# BALDEV SINGH v. TEJA SINGH SWATANTAR (DEAD) & ORS

- **Citation:** [1975] 3 S.C.R. 381
- **Court:** Supreme Court of India
- **Decided:** 1975-01-24
- **Case number:** ': Civil Appeal No. 233 of 1973
- **Bench:** A. Alagiriswami, V. R. Krishna Iyer, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baldev-singh-v-teja-singh-swatantar-dead-ors-6398
- **Pages:** 13

## Headnote

Election-Conduct of Election Rules, r. 63-Returning Officers duty to re·
count, when arises-Power of Court to order recoum-Scope of.
.
For a Parliamentary seat in the State of Punjab the appellant, a candidate of
the Akali Dal, and the first respondent, the nominee of the Communist Party of
India, were two of the contesting candidates. The total number of votes polled
were 344073 out of which 7663 were invalidated. The first respondent was de·
clarecf elected by a margin of 210 votes. Even at the time the counting was com·
pleted the appellant applied to the Returning Officer for a recount but the application was rejected as premature. Soon after the. announcement of the votes polled
by each candidate the appellant applied again for recount, under r. 63 (2) of the
conduct of Election Rules. The Returning Officer rejected this application also.
The appellant filed an election petition and contended that, the attitude of the
counting staff was hostile to the appellant and his party, and that there were many
irregularities in rejecting votes in favour of appellant, in accepting vote in favour
of the !st respondent, and in the counting and prayed for a general recount.
The High Court, by an interim order ordered a limited recount of votes in
one of the segments of' the constituency and that order was affirmed by a consent order in this Court 'to cover the votes of both the contestants. This recount
revealed some errors but did not tilt the scale in favour of the appellant. The
election petition was ultimately dismissed by the High Court.
HELD : ( 1) On \he evidence there is no force in the appellant's conten·
tion about either official bias or of violation of rules. If there had been any manipulation by the counting stall' the matter would have been brought to the notice
of the Returning Officer and the senior officers present for supervising the counting and deciding disputes, reference to it would have been made in the two applications for recount, and in the appellant's application to the Election Commissioner for inspection. Moreover, the alleged biased behaviour is disproved by the
accuracy disclosed in the recount, the marginal error being more or less similar
in the case of both the candidates. [388 C-F]
<2) The Returning Officer was in error in disallowing the recount. Under r.
63 the mandate for recount is not the exception, and refusal is restricted to cases,
where the demand itself is 'frivolous or unreasonable'. Where the margin of dif·
ference i~ minimal the claim for a fresh count cannot be summarily brushed aside
as futile or trumpery. If formal defects had been misconstrued as substantial in·
firmities or vice versa· resulting in wrongful reception or rejection, the s<X'ner it
was set right the better, especially when a plea for a second inspection b.ad been
made on the spot. Prestige or fatigue should not inhibit a fresh or a partial
check. The instructions contained in para 17, cl. (nn) of the Procedure for
Counting in the Handbook for Returning Officers requires the Returning Officer
to ensure further accuracy in the counting of votes by making 5 % test check.
The Returning Officer, in the present case, had not done so, but that is no
ground for this Court td order recount or to reverse the decision of the High
Court refusing recount. [385 G-386 B; 392 C-G]
( 3) While the Returning officer .should be liberal, the power of the Court to
order recount which is undoubted, should be exercised sparingly. Even if there
is difficulty in giving the serial number of voting papers illegally rejected or received an application made for inspection of ballot boxes mmt give material facts
whlch would enable the tribunal or the Court to consider whether in the interests
of justice, the. ballot boxes ~.hould b~ insp~cted or ~ot. .In dealing gen~ral allega·
t;ons that valid votes were llilProperly re1ected or 1nvahd votes were •moroperly
accepted, would not serve th111 purpose which is provided for ins. 83(1)(a). In·
dealing wit

## Text

_Characters 0–39,860 of 41,520. This is a partial read: ask again with offset=39860 for what follows._

A
B
c
D
E
F.
G
H
BALDEV SINGH
v.
TEJA SINGH SWATANTAR (DEAD) & ORS.
January 24, 1975
38 l
[A. ALAGIRISWAMI, V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]
Election-Conduct of Election Rules, r. 63-Returning Officers duty to re·
count, when arises-Power of Court to order recoum-Scope of.
.
For a Parliamentary seat in the State of Punjab the appellant, a candidate of
the Akali Dal, and the first respondent, the nominee of the Communist Party of
India, were two of the contesting candidates. The total number of votes polled
were 344073 out of which 7663 were invalidated. The first respondent was de·
clarecf elected by a margin of 210 votes. Even at the time the counting was com·
pleted the appellant applied to the Returning Officer for a recount but the application was rejected as premature. Soon after the. announcement of the votes polled
by each candidate the appellant applied again for recount, under r. 63 (2) of the
conduct of Election Rules. The Returning Officer rejected this application also.
The appellant filed an election petition and contended that, the attitude of the
counting staff was hostile to the appellant and his party, and that there were many
irregularities in rejecting votes in favour of appellant, in accepting vote in favour
of the !st respondent, and in the counting and prayed for a general recount.
The High Court, by an interim order ordered a limited recount of votes in
one of the segments of' the constituency and that order was affirmed by a consent order in this Court 'to cover the votes of both the contestants. This recount
revealed some errors but did not tilt the scale in favour of the appellant. The
election petition was ultimately dismissed by the High Court.
HELD : ( 1) On \he evidence there is no force in the appellant's conten·
tion about either official bias or of violation of rules. If there had been any manipulation by the counting stall' the matter would have been brought to the notice
of the Returning Officer and the senior officers present for supervising the counting and deciding disputes, reference to it would have been made in the two applications for recount, and in the appellant's application to the Election Commissioner for inspection. Moreover, the alleged biased behaviour is disproved by the
accuracy disclosed in the recount, the marginal error being more or less similar
in the case of both the candidates. [388 C-F]
<2) The Returning Officer was in error in disallowing the recount. Under r.
63 the mandate for recount is not the exception, and refusal is restricted to cases,
where the demand itself is 'frivolous or unreasonable'. Where the margin of dif·
ference i~ minimal the claim for a fresh count cannot be summarily brushed aside
as futile or trumpery. If formal defects had been misconstrued as substantial in·
firmities or vice versa· resulting in wrongful reception or rejection, the s<X'ner it
was set right the better, especially when a plea for a second inspection b.ad been
made on the spot. Prestige or fatigue should not inhibit a fresh or a partial
check. The instructions contained in para 17, cl. (nn) of the Procedure for
Counting in the Handbook for Returning Officers requires the Returning Officer
to ensure further accuracy in the counting of votes by making 5 % test check.
The Returning Officer, in the present case, had not done so, but that is no
ground for this Court td order recount or to reverse the decision of the High
Court refusing recount. [385 G-386 B; 392 C-G]
( 3) While the Returning officer .should be liberal, the power of the Court to
order recount which is undoubted, should be exercised sparingly. Even if there
is difficulty in giving the serial number of voting papers illegally rejected or received an application made for inspection of ballot boxes mmt give material facts
whlch would enable the tribunal or the Court to consider whether in the interests
of justice, the. ballot boxes ~.hould b~ insp~cted or ~ot. .In dealing gen~ral allega·
t;ons that valid votes were llilProperly re1ected or 1nvahd votes were •moroperly
accepted, would not serve th111 purpose which is provided for ins. 83(1)(a). In·
dealing with this question the importance of secrecy of the ballot papers cannot
10-423SCij75
382
SUPREME COURT REPORTS
[1975] 3 s.c.R.
hr ignored. The statutory rules framed unde~ Act ar~ int~i:ded to provide ad~
quate safeguard for the examination of the vahd1ty or !nvahd~t¥ of votes for their
proper counting. Care must be taken to see that elect10n pet1t10ners do not. ge~ a
chance to make a roving or fishing enquiry into the ballot boxes so as to Justify
their claim that the returning candidate's election is void, and to threaten the
certainty of the poll by fiippan•. recounts. [390 D-H; 392 G-H; 393 C-DJ
Jagiit Singh, A.I.R. 1966 S.C. 774, 783 and Chanda Singh v. Choudhary Shiv
Ram Verma, Civil Appeal No. 1185 of 1973, decided on 20-12-1974, followed.
In the present case. the High Court construed r. 56 of the rul~s in the light
of r. 38 and tool:: the view thM the ballot paper shall not be reiected merely
on the ground of a formal defect as the accidental omission of the signiiturc. of the
Presiding Officer, without the Returning Officer proceeding to consider if such
defect was occasioned by the inadvertance or lapse of the Presiding Officer or
the Polling officer, and ordered a limited recount rightly. However, the number
of totally rejected ballot papers of all candidates when subjected to a repeated
scrutiny yielded disapp;.1inting results from the point of view of the. appellant.
Out of 1096 rejected ballot papers only 17. claimed by the appellant, and 7, by
the first respondent, were found faulty. Therefore, the High Court was right in
refosing to grnnt a recount on a comprehensive scale.
(387 E-HJ
( 4) Even in the application to the Election Commission the plea for inspection
of the used ballot papers was primarily confined to one Assembly segment and
the rejected ballots of other assembly segments. In regard to that plea, the
petition gave details, but not a scintilla of evidence, on which the Court could
act, was present on the record to prove prima facie, what has been alleged. Therefore. refusal of recount was not imp10per.
[391 B, D-E·]
CIVIL APPELLATE JURISDICTION': Civil Appeal No. 233 of 1973.
From the judgment and order dated the 18th October, 1972, of
the
Punjab and
Haryana High
Court in Election Petn. No. 2
of 1971.
Hardev Singh, "11'1. S. Gupta, and R. S. Sodhi, for the appellant.
S. C. Agarwala.. for respondent no. 1.
M. R. K.. Pillai, for respondent no .. 4.
The Judgmer:t of the Court was delivered by
A
B
c
D
E
KRISHNA IYER, J. The dual prayers in the election petition,
F
by the worsted appellant, related to (a) invalidation of the 1st respondent's election; and (b) the further submission that inst.e:id, the
·petitioner/appellant be declared
successful from
the
12-Saiigrur
Parliamentary constituency. The petition was dismissed by the High
Court and the appellant has repeated both his reliefs in this civil·
appeal.
However, by the time the appeal came up for hearing, the
J st respondent, the returned candidate,
passed
away,
but Hari
G
Agrawala, Advocate, has sought to appear for an elector from
the
constituency,
on
the
score
that
the whole
constituency
is,
a
sense,
before
the
Court
and
anyone
from
the
constituency is entitkd to
oppose the election petition and also the
election appeal. There is no doubt that the democratic order sustains
itself on the rectitude at the polls and disputes affecting elections are
not like private litigation but of public concern. Viewed thus. the
H
question raised is nm free from do~.1bt and indeed it may be appropriate for Parliament to consider whether a provision analogous
to
A
B
c
0
E
F
G
H
BALDEV SINGH v. TEJA SINGH (Krishna Iyer, !.)
38 3
s. 116 of the Representation of. the People Act,
1951 {hereinafter
called the Act, for short) enablmg the constituency to be' alerted and
to int;,,rvene even at the appellate level, should not be explicitly provided for, as at the trial stage.
Be that as it may, we do not think
it necessary to do anything more than hear Shri Agrawala more as
amicus curiae than by any right inhering in an elector to intervene
in the appeal.
The decisions brought to our notice do not clothe
an officious elector with a right to be impleaded in appeal pro bono
publico, absent express words to that effect. At the close of the
appellant's submissions we did not f.eel the need to hear Shri Agrawala,
since nothing in the persuasive arguments of Shri
Hardev
Singh
induced us to alter the finding of the High Court on the sole
and
central issue of a right to recount.
The 111w regarding recount is, by now,
well
settled
although
defeated parties are not disenchanted from challenging the validity
of the count through election petitions and persistent appeals.
On
the other hand, election petitions make averments manipulated to
meet the requirements each new decision insists on.
Even so, the
facts of this case-not the merits of the claim-prompt us to make a
pertinent observation.
When the primary grievance of a party
is
error or other vitiating circumstance in the count and some ground
not 'frivolous or unreasonable' exists, many candidates 1rek into the
High Court complaining of ignored demands for a fresh
countin?,
despite the existing guidelines in this
bel1alf.
The
circumstanc' •. ,
present here constrain us to make some concrete observations on the
subject at a later stage in the hope that election authorities will respond sensitively on demand and reduce, by ready recount, the avoidable feeling of injustice of rebuffed rivals in a close contest.
The
volume of election litigation may well shrink given
more
creative
imagination and liberal approach in the exercise of powers
under
r. 63 of the Conduct of Elections Rules, 1961, instead of being rigid,
resistant and indifferent.
A stitch in time saves nine.
FACTS
A plurality of five candidates ran for the 12-Sangrur parliamentary
seat in Punjab in the General Elections held in March 1971.
(Sad
that we are in 1975, interlocutory litigative episodes having spun to
such length despite only a simple issue of recount being involved in
the whole case?) TI1e only two contestants who hotly and hopefully
battled for success were the petitioner-appellant, the candidate of the
Akali Dal and respondent no. 1, the nominee of
the Communist
Party of India.
T.he total votes polled were of the order of 3,44,073
cf whicb 7,663 ballots were invalidated.
The tiny margin of 210
votes, by which respondent no. 1 was declared successful, apparently
appetised the appellant into attacking the methodology, arithmetic
:md impartiality of the count and, indeed, the High
Court
went
half-way with him on this score, as we will presently discuss.
Even
at the time the cog.nting was completed on March 12.
1971
the
petitioner presented an application to the Returning Officer demanding a recount.
On some minor technical ground the application was
384
SUPREME COURT REPORTS
[1975] 3 s.c.R.
held premature, the formalities of completing Form 20 not having
been gone through.
However, soon after the announcement of the .
votes polled by each candidate under sub-r. ( 1) of r. 63 of the rules,
the petitioner made a second, timely, application for recount under
sub-r. (2) of that rule..
The Returning Officer, however,
reje<;ted
this application also although here were sat out
several - grounds,
some of which are the same as those urged in the election petition
itself.
The petitioner, however, moved the
Election
Commis.sion
for a recount under sub-r. ( 1) of r. 93.
The Commission 'having
been satisfied that the Inspection, as prayed for by the appellant, is
necessary to further the ends of justice without, at the
same time,
violating the sc:crecy of the ballot' directed the District Election Offi~
cer of Sangrur District to open the sealed box of votes polled
in
favour of the candidates in respect of 86-Dhuri Assembly Constituency,
a segment of 12-Sangrur parliamentary constituency, and the' paekets
containing the rejected votes of the Sangrur Parliamentary Constituency and p1;rmit the appellant to inspect them.
However,
this
Jpention was not gone through since the High Court, when moved
by writ petition, stayed the order of the Commission; and, thereafter,
a regular elec1ion petition was filed where the, whole focus was turned on the issue of recount.
The various
gi'ounds
warranting
a
recount put forward by the petitioner were duly denied by th1; 1st
respondent. The limited recount of one of the segments
of
the
Parliamentary constituency, namely, Sherpur, was
allowed
by
the
High Court and affirmed by a consent order by this Court, amplifying the recount to cover the votes of both the contestents.
This
revealed some errors but did not produce the desired result of ·tilting
the scales and the petitioner pressed for a wholesale recount all.egir:g
serious infirmities which we will presently refer to.
The petitioner has set out as full a statement as he could of the
material facts and particulars on which he relied in his election petition.
The prejudicial features about the telling process were both
general and segmantwise.
Let us take a look at them.
The Akali
Dal w~ the ruling party and the subordinate services had
pressed
militantly for increased dearness allowance and the State Government
is alleged to have rejected the plea even for interim relief, with
alleged hostile repercussions :
"The hostile attitude of the Subordinate Services Federation and its employees against the Punjab Government and
the ruling party of which the Petitioner was a candidate had
prompted the counting assistants and the counting supervisors at different stations to act ma!afidely, arbitrarily and
discriminately in the scrutiny, counting and bundling of the
votes at the different centres and it was for this reason that
whereas the ?etitioner had received a majority of votes but in
the counting of the votes which was done in an unfair, uniust,
illegal and malafide manner, the Returning Officer, Shri C. D.
Cheema, declared resoondent No. 1 electeld though in fact
he had not secured majority of votes.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
BALDEV SINGH v. TEJA SINGH (Krishna Iyer, /.)
38 5
Prompted 1:zy the same animus,
"the counting agents of the petitioner were not ~llowed
any opportunity to inspect and note the serial numbers of
the ballot papers which had been either illegally
rejected
though in fact polled in favour of the petitioner or wrongfully accepted and counted in favour of the returned candidate. This request of the counting agents of the petitioner was
turned down on the plea of secrecy of votes and the counting
agents were told by these assistants and other staff that they
had been directed not to allow any
counting agents
or
candidate' to know or note down the serial numbers of the
ballot papers."
Admittedly, certain reforms had been made in the manner of
mixing all the ballot papers and the mechanics
of
counting
and
bundling.
The serial number of the ballot was no longer
printed
on its face but on the reverse which disabled identification of the
said number by the telling agents of the candidates.
These mutations
in methodology were motivated by the need to secure better the
secrecy of the vote, a sanctified principle of free elections, and applied
to the whole country.
But the petitioner was aggrieved that his men
could not note the serial numbers and the new method threw hurdles
in the way of proper check bi1y the telling agents of the scrutiny of
the voting papers.
The erection petitioner (vide para 9 of the petition) proceeded
to particularise the prejudice he suffered, Assembly constituency-wise,
and claimed that the result of the poll had
been materially
and
adversely affected thereby.
He has specified distinct and
different
grounds regarding the various 'segments' or Assembly constituencies
and naturally he cannot telescope or mix up these distinct mischiefs
or mistakes or switch grounds from one to . the
other.
We
will
examine' the omnibus criticisms and special complaints voiced in the
petition against the background of a brooding fear of a negligible
lead the 1st respondent had obtained as being possibly due to unwitting error iu the considerable, continuous counting simultaneously
on several table:s, in envfronment not altogether tranquil.
The petitioner levelled many general
accusations,
apart from
_bias qf the counting staff, about the whole process of counting and
has examined P.W. 5, the Returning Officer, to substantiate
these
infirmities.
The witness did candidly admit that he did not do any
5% test-check or any other random count.
Had he been faithful
to the instructions in the Handbook of Instructions issued, he might
have acted differently.
For, the instructions contained in dause (nn)
of para 17 of the Procedure for Counting given at p. 7 4
of
the
Handbook for Returning Officers, runs thus :
"To ensure further accuracy in the counting of votes,
five per cent of the total number of bundles of valid ballot
386
SUPREME COURT REPORTS
[1975] 3 s.c.R.
papers of the different contesting candidates s?all be counted
by you. You wm make your selection of thIS five per cent
in such a manner that it contains bundles pertaining to th<:
different contesting candidates." .
P. W. 5 was unmindful of this guideline, which was a faux pas.
While we a:re not disposed to direct a recount solely on the basis of
this peccadillo, we stress the need for strict !l-dherence to instructi~ns
calculated to make returns error-proof by officers concerned. Cavalier
attitude or jaded indifference cannot be condoned.
The petitim~r has itemised separate infirmities in regard to each
segment witl1 inventive ability and imaginary precision.
But W<~ are
not inclined to attach weight to these seeming grievances
in .. the
light of P. W. S's clear testimony that barring the requests for recount
'no complaint of any kinli was voiced before me by anyone in
connection with the counting of votes'.
Indeed,
he
added :
'no
complaint regarding any official was received from the Akali party
during the election campaign in this constituency'.
Disposed, as we
are, to accept this evidence, we find no for·ce
in
the petitioner's
be wailing about official bias and violation of rules.
One complrunt
which needs mention is that the counting officials declined to disclose
the serial numbers of voting papers which were objected to. It is
true that there is a clear departure in the present system, rec1~ntJiy
introduced, whereby serial numbers are printed on the reverse so as
not to be visible on the face.
This is intended to ensure secrecy of
the ballot.
May be that in consequence candidates who
challenge
illegal rejection or reception of votes may not be able to furnish. the
serial numbers of the ballot papers in thdr election petitions or
elsewhere. Some rulings of this Court (see for eg. J. B. Singh v. K.
Behari) (1) based on the earlier practice of printing serial ntumbers had
indicated the need to give these numbers to persuade 1he,Court to
grant a recount. The change in the method of printing the serial numbers obviously makes it difficult to observe what is at the back of tile
paper and we agree that this omission cannot go against an otherwise
well-grounded request for inspection of ballots by
court.
Judicial
;approach must be readjusted to the new bal'lot printing.
But
the
question is, has the appellant rested his bare wish on other telling
testimonial basis -
Noni~ that we can discern. Nor can the reform
in the numbering on the back of the ballot be a reason for recount.
Several issues were struck and an enormous volume
of
evidence
came on record around the core demand
for
recount
and
the
Returning Officer, a key witness in the case, P.W. 5, was also examin-
~d. . We have th~ additional circumstance of an application for an
mtenm count which was allowed partially with reference to Sherpur
censtituency (a segment of the concerned parliamentary constituenc:y).
While many issues related to some facet or other of the flaws
in
the counting, the highlight of the discussion by the trial Court was
around issue no. 6 :
------
(1) (1970) 1 S.C.R. 852.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
\ ,
BALDEV SINGH v. TEJA SINGH (Krishna Iyer, ].)
387
"Is the petitioner entitled to insptction, secrutiny and
recount of tho ballot papers and, if so, to what ex;tent ?"
The interlocutoriy order really covered the crucial
issue
aforesaid.
The court held that a case for inspection and scrutiny of votes had
been made out and observed :
"Issue no. 6 is, accordingly, found in the petitioner's
favour and the interests of justice require that the inspection
~,nd scrutiny prayed for be allowed."
Although this might appear to be widely worded, the Court has
confined that scope of this recount by a cautious direction :
" .. since the petitioner's allegation with regard to the
rejection of such votes which do not bear die prescribed
signature is confined to the Sherpur Assembly constituency
alone and the number of such votes is stated to be 450 ...
l consider it expedient at this stage to inspect and scrutinise
only the petitioner's rejected votes relatin~ to that segment
of the parliamentary constituency."
As earlier noticed, on appeal to the Supreme Court, the inspection
and scrutiny was widened to cover the 'rejected' ballots oi both
candidates.
The main ground which appealed to the High Court in making
this order for a fresh inspection, scrutiny and recount of the She:rpur
segment was the alleged illegal rejection of votes on the score that
the signature of the Presiding Officer was absent on the ballot paper.
The Court construed r. 5 6 of the rules in the light of r. 38 and took
the view that the ballot paper shall not be rejected merely on the
ground of such a formal defect as the accidental omission
of the
signature of the Presiding Officer, without the Returning Officer proceeding to consider if such defect was occasioned by the inadvertence
or lapse of the Presiding Officer or the Polling Officer. This approach
is sound in law and a recount was rightey undertaken.
However, the
number of totally rejected ballot papers of all the candidates when
subjected to a repeated scrutiny yielded disappointing results
from
the point of view of the petitioner. Out of 1096 rejected ballot
papers only 17 c!Qimed by the petitioner and 7 by the 1st respondent
were founC: fa"u!ty.
One of the rejected papers of the petitioner was
mutilated and its rejection was thus justified. The
net result was
tha~ the petitioner gained 16 votes and the 1st respondent 7.
The
le::id being only 9, proved colourless so far as the conclusion
was
concerned. Undaunted by the flimsy difference, the petitioner hopefully urged rhat the other segments of the Parliamentary constituency
shculd be similarly put through a second inspection and
recount.
The basis being jejune. the learned Judge declined the request. However, the general contentions raised by
~he petitioner
about
the
unfair counting and bi<1:;ed processing were' examined by the High
Court.
Those contentions were :
"1. The attitude of the countinl! staff was hostile to the
petition~r and his party.
-
388
SUPREME COURT REPORTS
[1975] 3 s.c.&.
2. The petitioner's votes w~re rejected for. want of ~1e
A
mark or signature prescnbed under section 83, wh1fo
similar votes of the respondent Teja Singh Swatantar
were accepted.
3. That the votes of the petitioner were wrongfully put
in the bundles of the respondent No. 1 to inflate his
count.
B
4. That a number of votes marked in favour of the petitioner were rejected simply because they were smudge:d due to folding of ballot papers.
5. That some of the votes counted for the contesting resJJOndent were invalid because of multiple markings
while others were mutilated and the markings thereon
C
did not clearly indicate for whom they had oeen cast."
The Court negatived the charges on sound grounds and we are
disposed to agree.
We feel, with the learned Judge, that had there
been any manipula.tion by the counting stafl' the matter would have
been immr.tliately taken to the notice
of the Returning Officer
and reference to it would have been made in the two applications to
D
the Returning Officer for recount or at least in the applica.tion
to
the Election Commission for inspection made on March 17, 1971.
Their silence really silences the' grievance.
Indeed, it must be stated
with satisfaction that although government officials at the subordinate
level have been, time and again, going on strikes, starting agitations
and making demands almost everywhere in the country, hardly any
serious or widespread instance of foul plaJy has been established in
E
their functioning in the election proce§s over the last span
of
a
quarter of a century. Moreover, the contention of biased behaviour
of the counting staff is nailed by the revealing accuracy disclosed ·in
the recount of the Sherpur segment and the marginal error
being
more or less noticed in the case of both candidates.
The
activist,
non-partisan prese~e of senior officers to supervise the counting and
deciding of disputes regarding the reception and rejection of vores
F
etc., was a reassuring factor. The conclusion of the learned Judge,
which meets with our assent, was expressed thus :
"In view of these facts, I am of the opinion that no case
has been made out for any further inspection or scrutiny
of ballot papers, especially when we find that the claim of
the petitioner that in Sherpur segment as many as 450 votes
G
polled by him had been rejected solely on the ground! that
they did not bear the· prescribed signature or the mark, but
200 similar votes were counted for the respondent, stands
falsiified by the scrutiny that has already been undertaken.
Scrutiny of votes of the remaining segments will be nothing
but a fishing or roving enquiry which is not permitted by
~~
H
The general charge of hostility of subordinate governme:nt staff in
counting is unproved, as already held. Even so, we must underscore
B
c
D
E
G
H
. Bf\L?EV SINGH v. TEJA SINGH (Kris~na Iyer,/.)
389
the u~t .importance of the indepen~e~ce, fai{ness·· and. activism of'
the ElectiOn personntl from the Comm1ss1on to 'the coUiitillg-staff. _ ·ff
their discretion is sensitive to the party in ppwer -Qr' their antipathies
are inflamed during election time, th.e cherished parliamentary 51JStem
will be the casualty. Every conscientious citizen has a pJJblic duty to
desist from. making reckless mud-slinging and tendentious smearing_
of the men who makes the machinery, promoted by chimerical doubts,· ·
and there is cast a countervailing obligation on all who make up the
election personnel to be knowledgeable, sensible, sympathetic, sensitive
and stem· to every candidate alike. Even seeming stiffness on chumming up ot ignorant obstinacy will discredit the instrument.
In the Returning Officer's evidence (as P :w. 5) we find an obscure
reference to a telephonic call by the Prime Minister even as the counting was going on. He deposed :
"It is correct that when the counting of postal ballot
papers was going on, D. S. P. Charan Singh of the Punjab
Potice, who was then on duty at the gate, told me that there
. was a telephonic call for me. He whispered this in my ear.
I, hoWever, asked him to say it loudly in the presence of
. everyone present from where that call was. He then said it
was froin the Prime Minister of India.
As I was busy in
counuag I didnot consider it proper to attend to the telephonic call and I refuseti to go to the telephone. I also did _.not
ask all\yone to receive the message meant for me. I did not
instruct Shri Sher Singh, who was then the Sub-Divisional
_Magistrate, Sangrur, to go and hear that telephone and I do
not know whether he ever received any telephonic message."
:If this were true, it was unfortunate to·say the least. If it were untrue,
the _officer's glib-tongued testimony should have invited censure. Any·
way, there is rlo tangible trace, anywhere in the record, even to a vague
suggestion of influencing the counting by the Prime Minister. It also
looks incredible especially since neither of the serious contestants is
3: Congress candidate. Frivolous suggestions linking persons in high
office should not be allowed to be flung in court, without sound basis
·previously laid.
The same witness has unburdened his bosom in the
witness box to swear that the Education Minister of the State (the
ruling -party was the Akali party and his quondam Personal Assistant
was the candidate in the constituencv) desired to 'see' him when the
fever of election was on. P.W. 5 said on oath in cross-examinatioJ! :
"It is CC?rrect that S. Surjit Singh, P.W. 4, who was the
then Educa1ion Minister,
Punjab, visited
Sangrur in the
course of the election campaign several times. I do not know ··
if S. Surjit Singh was camping at Sangrur on 10th, 11th or
12th of March, 1971. I, however, recollect that on the evening of 11th March, 1971, the Superintendent of Police told
me that S. Surjit was at his residence. The Superintendent
of Police did not give me any message and merely said that
S. Surjit Singh wanted to see me. I, however, could not see
390
SUPREME COURT REPORTS
[197 5] 3 s.c.a.
him as I was busy at the time and later when I went to the
residence of the Superintendent of Police, I foun4 that Si.
Surjit SiB~ had already left."
If it is true, it is unhappy, but it has the flavour of a fiction. Further
if it was true, it ~ave the appearance to outsiders of pressure by Minis-
. ters on the poll officers-a vice which must be condemned. If it were
untrue, the officer has tlamned an innocent Minister.
Another fatal blo\y to the plea for recount of other segments pressed by the petitioner-appellant needs mention. We have already stated
that the petitioner, with what would appear to be uncanny intuition,
stated in para 9 of his petition, details of wrongful reception of invalid votes etc., with numerical precision and wonder of observation
possible under the present system of counting only by resort to resourceful fictfoii or extra-sensory perception. Disingenuous awrments
do not promote prospects of judicial recount and will be dismissed as
devices to eiomply with requirements suggested in some ruling or other.
Counsel did press before us many citations, a few of which alone we
propose to refer to, the ground covered being overlapping, the law
laid down, the sam1~, and the determining role being the judic:ial response to the key facts of each case. In Jagjit Singh(1)
this Court
stated:
"Vague or general allegations that valid votes
were
improperly rejected, or invalid
votes
were
improp~rly
accepted, would not serve the purpose which s. 83(1)(a)
has in mind.
An application made
for
the inspection
of ballot boxes must give
material facts
which
would
enable
the
Tribunal
to
consider
whether
in
the·
intere!~ts of justice, the ballot boxes should be
:~
pected or not.
In dealing with
this question, the importance of the secrecy of the ballot papers cannot be
ignored, and i.t is always to be borne in mind that the Star
tutory rules framed under the Act are intended to provide
adequate safeguard for the examination of the validity or
invalidity of votes for their proper .counting. It may be
that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to if\spect the ballot
boxei; and consider his
objections
about the improper
acceptance or improper rejection of votes tendered bv
voters at any given election: but in considering the requirements of justice, care must be taken to see that el~:tion
peti~one;s do not get a chance to m~ke a roving or fishing
enqmry m the ballot boxes so as to JUStify their claim that
the returned candidate's election is void .. We do not proJJOSe to lay down any hard and fast rule in this matter:
indeed. to attempt to lay down such a rule would be im:xpedient and unreasonable."
(1) AJ.n.. 1966 S.C. 774, 783.
A
B
c
D
E
F
G
H
A
B
c
D
E
G
H
BALDEV SINGH v. TEJA SINGH (Krishna Tyer, J.)
391 ·
The law has been. the same, before and after (Ram Sewak Y adav v.
Hussain Kamil Kidwai(l); and Swami Rameshwaranand v. Madho
Ram(2). A judicial recount is not a matter of right (Sumitra Devi
v. Sheo Shankar( 3) and convincing, not conclusive, specificity is of
the essence.
In the light of what has been said above and with due regard to
the findings of the High Court, we are unable to grant a recount ~n a
comprehensive scale. It is noteworthy that P.W. 5 had heard both sides
on the demand for a recount. He has sworn significantly;
"No request was, however, made to me by the petitioner
or his counsel S. Gurdev Singh for check count or random
count.
I vehemently deny the suggestion that the order
Exhibit P.W. ·5/b.1 was not dictated in open soon after the
announcement of the verbal order rejecting the application:
for recount. While arguing the application for recount the
petitioner's counsel said that the recount may be confined
only to the votes relating to Dhuri Assembly constitve!J.C}"
and his request for recount of the remaining votes may be
ignored."
Even in the application to the Election Commission the plea for inspection of the used ballot papers is primarily confined to Dhuri
Assembly segment and the rejected ballots of other assembly segments .
. Thus it is a fair inference to draw that the grievance centred round
the Dhuri segment. In regard to that plea, the averment in para 9(a)
gives details including figures, absence of seal and other irregularities
like multiple marking and voting. Not a scintilla of evidence on
which a court could act is present on the record prima facie to prove
what has been alleged. Therefore the refusal of recount was not improper.
This case has made us reflect anxiously on the dichotomy in the
matter of recount between the oounting station and the court hall.
We think it necessary to elucidate the legal lines to be drawn at the
two stages, as this is a fit case which calls for such demarcation.
The largest democracy in the world, India, naturally has the most
numerous electorate: for a territorial ·constituency. Several thousands
to a few lakhs of ballots for a constituency are polled and have
to be inspected and counted in a rapid process; computers and like
electronic devices which achieve in a twinkle what manual eyes and
hands take Joni! hours to perform are denied to us due to underdevelopment and indig:ence.
ffut we have human resources in abundance, to sort out, bundle up, count, check, scrutinize and so on.
Our poll finale relies on human power, and judging by the millions
of votes which have passed through the assembly-line processes of mixing. bundling, scrutinising, counting and rebundling-what with mammoth numbers and continuous work-the errors are microscopic. Ttli:;
tribute to Indian ability goes to the lesser level staff-the clerks and
-----------
(!) (1964) 6 SCR 238;
(2) 40 E.L.R. 281.
(3) A.I.R. 1973 S.C. 215.
392
SUPREME COURT REPORTS
[ 197 5] 3 :;.c.R.
teachers, say-who bear the mechanical brunt of the Himalayan
labours' Wh1:n colossal heaps of votes are processed, the tellers may
make chance mistakes. Even computers are not totally error-proof
and, tu err is human, physically fatigued and brain-fagged as the:y may
be occasionally. Scrutiny by vigilant officials and test-c~ecks .may be
good but jaded spirits. cau~e s~ips .. Co1!1placen~ assumption of Jpe!1'ection when the operation rs gigantic, is a frailty of abd'urate mmds.
That is why realism has induced r.63 and issuance of instructions
to returning officers, rooted in practical wistiQlll. Given lively realism
all'd imaginative understanding in the Returning Officers, many honestly sceptical and legit~ately suspicious candidates who have lost the
election may be stilled in their doubt by a recount, and the
wi~er,
after all, has no vested interest in error and cannot reasonably ob1ect.
Such is the interpretative perspective, r.63 which has wrongly been
lost sight o~ by P.W. 5, the Returning Officer, in the present case.
/
We' frown upon b:ivolous and unreasonable refusals of recount
by Returning Officers who forget the mandate of r.63 that allowance .
of recount is not the exuption and refusal is restricted to cases where
A
B
c
the demand itself is 'frivolQW;' or 'unreasonable'. These are
strong
words. The circumstances off each case decide. Where the margin of
D
difference is minimal, the claiiu. fot. a ·fresh count cannot be summarily brushed aiside as futile or trumpery'. If, as in· $is case,, for the Sherpur segment, a uniform view, founded in legal error, has led to· wrong
rejection of votes, rectiftcation by a recount on · tl)e spot, when
a
demand is made, would have been reasonable. If formal defe,~ts had
been misconstrued at some table as substantial infirmities, or vice
versa, resulting in wrongful reception or rejection, thetsooner it was set
E
right the bt:tter, especially when a plea for a second inspection had
been made on the spot. Many practical circumstances or legal misc.onceptions might honestly affect the legal or arithmetical accuracy
of the result and prestige or fatigue should not inhibit a fresh, may
be partial, d1t'.ck. ~ course, baseless or conoocted claims for recount
or fabricated grounds for inspection or specious complaints of mis-·
takes ini counting when the . gap is
huge
are
obvious
caises of
F
frivolous and unreasonable demands for recount. Malafide aspersions
on counting staff or false and untenable objections regarding· validity
uf votes also fall under the same category. We mean to be illustrative,
' .. not exhaustive, but underline the need, in appropriate cases, to be
reasonably liberal in re-check and re-count by Returning, Officers.
·After all, fairness at the polls must not only be manifest but misgivings
G
a~t the process must be erased at the earliest. Indeed the Instruc··
tions to Officers are fairly clear and lay down sound guid~lines.
Judicial power to direct insrection and recount is undoubted but
will be exercised sparingly.
In a recent decision Chanda Singh v.
Choudhary Shiv Ram Verma(!) this Court observ.cd :
.
.
"A artain amount of stability in the electoral process
H
is essential. If the oounting of the ballots is interfered with
by too freque_nt and ftjppant recountJ by courts a new threat
(I) Civil Appeal No. 1185 of 1973, do:idccl on 20-12-1974;
'·
A
B
c
D
E
F
G
H
BALDEV SINGH v. TEJA SlNGH (Krishna Iyer,/.)
393.
to the certainty of the poll system is introduced through the
judicial instrument. More-over, the secrecy
ofl the ballot
which is sacrosanct becomes exposed to deleterious prying
if recount of votes is made easy. The general reaction,
if there is judicial relaxation on this issue, may well be a
fresh pressure on luckless candidates, particularly when the
winning margin is only a few hundred votes as here, to ask
for a recount Micawberishly looking for numerical good
fortune or windfall of chance discovery of illegal rejection
or reception of ballots. This may tend to a dangerous disorientation which invades the democratic or~er by injecting widespread scope for reopening of decla~ returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illelgality . or other compulsions of justice necessitating such a dr~~tic step."
This implies no . break from the liberaJ stance. WQ have indicated
io.r Returning Officers. Election petitions come to Coutt after a month
··and a halfl and ripen for trial months later and then ~he appeal, sta-
. tutorily vested, inevitably follows. In this Operation I!.itigatjon, which
is necessarily protracted, liberal recount or lax re-inspection of votes·
may create belated uncertainties, false hopes and a hovering sense
·of suspense, long after elections are over, $<Wemments formed and
legi~latures begin to function.