from giving certain figures whether true or imaginary, the
petitioner has not disclosed in the petition the basis on which he
arrived at those figures.
His bald assertion that he got those
figures (rom the countin~ agents of the congress nominee cannot
afford the necessary basis.
He did not say in the petition who
those workers were and what is the basis of their information ?
It is not his case that they maintained any notes or that he examined their notes, if there were any.
The material facts required to
be stated are those facts which can be considered as materials
supporting the allegations made. In otlier words they must be
such facts as to afford a basis for the allegations made in the petition.
The facts stated in paragraphs 13 and 14 of the election
petition and in Schedule 'E' arc mere allegations and are not material facts supportin~ those allegations.
This Court in insisting
that the election petitioner should state in the petition the material
facts was referring to a point of substance and not of mere form.
Unfortunately the trial court has mistaken the form for the substance.
The material facts disclosed by the petitioner must afford
an adequate basis for the allegations made.
The learned trial judge while deciding the point in issue overlooked certain important circumstances.
The election petition is
silent as regards certain important aspects.
This omission has
bearing on the point to be decided.
The allegation that the returning officer did not permit the appellant more than one counting
agent for each counting table is an extremely vague a!lcgation.
It is not the election petitioner's case that the congress nominee
had appointed more than one counting agent for any counting
table but the returni·ng officer did not accept their appointment.
Under s. 47 of the Representation of People Act, 1951, a contes•-
ing candidate or hls election agent may appoint in _the prescribed
manner one or more persons but not exceeding such arnmbcr as
may be prescribed by the rules, to be pre.sent as his counting agent
or agents at the counting of votes and when any such appointment
is made notice of the appointment shall be given in the prescribed
manner to the returning officer. Rules framed under that Act prescribe the mumber of counting agents that a cand:date may appoint.
The form of the notice required to be given under s. 47 of the
Act is given in the rules.
The appointment of the counting agents
A
B
c
D
E
F
G
H
•
I\
' '
A
B
c
D
E
F
G
H
J, B. SINGH v. K. BEHAR! (Hegde, J.)
857
is to be made in the prescribed forms in duplicate, one copy of
which is to be forwarded to the returning officer while the other
copy should be made over to the counting agent. Rules also provide that no counting agent shall be admitted into the place fixed
for counting unless he has delivered to the returning officer the
second copy of the imtrument of !tis appointment a.fter duly completing and signing the declaration contained therein. The petitioner did not state in the election petition that any of the counting
agents appointed by the congress candidate or his election agent
in accordance with the rules had been refused admissi0\11. to the
place of counting. .Hence the allegation that the returning officer
did not permit enough number of counting agents to be appointed
is not supported by lllJ.Y statement of facts necessary to be stated.
In other words the material facts relating to the allegations made
have not been stated.
Now coming to the rejection of the votes polled in favour of
the congress nominee, under the rules before a vote is rejected the
agents of the candidates must be permitted to examine the concerned ballot paper. Therefore it was quite easy for them to note
down th_e serial number of the concerned ballot papers. The election petition is silent as to the inspection of the ballot papers or
whether the counting· agents had noted down the serial numbers ·
of those ballot papers Qt whether those agents raised any objection
relating to the validity of those ballot papers;
iif so who those
agents are and what are the serial numbers of the ballot papers to
which each one of them advanced their objections. These again
are the material facts required to be stated.
As seen earlier the allegations made in the election petition
are purported to have been founded oin the informations given by
others. No one takes direct responsibility for those allegations. No
oral evidence was given in support of them, not even affidavits
were fil.~d in support of the allegations. The scrutiny of ballot
papers was sought on the basis of assertions which were neither accompanied by a statement of material facts nor supported by any
evidence.
The trial court correctly came to the conclusion that before
an order of inspection of the ballot papers can be made it must be
prima facie satisfied that ~n order to decide the dispute and to do
complete justice between the parties, inspection of the ballot papers
is necessary. It did srfy that it was so satisfied but it gave no reasons
whatsoever as to how it came to be satisfied. A judge can be satis'
fled only on the basit of proof and not on the basis of mere allegations.
There is absolutely no proof in this case to support the
alJegatior.s on the basis of w4ich the scrutiny of the ballot papers
was prayed for.
The trial court did not meintion in its order even
a single reason in support of its satisfaction as to the need for _
858
SUPREME COURT REPORTS
[1970) l S.C.R.
inspecting the ballot papers.
Every judicial order must be based
A
on reasons and those reasons must be disclosed in the order itself.
Unfortunately the learned trial judge had overlooked the importance to be attached to the secrecy of the ballot papers.
We have earlier referred to the principles enunciated by this
Court to be followed before ordering the scrutiny of bailot papers.
The legal position in England is the same as in this country. In
fact our election law is patterned on the basis of the English Election Law.
In Ha/.sbury's Laws of E11g/a11a ( Vol.14 at page 310,
paragraph 559), it is observed :
"The usual practice is for an application. for a recount to be made by summons to a judge oh the rota
for the trial of parliamentary electio!l petitions
before
the trial on an affidavit showing the grounds on which
the application is based.
A r~count is not granted as
of right, but on evidence of good grounds for believing
that there has been a mistake on the part of the returning officer."
In Rogers on Elections (Vol. II at p. 199) it is observed that an
application for recount should be made by summons supported by
affiidavits showing growi'<ls.
Fraser in his Law of Parliamentary
Elections and Election Petitions observes at p. 222 :
"A strong case must be made on affidavit before an
order can be obtained for inspection of ballot papers or
counterfoils".
Even before the Representation of the People Act, 1951 wa' enacted the law in this country relating to inspection of ballot papers was
as stated earlier. The election tribunals in this country have refused
to permit the scrutiny of ballot papers unless there was prima
facie evidence in support of the allegations made in the election
petition-see Tanjore, N.M.R. (Hammond's Election Cases 673);
Punjab North Case (Hammond's E/ectio11 Cases 569). Karna/
Mohammadan Constituency Case (2 Doabia 235); Kamal (South)
General Comtituency Case (2,Doabia 80); Chingleput Case (Hammond's Election, Cases 307); see also R. Swaminath's Case
(2,
E.L.R. 51); Seshaiah v. Kati Reddi (3, E.L.R. 39) and Laks/1umanayya v. Rajam Aiyar (58 M.L.J. 118).
For the reasons mentioned above we allow this appeal and set
aside the order made by the ]earned trial judge. He will now proceed with the trial of the case in accordance with Jaw. The !st respandent, the election petitioner shall pay the costs of the appellant
m this appeal.
V.P.S.
Appeal allowed.
B
c
D
E
F
G
H
i
,_
I
'
I