# BHABHI v. SHEO GOVJND & ORS

- **Citation:** [1975] Supp. 1 S.C.R. 202
- **Court:** Supreme Court of India
- **Decided:** 1975-04-21
- **Case number:** Civil Appeal No. 63 of 1975
- **Bench:** N. L. Untwalja Ands. Murtaza Fa7Al Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhabhi-v-sheo-govjnd-ors-6509
- **Pages:** 12

## Headnote

R epr('sentatio11 of People A ct-Election-!nspecfion
of
ln1llot
papersPrincip!es.
The appellant \Vas elected to the U.P. Legislative Assembly. The appellant defeated respondent No. 1 by a margin of 94 \'Otes.
The respondent
No. l in his election petition made an application for. inspection of the ballot
papers on the ground that there were improper reception and rejection of
votes. That the election staff was suffering from seriou<J physica1 strain as
they had to work without any rest.
There \Vere arithmetical mistakes in the
counting. That the staff was drowsy and \Vas dozing.
The respondent no. 1 made an application praying for a sample inspection of the ballot papers. He examined some \Vitncsses and counting agents,
and fifed some affidavits.
The appellant also produced some evidence.
The
respondent did not give serial number of a single ballot paper which is <;aid
to have been impfoperly accepted or rejected.
Nor did be file an applica1io11
for recounting of votes.
The High Court without going into the merits of the application ordered
a samp-Je 'inspection of the balIDt paper.
The lfigh Court did not give any
finding whether the evidence Dr the 01ateriat adduced by the respondent no. 1
was sufficient for the prin1a facic satisfaction of the High Court.
HELD : An order for inspection could not be granted a.;; a matter of
routine, but only under special circumstances.
Inspection of bat1ot paper
should not be allowed in such a way so as to make a roving or fishin~ inquiry
in order to disco,·er material for declaring-.the election void.
f205F-G, 206Dl
The following conditionss are imperative before. a Court can grant inspection
or sample inspection of the ballot pepers :-
(I) That it is important to maint1in the secrecy
\vhich is sacrosanct and should not be allowed to be
frivolous, vague and indefinite allegations;
of the ballot
violated
on
{2) That before inspection is a1Jovved, the alJegations made against
the elected candidate must be clear and specific and n1ust be supported by adequate statements of matCTial facts;
(3) The Court must be prbna facie sati<;fied on the materials pro~
duced before the Court regarding the truth of the allegations made for
a recount;
(4) 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 \Vith a view to fish materials for declaring the election
to be void; ancl
i__
(5) That on the special facts of a given case sample inspection
may be ordered to lend further assurance to the prinio facie satisfaction of the Court regarding the truth of the allegations made for n
r@count, and not for the purpose of.fishing out material~
[230E-H, 231A-B]
•
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.Further held that what appeared to have weighed \vith the High Court
\Vas the solitarv circumstance that the appc1lant had succeeded by a narro\V
m::i.rgin 0:nd thit was a sufficient ground for ordering sample inspection.
The
Court. however was unable to ugrec \\ith this broad staten1ent of the la\v
by the High C~urt because if a person is duly elected even by a narrow
f""
. .
BHABHI v. Sl!EO GOV!ND (Fazil Ali, J.)
203
margin of votes lhere is no presumption that there has been illegality or
A
irregularity in the election.
This is a fact which has t<>: be proved by .a
person who challenges the election of the duly elected candidate.
After all in
a large democracy such as our's wheue we have a multip~1ty. system,
\Vh~1:e
the numbe1· of voters is huge and diverse, where the voting JS free and
~air
and where in quite a few cas.es the conte~t is. close and nee~ to neck, a marginal
victory by a ~uccessful can<l1d_ate over .hlS nval .can ~omettmes ~ tr~ted as ~
tren1endous tnumph so as to give a feehng of satJsfactlOn to the v1ctonous candidate.
The Court cannot lightly ·brush aside the succc~s of .the duly .elected
B
candidate on an election petition b<ised on vague and 1ndefin1te allegations or
frivolous and flimsy grounds.
[212B-C DE]
Held further in the instant ca

## Text

202
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BHABHI
v.
SHEO GOVJND & ORS.
April 21, 1975
[N. L. UNTWALJA ANDS. MURTAZA FA7AL ALI, JJ.J
R epr('sentatio11 of People A ct-Election-!nspecfion
of
ln1llot
papersPrincip!es.
The appellant \Vas elected to the U.P. Legislative Assembly. The appellant defeated respondent No. 1 by a margin of 94 \'Otes.
The respondent
No. l in his election petition made an application for. inspection of the ballot
papers on the ground that there were improper reception and rejection of
votes. That the election staff was suffering from seriou<J physica1 strain as
they had to work without any rest.
There \Vere arithmetical mistakes in the
counting. That the staff was drowsy and \Vas dozing.
The respondent no. 1 made an application praying for a sample inspection of the ballot papers. He examined some \Vitncsses and counting agents,
and fifed some affidavits.
The appellant also produced some evidence.
The
respondent did not give serial number of a single ballot paper which is <;aid
to have been impfoperly accepted or rejected.
Nor did be file an applica1io11
for recounting of votes.
The High Court without going into the merits of the application ordered
a samp-Je 'inspection of the balIDt paper.
The lfigh Court did not give any
finding whether the evidence Dr the 01ateriat adduced by the respondent no. 1
was sufficient for the prin1a facic satisfaction of the High Court.
HELD : An order for inspection could not be granted a.;; a matter of
routine, but only under special circumstances.
Inspection of bat1ot paper
should not be allowed in such a way so as to make a roving or fishin~ inquiry
in order to disco,·er material for declaring-.the election void.
f205F-G, 206Dl
The following conditionss are imperative before. a Court can grant inspection
or sample inspection of the ballot pepers :-
(I) That it is important to maint1in the secrecy
\vhich is sacrosanct and should not be allowed to be
frivolous, vague and indefinite allegations;
of the ballot
violated
on
{2) That before inspection is a1Jovved, the alJegations made against
the elected candidate must be clear and specific and n1ust be supported by adequate statements of matCTial facts;
(3) The Court must be prbna facie sati<;fied on the materials pro~
duced before the Court regarding the truth of the allegations made for
a recount;
(4) 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 \Vith a view to fish materials for declaring the election
to be void; ancl
i__
(5) That on the special facts of a given case sample inspection
may be ordered to lend further assurance to the prinio facie satisfaction of the Court regarding the truth of the allegations made for n
r@count, and not for the purpose of.fishing out material~
[230E-H, 231A-B]
•
, -
'
.Further held that what appeared to have weighed \vith the High Court
\Vas the solitarv circumstance that the appc1lant had succeeded by a narro\V
m::i.rgin 0:nd thit was a sufficient ground for ordering sample inspection.
The
Court. however was unable to ugrec \\ith this broad staten1ent of the la\v
by the High C~urt because if a person is duly elected even by a narrow
f""
. .
BHABHI v. Sl!EO GOV!ND (Fazil Ali, J.)
203
margin of votes lhere is no presumption that there has been illegality or
A
irregularity in the election.
This is a fact which has t<>: be proved by .a
person who challenges the election of the duly elected candidate.
After all in
a large democracy such as our's wheue we have a multip~1ty. system,
\Vh~1:e
the numbe1· of voters is huge and diverse, where the voting JS free and
~air
and where in quite a few cas.es the conte~t is. close and nee~ to neck, a marginal
victory by a ~uccessful can<l1d_ate over .hlS nval .can ~omettmes ~ tr~ted as ~
tren1endous tnumph so as to give a feehng of satJsfactlOn to the v1ctonous candidate.
The Court cannot lightly ·brush aside the succc~s of .the duly .elected
B
candidate on an election petition b<ised on vague and 1ndefin1te allegations or
frivolous and flimsy grounds.
[212B-C DE]
Held further in the instant case, the High Court while passing the order
of sample inspe~tion made no attempt to apply the above principles.
The
High Court actually noticed some of the important decisions and yet did not
apply them.
The High Court did not record any satisfaction.
Allowing the
appeal, the matter was remanded to the Hi&h Cour.t for disposing of . the
application _for inspection of the ballot papers rn the light of the observattons
made in the judgment.
[205 D-F, 211 C-DJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 63 of 1975.
Appeal by special leave from the Judgment and order dated the
20th September, 1974 of the Allahabad High Coun in Election
Petition No. 1 of 1974.
J. P. Goyal,
Pranab Chatterjee and G. S. Chatterjee, for
the
appellant.
R. K. Garg, S. C. Agarwa/a and V. J. Francis,
No.!.
The Judgment of the Court was delivered by
for respondent
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FAZAL ALI, J.---..:By virtue of an order dated December 20, 1974
Banerji, J., of the Allahabad High Court who was designated as the
Election Judge passed an order granting the application of the respondent No. l for a sample inspection of the ballot papers. The
order directed that a sample inspection of 20 bundles of 50 ballot
F
papers each of the votes counted in favour of the appellant may be
taken out and examined along with the 5 bundles of the
rejected
ballot papers. It is against this order that the appellant has filed the
present appeal by special leave and has assailed the order of the
karned_ Sin.gle Judg~ on the ground that the !earned Judge has excr-
~ISed his d1scret1on illegally and improperly ill allowing the sample
!Ilspection. of the ballot papers without there being sufficient. proof of
!]
the allegal!ons made by the respondent in his petition for setting aside
the election of the appellant.
.
The facts giving rise to the present appeal may be briefiv summarised as follows :
·
"
The appellant was el_ected to the U. P. Legislative Assembly from
218, Mubarakpur Const1tu.ency in the
District of Azamgarh, U. P.
The last date of nommation for election to the said assemblv was
January 24, 1974. The date of scrutiny was January 25 1974 and
that of withdrawal January 28, 1974.
The poll was h~ld on February 26, 1964 and the counting of votes done on February 27 1974
The'result of the election was declared on February 28,' 1974. Th~
H
204
SUPREME COURT REPORTS
[1975] SUPP. S.C.R.
A respondent filed an election petition before the Election Judge of the
Allahabad High Court some time in March 1974. The appellant secured 19,728 votes while respondent No. 1 had secured 19,634 votes and
thus the appellant defeated respondent No. 1 by a margin of 94 votes
and was duly elected to the U .P. Legislative Assembly. In the petition
filed by the respondent before the Allahabad High Court the resB pondent in paragraph-8 of the said petition made a large number of
allegations regarding the improper reception and rejection of votes
and regarding wrong arithmetical counting of votes and acceptance of
votes which were void. The material facts with respect to the allegac
D
tions were set out in paragraph-9 of the petition which broadly are
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as follows :
( 1) That the election staff engaged in the work of counting was suffering from serious physical strain as
they had to work without any rest on that day as a
result of which there were a number of arithmetical
mistakes in the counting of votes.
(2) That the staff had become drowsy and was actually
dozing and could not efficiently discharge its function
of counting the votes properly.
As regards
the facts
relating to
improper
rejection of valid
ballot papers it is said that a large number of ballot papers in which
valid votes had been marked for the petitioner (respondent No. 1) were
declared invalid despite oral protests made by the counting agents of
E the respondent. Similarly a large number of ballot papers had distinct
marks of stamp in the column of the petitioner near the symbol of
cow and calf and yet they were improperly rejected by the counting
staff on the ground that there were no distinct marks. The respondent
further alleged that there were 70 sllCh ballot papers which
were
wrongly rejected. It was also pleaded that a number of ballot papers
F
which had a valid vote for the petitioner were illegally rejected on
the ground that there were some accidental mark made in the column
of some other candidate which was not a mark of the stamp or
a voting mark and the number of such ballot papers rejected was 50.
Finally .it was said that a number of ballot papers which
carried
. valid votes for the petitioner were illegally rejected on the ground that
there was no seal mark or there was no signature of the Returning
G Officer on those ballot papers although it was far from the truth.
Such were said to be the obvious mistakes in the rejection of the
ballot papers and the counting of votes which formed the sheet-anchor
of the case of the respondent in challenging the election of the appellant.
The appellant in his written statement denied all the allegations mack in the petition.
H
While the election petition was being heard by the High Court
an application was filed by the respondent No. l praying that a sampk
inspection of the ballot papers may be allowed.
In suppcrt of this
application some witnesses, counting agents of the respondent and
other persons were examined and some affidavits were filed.
The
appellant also produced some evidence. . The learned Judge has
mentioned in his order that this sort of evidence was led before lnm
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BHABHI v. ,SHEO GOVJND (Fazal Ali, !.)
but he has not at all given any finding on the credibility of the evidence.
The learned Judge further noticed very prominently that in
respect of the allegations made that the counting of v.Jtes was wrong
and the rejection of the ballot papers was improper, > ~ the respondent filed no application for recounting of votes as provided by r. 63
of the Conduct of Election Rules, 1961.
The learred Judge also
noticed that the respondent had not given serial numter of a single
ballot paper which is said to have been improperly ac :epted or improperly rejected.
The Judge, however, allowed the
application
because he thought that the ends of justice required it. In this connection the learned Judge observed as follows:
"But before I advert to consider the election oet1t10n,
the aftidavit and the oral evidence to decide whether there
should be an order for the general inspection of the used
ballot papers, I think it will be in the interests of justice to
order a sample inspection of ballot papers counted in favour
of respcndent No. 1 as also a sample inspection of the rejected ballot papers in this case." .
These observations clearly show that the learned Judge made no
attempt at all to give any finding whether he was prima facie satisfied regarding the credibility of the evidence or the materials adduced
before him but ordered a sample inspection in order to test the validity
of the allegations made by the respondent. It seems to us that in
passing this order the learned Judge, while noticing some of the leading
cases of this Court on the point which be has cited in his judgment,
viz., Ram Sewak Yadav v. Hussain Kami/ Kidwai & Ors.(1 ) Dr. Jagjit
Singh v. Ciani Kartar Singh and others;( 2 ) Jitendra Bahadur Singh v.
Krishan Behari & Ors;(') and Sumitra Devi v.
Shri Sheo Sha11kar
Prasad Yadav & Ors.(4) bas made no attempt to apply the principles
laid down in those cases to the facts of the present case.
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Before, however, dealing with the order passed by the ]earned
F
Judge it may be necessary to refer to a number of authorities of this
Court on the circumstances under which an inspection of the ballot
papers, or for that matter a sample inspection, can be allowed.
l11
the case of Ram Sewak Yadav ( supr11) the matter was
considered
at great length and this Court pcinted oqt that an order for inspection
could not be granted as a matter of routine but only under special
circumstances and observed as follows :
G
"An order for inspection may not be granted
as
a
matter of course : having regard to the insistence upon the
secrecy of the ballot papers, the Court would be
justified
in granting an· order for inspection provided two conditions
arc fulfilled :
(i) that the petition for setting aside an election contains
H
an adequate statement of the material facts on which
the petitioner relies in support of his case: and
(l) [19641 6 S.C.R, 238.
(2) A.I.R. !966 S.C. 773.
(3) [ 1970) l S.C.R. 852.
(4) [1973] 2 S.C.R. 920.
206
SUPREME COURT REPORTS
[1975] SUPP. s.c.R.
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(ii) the Tribunal is 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.
But an order for inspection of ballot papers cannot be granted to support vague pleas made in the
petition not supported by material facts or to fish out evidence to support
such pleas.
The case of the petitioner must be set out
with ·precision supported by averments of material facts. To
establish a case so pleaded an order for inspection may
undoubtedly, if the interests of justice require, be granted.
But a mere allegation that the petitioner suspects or believes
that there has been an improper reception, refusal or reiection of votes will not be sufficient to support an order for
inspection.''
Two years later in Dr. Jagjit Singh's case (supra) this
Court
observed on the facts of that q15e that the discretion to allow inspection of ballot papers should not be used in such a way so as to make
D a roving or fishing inquiry in order to discover materials for declaring
the election void. In this connection, this Court made the following
observations :
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"The true legal position in this matter is no longer m
doubt.
Section 92 of the Act which defines the powers of
the Tribunal, in terms, confers on it, by
Cl.
(a),
the
powers which are vested in a Conrt under the Code of
Civil Procedure when trying a suit, inter alia. in respect of
discovery and inspection.
Therefore, in a proper case, the
Tribunal can order the inspection of the ballot boxes ....... .
. . . . . . . . . . . . . . . . . . . . . An application made for the inspection o!
ballot boxes must give material facts which would enable
the Tribunal to consider whether in the interests of justice,
the ballot boxes shonld be inspected or not.
In dealing with
this question, the importance of the secrecy of the
ballot
papers cannot be ignored, and it is always to be borne in
mind that the statutory rules framed under the Act are
intended to provide adequate safeguard for the examination
of the validity or invalidity of votes and 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 inspect the ballot boxes and consider his objections about
the improper acceptance or improper rejection of
votes
tendered by voters at any given election; but in considering
the requirements of justice, care musl be taken to see that
election petitioners do not get a chance to make a roving
or fishing enquiry in the ballot boxes so as to justify their
claim that the returned candidate's election is void."
In Jitendra Bahadur Singh's case
(supra) the
order of
the
Election Judge granting inspection of the ballot papers was reversed
by this Court because the Court thought that the learned Judge had
not followed the essential conditions laid down before granting the
'
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....
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BHABHI v. Sl!EO GOVIND (Fazil Ali, J.)
207
prayer for inspection of the ballot papers. In that case the Court
A
held that the allegations were vague and indefinite, no material fact
was pleaded and further that the petitioner was . present at the time
-0f counting and yet he did not tal<e any objection regarding the ilkgal
rejection of the votes.
Jn this connection Hegde, J., speaking for
.the Court laid down the following principles :
( 1) that the petition for setting aside the election must
contain an adequate statement of the material facts
on which the petitioner 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 cases of Ram Sewak Yadav and
.(,supra) were referred to and
relied
judgment.
Dr. Jagjit
Singh
mentioned
upon by
Hegde, J., in bis
Another case which appears to be in point and which was the
;;beet-anchor of the argument of the learned counsel for the respondent
is the case of Sashi Bhusan v. Prof. Ba/raj Madhok & Others.( 1 ) It
is true that a sample inspection was allowed in that case.
But, in
our opinion, it was so done because of the special facts of that case.
The allegation of the respondents in that case was that many ballot
· papers were chemically treated so that the
mechanically
stamped
n:;a,rks in favour of the successful candidates by
using invisible ink
emerged and the mark actually put at the time of polling disappeared
after a few days.
This was undoubtedly an allegation of a very
·serious nature, which, if true, would have shaken the entire confi-
·dence of the people in the electoral process and would have seriously
impaired our democratic system.
In these circumstances this Court
beld that it was not only necessary but in. public· interest that the
allegation should be thoroughly examined so as to maintain confi-
<lence of the people.
Jn this connection, Hegdc, J., while delivering
the judgment of the Court, observed as follows :
"It is true that merely becanse someone makes bold
and comes out with a desperate allegation that by
itself
should not be a ground to attach value to the alleirntion
made.
But at the same time serious allegations cannot be
dismissed summarily merely because they do not look probable.
Prudence requires a cautious approach in these
matters. In all these matters, the court's aim should he to
render complete justice between the parties.
Further, if the
allegations made raise issues of public importance areater
care and circumspection is necessary.
' "
These eases have peculiar features of their own.
No
sneh case had come up for decision earlier.
Hence decided
0) [1972]2 $.C.R. 177.
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SUPREME COURT REPORTS
(1975] SUPP, S.C.R.
cases can give little assistance to us.
In a matter
like
allowing inspection of ballot papers, no rigid rules
have
been laid down, nor can be laid down.
Much depends on
the facts of each case.
The primary aim of the courts is
to render complete justice between the parties.
Subject to
that overriding consideration, courts have laid down the
circumstances that should weigh in granting or refusing inspection.
.. .. .. .. . . .. .. .. .. .. .. .. The ratio of that decision is that
the inspection of ballot papers should be allowed only when
the court thinks that it is necessary in the interests of justice
to do so. In that case this Court did not lay down any
hard and fast rule as to when an inspection of the ballot
papers can be allowed."
In the instant case, however, the allegations are of a different
kind.
They relate only to the mistakes in counting and improper
rejection of votes.
They are not of a sweeping pattern as in the
case aforesaid.
In these circumstances, therefore, the ratio laid down
in
Sashi
Bhushan's case (supra) cannot be pressed into service for the purpose
of supporting the order of the learned Judge.
In the case of Sumitra Devi (supra), Mathew, J., after reviewing the previous authorities of this Court, held as follows :
"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 of right but only
on the basis of evidence of good 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."
In S. Raldev Singh v. Teja Singh Swatantar (dead) & Ors .. ( 1)
Krishna Tyer, J., remarked as follows :
"Coming to the facts of this case. we
have
already
indicated that no good grounds for a Court order for inspection and recount, particularly after the Sherpur experiment, exist.
Although we are free to admit that an imagmative Returning Officer might have quietened the qualms and
silenced the scepticism of the appellant by a test check or
partial recount, proceeding to a fulI recount if serious errors
were found, we are inclined to agree with the High Court.
there being no reason to reverse its elaborately discussed
conclusions, and the relief of recount was rightly rejected."
-------- ·----------------------
(1)
Ci~il Appeal No. 233 of 1973 deoided on 24-1-1975.
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BHABHI v. SHEO GOVJND (Fazal Ali, !.)
209·
Jn Be/iram Bhalaik v. Jai Behari Lal Kachi and Anr. (1) Sarkaria
A
; ., speaking for the Court, observed as follows :
"Since an order for a recount touches upon the secrecy
of the ballot, it should not be made lightly or as a matter
c\f course. Although no cast iron rule of universa.l
application can be or has been laid down, yet, from a bcadroll
of the decisions of this Court, two broad guidelines
arc
discernible : that the Court would be justified in ordering a
re{;ount or permitting inspection of the ballot papers only
where (i) all the material facts on which the allegations of
Irregularity or illegality in counting are founded, are pleaded
adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the
making of such an order is imperatively necessary to decide
the dispute and to do complete and effectual justice between
the parties."
In Suresh Prasad Yadav v. Jai Prakash Mishra & Ors.(')
while
summarising the principles laid down by this Court from time to time in
granting prayer for inspection of ballot papers, the Court adumbcrated the circumstances in which a prayer for inspection of ballot papers
could be considered and observed as follows :
"Before dealing with these contenticms, we may recall,
what this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made
as a matter of course.
The reason is twofold.
Firstlv such
an order affects the secrecy of the ballot which und"er the
law is not to be lightly disturbed.
Secondly. the Rules provide an elaborate procedure for counting of ballot papers.
This procedure contains so many statutory
checks
and
effective safeguards against trickery, n1istakcs and fraud in
counting, that rt can be called almost fool-proof.
Although
no hard and fast rule can be laid down, yet the broad guideli.nes, as discernible from the decisions of this Court, may
be indicated thus :
·
The Court would be justified in ordering a recount ot
the ballot papers, only where :
" (I) the election-petition contains an adequate statement
of all the material facts on which the allegations of
irregularity or illegality in counting are founded;
(2) On the basis of evidence adduced such allegations
are prima fade established, affording a good ground I
for believing that there has been a mistake in count- ·
ing; and
( 3) The Court trying the petition is prim a fade satisfied
that the making of such an order is
imperatively
(I) A.l.R. 1975 S.C. 283.
(2) A.l.R. 1975 S.C .. 376 .
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necessary to decide the dispute and to do c-0rnplctc
and effectual justice between the parties."
These principles were reiterated in Chanda Singh v. Ch. Shiv Ram
Varma and orhers,(1) where speaking for this Court, Krishna
Iyer,
J., observed thus :
"On all hands, it is now agreed that the importance of
the secrecy of the ballot must not be Jost sight of, material
facts to back the prayer for inspection must be bona fide,
clear and cogent and must be supported by good evidence.
We would only like to stress that in the whole procoss. the
secrecy is sacrosanct and inviolable except where
strong
prima facie circumsanccs to suspect the purity,
propriety
and legality in the counting is made out by definite factual
averments, credible probative material and good faith
in
the very prayer.
We may even say that no winning camltdate should be afraid of recount and, conditions a; :hey
are, a sceptical attitude expecting the unexpected ma v be
correct, informed of course by the broad legal guiddines
already set out."
Lastly in Ch. Manphul Singh v. Ch. Surinder Singh(") the Court
upheld the order of the High Court allowing inspection of 'ballot
papers because the High Court had given a finding that the evidence
of the witnesses was sufficient to prove the allegation of impersonation, in that case.
The Court further held that the High Court did
not act arbitrarily in granting the prayer for inspection.
Thus on a close and careful consideration of the varivus authorities of this Court from time to time it is manifest that the following
conditions are imperative before a Court can grant inspection, or for
that matter sample inspection, of the ballot papers :
(1) That it is important to maintain the secrecy of the
ballot which is sacrosanct and should not be allowed
to be violated on frivolous, vague and indefinite allegations;
(2)
(3)
(4)
(5)
That before inspection is allowed, the
allegations
made against the elected candidate must be elem
and specific and must be supported
by
adeouate
statements of material facts;
The Court must be prima facie satisfied
on
the
materials produced before the Court regarding the
truth of the allegations made for a recount;
That the Court must come to the conclusion that in
order to grant prayer for inspection it is necessary
and imperative to do
full
justice
between
the
parties;
That the discretion conferred on the Court shotJ!d
not be exercised in such a way so as to enable the
(1) AIR 1975 SC 403.
(2) AIR 1975 SC 5J1.
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BHABH! V. SHED GOVIND (Fazal Ali, J.)
211
applicant to indulge in a roving inquiry with a view
to fish materials for declaring the election
to
be
A
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 regardmg
the truth of the allegations made for a recount, and
not for the purpose of fishing out materials.
B
H all these circumstances eriter into the mind of the Judge and he is
•
satisfied that these conditions are fulfilled in a given case, the exercise
...
of the discretion would undoubtedly be proper .
In the instant case we find that the learned Judge while passing c
.• •
the order of sample inspection made no attempt to apply the principies mentioned above to the facts of the present case. What is more
y
important is that the Court actually noticed some of the important
decisions of this Court which we have discussed and yet it did not
try to test the principles laid down on the touchstone of the allegaD
tions and the material' facts pleaded by the respondent. Another
error into which the learned Judge had fallen was that he did not
realise that by allowing sample inspection he had provided an opportunity to the respondent to indulge in a roving inquiry· in order to
fish out materials to justify his pica in order to declare the election
to be \'oid-a course which has been expressly prohibited by this
Court, because it sets at naught the electoral process and causes a
E
sense of instability and uncertainty amongst the duly elected candidates.
Thirdly, while the learned Judge has observed that. the Court
must be prima facie satisfied regarding the truth of the materials,
but it did not choose to record its satisfaction on the application of
the respondent at all and has readily accepted the suggestion of the
respondent for sample inspection on the ground that it was necessary
F
for the ends of justice.
Such an approach, in our opinion, is legally
~
erroneous. While indicating in his order that both the parties had
-
produced some affidavits before him in support of their pleas, the
•
learned Judge has not at all tried to appreciate or consider the cvidencc in order to find out whether it was worthy of credence.
Jn
the absence of any such finding it was not open to the learned Judge
to have passed an order for sample inspection just for the asking of
G
'
the. respondent.
•
Finally there were intrinsic circumstances in this case which went
to show that unless the respondent was able to place cogent materials
this was not a case for allowing sample inspection at all.
Iu
the
first place although the counting agents of the respondent were present ,at the time when the votes were counted no application for a
recount was made under r. 63 of the Conduct of Election Rules,
H
19? 1.
The nature of the allegations made by the respondent in his
peht10n as alluded to above was such as could have
been
easily
venfied at the spot by the Returning Officer, if his attention
was
drawn to those facts by an application made under r. 63 of the Conduct of Election Rules, 1961.
Secondly the learne~ Judge overlooked tl1at the respondent had not given the material particulars of
212
SUPREME COURT REPORTS (1975] SUPP. S.C.R.
A
the facts on the basis of which he wanted an order for sample inspection of ballot papers.
No serial number of the ballot paper was
mentioned in the petition nor were any particulars of the bundles
containing the ballot papers which were alleged to have been wrongly
rejected given by the respondent.
Even the segment in which the
irregularity had occurred was not mentioned
in the petition.
We,
B
however, refrain from making any further observation as to what
would be the effect of non-disclosure of these particulars because we
intend to remit the case to the learned Judge for rehearing the matter
and deciding the application for inspection.
What appears to have
weighed with the Judge is the solitary circumstance that the appellant had succeeded by a narrow margin and that was a su!Ucient
'ground for ordering sample inspection.
We arc, however, unable
C
to agree with this broad statement of the Jaw by the learned Judge
because if a person is duly elected even by a narrow margin of votes
there is no presumption that there has been illegality or irregularity
in the election.
This is a fact which has to be proved by a person
who challenges the election of the duly elected candidate.
After all
in a large democracy such as our's where we have a multi-party
. -
D
system, where the number of voters is huge and diverse, where the
voting is free and fair and where in quite a few cases the contest is
close and neck to neck, a marginal victory by a successful candidate
over his rival can sometimes be treated as a tremendous triumph so
as to give a feeling of satisfaction to the victorious candidate.
The
Court cannot lightly brush aside the success of the duly elected candidate on an election petition based on vague and indefinite allegations
.E
or frivolous and flimsy grounds.
The learned counsel for the respondent submitted, however, that
in view of the amended provisions of
the Representation of
the
People Act and the rules made thereunder the question of maintenance of secrecy has now become obsolete, because under the perF
sent system which was in vogue at the time when the election of the
appellant was held it is difficult to find out as to which voter voted
<
for the candidate. It is, however, conceded by the learned counsel
'
for the respondent that if the counter-foils which are sealed
and
-
kept separately are made to tally with the ballot papers, then it can
1
be ascertained with some amount of precision as to which
voter
voted for whom.
There are other methods also, which, when adopG
ted would put the secrecy of the voting in jeopardy. In these circumstances, therefore, the question of maintenance of secrecy docs
not become obsolete as argued by Mr. Garg appearing for the resH
pondent.
We have adverted to a Jong course of decisions of this
•
Court where it has been insisted on the maintenance of the secrecy
of the ballot and the new methodology adopted by the Act has not
made any material change in this concept.
Lastly it was submitted by the counsel for the respondent that the
learned Judge had to satisfy himself whether or not a case had been
made out for allowing sample inspection and if he had exercised his
discretion one way or the other, this Court should not lightly interfere with that discretion. This argument, however, is wholly untenable for the reasons we have given in holding that the order of the
•
BHABHI v. SHEO GOVIND (Fazal Ali, J.)
learned Judge is not in accordance with the law.
The learned Judge
has not at all applied the principles laid down by this Court in the
.cases referred to above. It is manifest that the Court has the un-
.doubted power to grant prayer for inspection, but this discretion has
to be exercised according to the sound and sacrosanct principles laid·
.down by this Court. In the instant case, the discretion has been
exercised by the learned Judge in an arbitrary manner without the
application of the mind to. the material facts and circumstances as
.discussed above.
For the reasons given above, we allow this appeal, set aside the
.order nf the learned Single Judge of the Allahabad High Court dated
December 20, 1974 and remand this case to the learned Election
Judge for disposing of the application of the respondent for inspection of the ballot papers in. accordance with the law and in the light
·Of the observations made above.
The appellant will be entitled to
hls costs in this Court.
.P.H.P .
Appeal allowed .
213
A
B
c