# JASWANT SINGH v. VIRENDER SINGH AND ORS

- **Citation:** [1994] Supp. 5 S.C.R. 336
- **Court:** Supreme Court of India
- **Decided:** 1994-11-09
- **Case number:** Election Petition No. 16 of 1991
- **Bench:** Dr. A.S. Anand, Faizan-Uddin
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jaswant-singh-v-virender-singh-and-ors-12697
- **Pages:** 32

## Headnote

Constitution of India-Article 136-Represeniation of the People Act,
1951-Section 116A-Appeal-Election Petition-Allegations regarding
commission of irregularities and ill(!galities during counting-Order of
recount-Challenged-SLP dismissed-Returned candidate bound by order
of Supreme Court-He cannot be permitted to reagitate issue of recounting
again.
ELECTION-Representation of the People Act, 1951-Section 100Election Petition-Alleged tampering with . election material after
declaration of result-Not a ground for avoiding an election-Post
declaration irregularities or illegalities-No ground to avoid an election.
ELZCTION-Representation of the People Act, 1951-Section 116 ARepoll-Whether it is within province of Supreme Court to order a repo/1Question left open-Besides, allegations contained in petition did not make
out any case for ordering a partial repoll.
Contempt of Courts Act,
197 I-Section 2-Contempt-Election
Petition-Order for recount-Application seeking stay of further arguments
to enable appellant to move Supreme Court-Transfer Petition-Aspersions
cast on the trial judge of the High Court in discharge of his judicial
function-Aspersions derogatory, scandalous and uncalled for-Appellant,
an advocate-USP. of objectionable and intemperate language-Contempt
of Court-Unqualified regre: expressed pleading 'lack ofunderstanding'-
Accepted-Appellant was found to be genuinely repentent-However, a
strong admonition and warning issued
The appellant and respondents were the candidates for the
elections to the Haryana Legislative Assembly. Respondent No. 1 was
declared elected. The appellant filed an election petition u/s 81/83 of
Representation of the People Act, challenging the election of
respondent No. l. The challenge was based mainly on the ground of
commission of irregularities and illigalities during the counting. The
appellant complained that the method adopted by the Returning
336
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JASWANT SINGH v. VIRENDER SINGH
337
Officer was contrary to the guidelines contained in th~ Handbook for A
Returning Officers issued by the Election Commission of India. It was
alleged that there had been erasures, cuttings, over-writings and
tampering with the figures of various votes pol!ed by different
candidates and also in respect of the rejected ballot papers. According
to the appellant, the result prepared by the Returning Officer was
inaccurate and the irregularities committed during the counting of B
votes and preparing of Forms XVI and XX had materially affected the
result of the election in so far as the returned candidate was concerned.
The appellant prayed for the election of respondent No. 1 to be
declared void and set aside. He prayed for a recount and for a
declaration that he be declared as duly elected.
The respondent No. 1 raised some preliminary objections to the
maintainability of the election petition. It was stated that some of the
allegations contained in the election petition were scandulous while
others were vague and the same did not disclose any cause of action.
The Trial Court held that the over-writings, cuttings and erasures D
had made Forms XVI and XX suspicious and the correctness of the
record doubtful An order was made directing recount of votes. The
returned candidate challenged this order of recount in Supreme Court
through a special leave petition, alleging that no ground had been made
out for ordering recount or inspection of the ballot papers because the
petition was deficient in material facts and particulars and that the
impugned order directing a recount/inspection violated the secrecy of
the
ballot
papers.
This
petition
was
dismissed
and
the
inspection/recount was, thereafter, carried out and a report was
submitted to the High Court. The partial recount falsified the
allegations made by the election petitioner in the petition.
F
After the report of the designated officer was submitted, the
election petitioner filed an application before the High Court quoting
some 'observations; of the Judge made

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JASWANT SINGH
v.
VIRENDER SINGH AND ORS.
NOVEMBER 9, 1994
[DR. A.S. ANAND AND FAIZAN-UDDIN, JJ.]
Constitution of India-Article 136-Represeniation of the People Act,
1951-Section 116A-Appeal-Election Petition-Allegations regarding
commission of irregularities and ill(!galities during counting-Order of
recount-Challenged-SLP dismissed-Returned candidate bound by order
of Supreme Court-He cannot be permitted to reagitate issue of recounting
again.
ELECTION-Representation of the People Act, 1951-Section 100Election Petition-Alleged tampering with . election material after
declaration of result-Not a ground for avoiding an election-Post
declaration irregularities or illegalities-No ground to avoid an election.
ELZCTION-Representation of the People Act, 1951-Section 116 ARepoll-Whether it is within province of Supreme Court to order a repo/1Question left open-Besides, allegations contained in petition did not make
out any case for ordering a partial repoll.
Contempt of Courts Act,
197 I-Section 2-Contempt-Election
Petition-Order for recount-Application seeking stay of further arguments
to enable appellant to move Supreme Court-Transfer Petition-Aspersions
cast on the trial judge of the High Court in discharge of his judicial
function-Aspersions derogatory, scandalous and uncalled for-Appellant,
an advocate-USP. of objectionable and intemperate language-Contempt
of Court-Unqualified regre: expressed pleading 'lack ofunderstanding'-
Accepted-Appellant was found to be genuinely repentent-However, a
strong admonition and warning issued
The appellant and respondents were the candidates for the
elections to the Haryana Legislative Assembly. Respondent No. 1 was
declared elected. The appellant filed an election petition u/s 81/83 of
Representation of the People Act, challenging the election of
respondent No. l. The challenge was based mainly on the ground of
commission of irregularities and illigalities during the counting. The
appellant complained that the method adopted by the Returning
336
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JASWANT SINGH v. VIRENDER SINGH
337
Officer was contrary to the guidelines contained in th~ Handbook for A
Returning Officers issued by the Election Commission of India. It was
alleged that there had been erasures, cuttings, over-writings and
tampering with the figures of various votes pol!ed by different
candidates and also in respect of the rejected ballot papers. According
to the appellant, the result prepared by the Returning Officer was
inaccurate and the irregularities committed during the counting of B
votes and preparing of Forms XVI and XX had materially affected the
result of the election in so far as the returned candidate was concerned.
The appellant prayed for the election of respondent No. 1 to be
declared void and set aside. He prayed for a recount and for a
declaration that he be declared as duly elected.
The respondent No. 1 raised some preliminary objections to the
maintainability of the election petition. It was stated that some of the
allegations contained in the election petition were scandulous while
others were vague and the same did not disclose any cause of action.
The Trial Court held that the over-writings, cuttings and erasures D
had made Forms XVI and XX suspicious and the correctness of the
record doubtful An order was made directing recount of votes. The
returned candidate challenged this order of recount in Supreme Court
through a special leave petition, alleging that no ground had been made
out for ordering recount or inspection of the ballot papers because the
petition was deficient in material facts and particulars and that the
impugned order directing a recount/inspection violated the secrecy of
the
ballot
papers.
This
petition
was
dismissed
and
the
inspection/recount was, thereafter, carried out and a report was
submitted to the High Court. The partial recount falsified the
allegations made by the election petitioner in the petition.
F
After the report of the designated officer was submitted, the
election petitioner filed an application before the High Court quoting
some 'observations; of the Judge made during the hearing and
objecting to the manner in which the two sealed envelopes containing
ballot papers, on which objections had been raised by both sides during G
the recount, were handled by the Court and sought stay of further
arguments to enable the petitioner to approach the Supreme-Court.
Thereafter, a Transfer Petition was filed in the Supreme Court and the
same was dismissed. Neither the petitioner nor his counsel thereafter
appeared in the High Court and the election petition was ultimately
dismissed. Hence this appeal.
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338
SUPREME COURT REPORTS
(1994) SUPP. S S.C.R.
In this appeal, the appellant again referred to the suspicious nature
of the election record and reiterated the submissions made in the High
Court, on the acceptance of which recount had been ordered and urged
that the High Court should have ordered a partial repoll and not
merely a recount. The appellant then argued that the manner in which
the Returning Officer had dealt with the election material, after the
declaration of the result, coupled with the fact that at the time of
recount by the designated officer, seals of some of the packets
containing ballot papers had been found either broken or missing, the
entire election process hact been vitiated. It was submitted that the
Return'ing Officer had retained the ballot papers in his illegal and
unlawful custody for it period of about two days after the declaration of
the result and had also kept back the secret special seal of the Election
Commission, besides all XVI Forms, . contrary to the rules and the
instructions. According to the appellants, this court would in exercise of
its jurisdiction under Article 142 of the Constitution of India, with a
view to do complete justice between the parties, direct partial repoll.
The respondent submitted that the pleadings of the election
petitioner were hopelessly vague and since a judicial recount was :iot a
matter of right, the trial Judge could not have ordered a recount in this
case. It was stated that as the allegations were vague and no supporting·
material had been placed on . the record and therefore, the petition
should have been dismissed as not disclosing any cause of action. The
respondent vehemently complained about the order directing recount
and described it £S totally unjustified and violative of the secrecy of the
ballot papers. The respondent then submitted that since the outer seals
ofall the trunks containing the sealed packets of the ballot papers were
admittedly found to be in.tact, the broken missing seals of scme of the
packets containing ballot papers (in side the trunks) was of no
consequence. It was argued that since the designated officer had not
found any discrepancy in the ballot papers contained in all those
packets, the grievance made by th~ appellant had no basis. It was
further submitted that the failure to comply strictly with the provision
of the Rules, orders or instruction as to the forwarding of the election
documents, after close of the poll and declaration of the result could not
in any event avoid the election of the returned candidate in the absence
of any allegation and proof that post-declaration irregularities were
committed, to cover up pre-declaration illegalities, which could have
. materially affected the result of the election petition. It was stated that
the p~rtial repoll woul~ not be ordered by the. Supreme Court, as the
direction to hold polls, including partial repoll, fell within the province
JASWAN.T SINGH v. VIRENDER SINGH
339
of the Election Commission and was not a relief which could be granted A
by the courts in an election petition that repoll and recount were two
different situations and that the alleged wrongful acceptance or
rejection of votes or irregularities during counting of votes could not
justify a prayer for repoll.
Dismissing the appeal, this Court
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HELD: 1.1. A challenge to the order of recount was made by
respondent No. 1, the returned candidate through special leave petition
which was dismissed by this Court. It was, therefore, not permissible
again for the returned candidate to raise an argument challenging the
correctness of the order of recount, as the earlier order of dismissal of C
the SLP, in the presence of counsel for the parties, would operate as
constructive res judicata. (352-H, 353-A)
N.C. Horo v. Leander Tiur and Ors., [1989) 4 SCC 364 and Bhag Mal
v. Ch. Prabhu Ram and Ors., [1985) 1 SCC 61, relied·on.
1.2. The alleged tampering with the seals of some of the packets
containing the ballot papers, after the declaration of the result, is not a
ground for ~voiding an election through an election.petition. (359-D)
D
1.3. Post declaration non-compliance with the rules or orders or
instructions for the proper custody of the election material by the E
election staff is not one of the grounds on which the election of a
· candicfate can be set aside. Post electoral irregularities may in a given
case be_ used in aid of the allegations relating to pre-declaration
irregularities or iilegali~ies but by themselves they do not afford any
ground to avoid an election. (360-G)
1.4. In the instant case, the breaking of the seals or the missing
seals on some of the packets containing the ballot papers, which were
taken out of the boxes duly sealed, were the result of mishandling of the
packets and were not the result of any tampering with the ballot
papers. (363-H, 364-A)
Jagannath Rao v. Raj Kishore and Ors., [1972) 4 SCC 795, relied on.
2. In the instant case, the appellant failed to establish that the
election material had not been sealed properly or kept in safe custody,
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as per the procedure prescribed by the guidelines and the Rules. No
prayer for repoll was ever made. Besides, the allegations contained in H
340
SUPREME COURT REPORTS
[1994) SUPP. 5 S.C.R.
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the petition did not make out any case for ordering a partial repoll.
This Court, therefore, refrained from expressing any opinion on the
question whether it was within the province of this Court to order a
repoll under the Representation of Peoples Act. (364-D-E)
3.1. An advocate has no wider protection than a layman when he
B
commits an act which amounts to contempt of court. It is most
unbeffitting for an advocate to make imputations against the judge
only because he does not get the expected result, whkh according to
him is the fair and reasonable result available to him. Judges cannot be
intimidated to seek favourable orders. Only because a lawyer appears
as a party in person, he does not get a licence thereby to commit
C
contempt of the court by intimidating the Judges or scandalising the
Courts. He cannot use language, either in the pleadings or during
arguments, which is either intemperate or unparliamentary. These
safeguards are not for the protection of any Judge individually but are
essential for maintaining the dignity and decorum of the Courts and for
upholding the majesty of law. Judges and Courts are not unduly
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sensitive or touchy to fair and reasonable criticism of their judgments.
Fair comments, even if, out-spoken, but made without any malice or
attempting to impair the administration of justice and made in good
faith in proper language do not attract any punishment for contempt of
court; However, when from the criticism a deliberate, motivated and
calculated attempt is discernible to bring down the image of judiciary
E
in estimation of the public or to impair the administration of justice or
tend to bring the administration of justice into disrepute the courts
must heister themselves to uphold their dignity and the majesty of law.
The appellant, had, undoubtedly committed contempt of the Court by
the use of the objectionable and intemperate language. No system of
·justice can tolerate such unbridled licences on the part ofa person, be
F
he a laWyer, to permit himself the liberty of scandalising a court by
casting unwarranted, uncalled for abd unjustified aspersions on the
integrity, ability, impartiality or fairness of a judge in the discharge of
his judicial functions as it .amounts to an interference with the due
course of administration of justice. (366-B-F)
G
3.2. The counsel expressed his 'unqualified regret' on behalf of the
appellant. _The appellant also expressed his apology and pleaded 'lack
of understanding'. In view of unqualified apology tendered by the
appellant and reiterated in absolute terms and being satisfied that the
appellant was genuinely repentent, Coui;t accepts his apology but issues
a strong admonition and warning to him to be more careful in future.
H
(366-G, 367-F)
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.]
341
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5332 of A
1993.
From the Judgment and Order dated the 26th July, 1993 of the High
Court of Punjab and Haryana at Chandigarh in Election Petition No. 16 of
1991.
P.N. Misra, S. Misra, Satish Kumar and A.C. Pradhan for the B
Appellant.
Harish N. Salve, Ravindra Bora and Ms. Meenakshi Grover for
Respondent.
The Judgment of the Court was delivered by
DR. ANAND, J. The appellant through this appeal under Section l 16A
of the Representation of People Act, 1951 (hereinafter the Act) has
challenged the order of the Punjab and Haryana High Court dismissing his
Election Petition No. 16/91.
The elections to the Haryana Legislative Assembly were held along
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with the elections to the Parliament in respect of the seats falling within the
State of Haryana on 20.5.1991. The appellant and respondent Nos. 1 to 16
were the candidates from
71
Narnaund ·Assembly Constituency.
Respondent No. 1, a candidate sponsored by the Janta Dal was declared
elected by polling 20011 votes. The appellant, a nominee of the Indian E
National Congress secured 19973 votes i.e. 38 less votes than the returned
candidate. Since, the real contest was between the appellant and the
returned candidate respondent No. 1, and the challenge in the Election
Petition is also limited, it is not necessary to notice the votes polled by or
the party affiliations of the other respondents. The polling in the
Constituency took place in 132 polling stations. The counting of ballot F
papers took place in the town of Hansi in PCSD High School. Dr. Avtar
Singh, IAS, SOM, Hansi was the Returning Officer, who declared
respondent No. 1 as duly elected.
The appellant filed an election petition under Section 81/83 of the Act
calling in question the election of respondent No. 1. The challenge, in the G
election petition, was based mainly on the ground of commission of
irregularities and illegalities during the counting. The .appellant alleged that
the Returning Officer was biased in favour of respondent No. 1 and that he
had appointed various members of the counting staff of the choice of
respondent No. l and those members improperly rejected the valid votes of
the appellant and illegally inflated the number of votes polled by H
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342
SUPREME COURT REPORTS
[1994] SUPP. 5 S.C.R.
respondent No.
by accepting and counting invalid votes in favour of
respondent No. I. The facts and particulars in this behalf are mainly
contained in paras 11 to 24 of the election petition.
Referring to the manner of counting, the appellant complained that the
manner of the fixing of tables for counting and the fixing of a barbed wire
to keep the counting agents of the candidates outside that barbed wire,
resulted in the non-participation of the candidates and their counting agents
in the counting process and was contrary to the guidelines contained in the
Handbook for Returning Officers issued by the Election Commission of
India. It was alleged that 20 tables had been placed for being used for the
purposes of counting in a small hall and that had led to a lot of congestion
and inspite of the protests of the appellant and other candidates, the
counting continued in the same fashion and therefore it was not possible for
the counting agents appointed by the candidates, including his counting
agents, to properly watch the process of counting of votes and it also
diabled them to raise objections or even note down the particulars of the
votes improperly received in .favour of the returned candidate as also the
votes improperly rejected in so far as the appellant is concerned. That even
at the dias of the Returning Officer, the candidates and their election agents
could not see the proceeding being carried out by the officer sitting on the
dias. With reference to Form XVI in respect of certain booths, it was
alleged that there had been erasures, cuttings, over-writings and tampering
with the figures of various votes polled by different candidates and also in
respect of the rejected ballot papers and those cuttings had not been
certified by any officer or the Returning Officer. It was asserted that the
Returning Officer did not announce the number of votes polled by each of
the candidates as incorporated in Form XX. It was further alleged that after
declaring the result and preparing Form XX (Ex. P. 405), the Returning
Officer had ordered another Form XX to be prepared in violation of the
Rules and Orders with a view to help the returned candidate. That the new
Form XX was prepared on l.7.1991 and during the entire period of 13
days, between the de~laration of the result and the preparation of n~w Form
XX, all the Forms XVI had remained in the custody of the Returning
Officer contrary to the instructions and orders. issued under the Att. The
appellant after the counting was over but before the result was declared,
applied to the Returning Officer for a recount but his application was
wrongly rejected. According to the appellant the result prepared by the
Returning Officer was inaccurate and the irregularities committed during
the counting of votes and preparing of Forms XVI and XX had materially
~ffected the result of the election in so far as the returned candidate is
H ·· coni;:erned. The appellant prayed for the election of respondent No. 1 to be
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.]
343
declared void and set aside. He prayed for a recount and for a declaration A
that he be declared as duly elected.
The respondent No. 1 contested the election petition and denied all the
allegations made by the appellant. He also raised some preliminary
objections to the maintainability of the election petition. It was stated that
some of the allegations contained in the election petition were scandalous B
while others were vague and the same did not disclose any cause of action.
It was also asserted that the allegations regarding the commission of
illegalities or irregularities during counting were an after thought since
during the counting no such complaint had been made either to the
Returning Officer or to the observer appointed by the Ejection Commission.
The following preliminary issues were framed by the Court:
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1) Whether the allegations in paragraphs 6 and 9 of the
election petition are scandalous, irrelevant and liable to be
struck off?
2) Whether the averments made in paragraphs 7 to 9, 26 to D
40 are irrelevant and do not disclose any cause of action? If
so, to what effect?
3) Whether the allegations made in paragraphs 11 (a) to 24
lack in material facts and do not disclose a cause of action?
If so, to what effect?
E
Issue No. 1 was decided against respondent No. 1 and it was found that
the allegations contained in paras 6 and 9 were by no means scandalous.
Issues 2 and 3 were dealt with together and by reference to a number of
judgments delivered by this Court it was held that the election petition did
not suffer from vagueness or want of material facts and particulars in F
support of the pleas raised in the specified paras of the election petition.
Both the issues were also decided in favour of the appellant and against the
returned candidate. The order of the learned single Judge deciding the
preliminary issues against the respondent No. 1 on 6.12.91 was challenged
by the returned candidate respondent No. 1 in this Court through SLP
(Civil) NO. 1239/92. Learned counsel for the respondent, however, sought G
to withdraw the special leave petition stating that the appellant wished to
urge the questions covered by the impugned judgment in an appeal from the
final judgment in the eleation case, if necessary. The special leave petition
was accordingly dismissed as withdrawn on 6.2.92.
On 1.12.1991, the following issues were framed on merits:
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SUPREME COURT REPORTS
(1994) SUPP. S S.C.R.
"I) Whether the result of the election in respect of
respondent No. I has been materially affected on the
grounds described in paragraphs 11 to 39 of the election
peti~ion, and . as a result thereof the election of the
respondent No. I deserve to be set aside/declared void and
the petition, deserves to be declared as duly elected? OPP.
2) What is the effect of not raising objection r¢garding
irregularities in counting before the observer appointed by
the Election Commission and the District Election Officer?
OPP."
C
Both parties led their evidence. The learned Trial Judge after an
appraisal of the evidence observed:
•
"The evidence of the petitioner led in the court that the
counting agents could not participate in the counting is thus
not credible. I also see force in the arguments of the learned
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counsel for the respondent that the silence of 1he petitioner
and his counting agents at the _time when other officers
visited should be sufficient to silence their protest made
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now." ................................................ .
"I, however, find_ that the record prepared with respect to
the result has been over-written in some of the Fotms XVI
and also in Form XX and the same raise some suspicion
about the correctness of that record. Though, the fixing of
the seat of the supervisor on the other end of the table will
not be deemed to be a breach of the Rules but in the present
case, it has acquired significance. According to the lay out
given in Annexure XXV, the counting supervisor had to sit
on one side of the table close to the side on which .the
counting agents are provided the sitting place. It was ·
obviously for the purpose that the counting agents should be
able to observe not only the actual counting process, but
also the preparation of Form XVI, or any other writing
work done by the supervisor. The counting supervisors have
been careless and the result of Assembly Constituency had
been prepared on the back of Form XVI, which was meant
for the Parliament. The same are EXs. P. 306, 311, 347,
349, 361, 378, 381, 383 and 388.
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.]
345
Since, the counting agents could not have seen the A
preparation of Form XVI, this mistake has occurred. This,
by itself may not be a ground for vitiating the counting
process, but it does give support to one limb of the
argument of the learned counsel that the participation of the
counting agents was not that effective as the Rules expect."
B
After considering the evidence of Dewan K.S. Puri, hand-writing
expert and his report Ex. P.409 and some of the Forms XVI for certain
booths, the Trial Court opined that the over-writings, cuttings and erasures
had made those documents (Forms XVI and XX) suspicious and the
correctness of the record doubtful. After a detailed discussion in respect of
various booths in relation to Forms XVI, the learned Judge by his order C
dated January 21, 1993 opined :
"To remove the suspicion created by over written figures in
Forms XVI and XX, the preparation of the result on simple
paper in respect of one booth and an unsigned Form XVI
and to do complete justice between the parties, a partial D
inspection of the ballot papers becomes necessary. It is a
case to which the observations made in the above quoted
authorities are attracted.
and directed :
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I hereby order the opening of the ballot boxes relating to
Booth Nos. 28, 31, 38, 41, 55, 65A, 75, 85, 86 and 98. The
Registrar (Judicial) will appoint a senior officer and two
assistants from the Election Branch to open these boxes and
check the result with the relevant Form XVI relating to
these booths and prepare a report. This inspection shall be F
carried out in the presence of the advocates of both
petitioner and respondent 1. The petitioner and respondent 1
shall also have the right to be present."
The order dated 21.1.1993 directing recount of votes relating to booth
Nos. 28, 31, 38, 41, 55, 65A, 75, 85, 86 and 98 was challenged by G
respondent No. 1 in this Court through special leave petition No. 3230/93.
It was inter alia pleaded in the special leave petition that no ground had
been made out for ordering recount or inspection of the ballot papers
because the petition was deficient in material facts and particulars and that
the impugned order directing a recount/inspection violated the secrecy of
the ballot papers. This Court on 26.3.1993, in presence of learned counsel H
346
. SUPREME COURT REPORTS
[1994) SUPP. S S.C.R.
A
for the parties, dismissed the special leave petition. The inspection/recount
was, thereafter, carried out as directed and a report was submitted to the
High Court on 31.3.1993, which inter a/ia recorded :
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"BOOTH No. 28
1. Vote No. 0025695 was actually marked in favour of Shri
Azad Singh, but was found in the bundle of Shri Jaswant
Singh.
2. Vote bearing No. 0025862 was actually marked in favour
of Shri Karam Singh, but was found in the bundle of Shri
Jaswant Singh.
3. Vote No; 0025536 had been polled in favour of Shri
Virinder Singh, but was found in the bundle of Shri Karam
Singh.
4. Vote No. 0025730 had been polled in favour of $hri
.Jaswant Singh, but was found in the bundle of Shri Karam
''s· h
. mg .
5. Vote No. 0025882 was found in the bundle of rejected
votes, however, it was claimed by Shri Virender Singh,·
respondent that the same had actually been polled in his
favour. He further stated that the marking has been on his
symbol, however, it was smudged.
All these votes had been taken out and sealed separately as
stated above, for the kind perusal of Hon'ble Court.
BOOTH No.JI
(The packet containing the votes of this booth was already
open from the above side. However, it bore seals on its
sides.)
1. Vote No. 0027580 was found in the bundle of rejected
votes but was claimed by Shri Jaswant Singh, that the same
·had been polled in his favour.
The said vote was also taken out and sealed separately ·as
stated above.
·
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.)
BOOTH NO. 38
347
(Oi:te bundle containing the votes of Shri Virender Singh,
respondent was found containing 51 votes instead of 50
votes).
A
1. Vote No. 0034036 which has been marked at two places B
and is claimed to be an invalid vote by the petitioner was
found in the bundle of Shri Virender Singh, respondent.
2. Vote No. 0033735 which is also an invalid vote being
marked at two places was found in the bundle of Shri
Virender Singh, ~espondent.
C
3. Vote No. 0033778 which had actually been polled in
favour of Shri Virender Singh·, respondent was found in the
bundle of Shri Jaswant Singh, petitioner.
4. Vote No. 0033417 which is an invalid vote having been D
marked at two places was found in the bundle of Shri
Jaswant Singh, petitioner.
5,. Vote No. 0033828 which has actually been polled in
favour of Shri Chander Bhan was found in the bundle of
Shri Jaswant Singh, petitioner.
6. Vote No. 0033774 which had actually been polled in
favour of Shri Virender Singh, respondent was found in the
bundle of Shri Karam Singh.
E
All these votes had been taken out and sealed separately for
the kind perusal of Hon'ble Court.
F
BOOTH NO. 41
No discrepancy was found while counting the votes of this
booth.
BOOTH NO. 55
(The seals of the packet containing the votes of this booth
were intact but were not decipherable).
G
In this booth also no discrepancy was found on checking.
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SUPREME COURT REPORTS
(1994) SUPP. 5 s.c:R.
BOOTH NO. 65-A
(One seal on the packet containing votes of this booth was
broken and the other seal·was not decipherable.
Two bundles pertaining to the votes of Shri Jaswant Singh,
Petitioner contained 51 votes each).
l. Vote No. 0058587 which was actually polled in favour of
Shri Virender Singh, respondent was found in the bundle of
Shri Jaswant Singh, Petitioner.
2. Vote No. 0058430 which was actually polled in favour of
Shri Chander Bhan was found in the bundle of Shri Jaswant
Singh, Petitioner.
3. Vote No. 0058546 which has been rejected by the
Returning Officer was claimed by Shri Jaswant Singh,
petitioner that the same had been polled in his favour.
All these votes were taken out and sealed separately for the
kind perusal of the Hon'ble Court.
BOOTH NO. 75
l. Vote No. 0066791 which was found in the bundle ofShri
Jaswant Singh, petitioner was claimed to be an invalid vote
by Shri Virender Singh, respondent.
2. Vote No. 0067048 which is marked at two places ~d as
such an invalid vote, was found in the bundle of Shri
Jaswant Singh, petitioner.
3. Vote No. 0066756 which was found in the bundle of
votes rejected by the Returning Officer was claimed by Shri
Virender Singh, respondent that the same had been polled
in his favour.
BOOTH NO. 85
(The seals of this bundle were already open.)
l. Vote No. 0076599 which was marked in favour .Sh.
Karam Singh, was found in the bundle of Sh. Jaswant
~ingh, petitioner.
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.]
349
2. Vote No. 0076615 which was found in the bundle of A
rejected votes had been claimed by Sh. Jaswant Singh,
petitioner that the same had been polled in his favour.
3. Vote No. 0076726 which was found in the bundle of Sh.
Jaswant Singh, petitioner is claimed to b1; an invalid vote by
the respondent, having been marked at two places. B
However, Sh. Jaswant Singh, petitioner claims to be a valid
vote and that the same had been rightly polled in his favour.
BOOTH NO. 86
Seals of this booth were already open.
As per Form No. XVI ballot papers bearing serial No.
672869 to 673328 had been issued by the Presiding Officer
for this booth i.e. Booth No. 86 of village Ugalan whereas
c
the ballot papers bearing serial Nos. 672869 to 673200 are
shown to have been actually used. However, the votes D
which had actually been polled at this both bore serial Nos.
0077061 to 0077392 which found mention in Form No.
XVI pertaining to Lok Sabha Seat.
On thorough checking it was found that in fact the Form
Nos. XVI in respect of Lok Sabha as well as Vidhan Sabha
seats pertaining to this booth were intermingled/exchanged E
due to some clerical mistake. However, the actual votes
counted by the Returning Officer tallied with the names,
symbols and the numbers of the votes polled by each
candidate in his/her favour as per details given in Form No.
XVI in respect of Vidhan Sabha Seat pertaining to this F
Booth. This position was also admitted to be correct by the
petitioner as well as the respondent and also by their
counsels at the time of counting.
BOOTH NO. 98
1. Vote No. 0087654 which had actually been polled in G
favour of Sh. Chander Bhan was found in the bundle of Sh.
Jaswant Singh, petitioner.
2. Vote No. 0087871 which was marked at two places and
as such an invalid vote was found in the bundle of Sh.
Jaswant Singh, petitioner.
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[1994] SUPP. S S.C.R.
Both these votes were also taken out and.sealed.separately
for the kind perusal·ofthe Hon'ble Court.
Accordingly Fonn· No. XVI in respect of each of the booth
Nos. 28; 31', 41, 55, 65'-A, 78, 85, 86 and 98 having been
prepared separately-were.placed in file No; 4 containing I
'to IO pages which is enclosed with this Report for the kind
perusal'. of the Hon 'hie Court. The votes d:sputed/objected
by the parties have not been included in the Fonn No. XVI
in respect of all the Booths. However, the same been· sealed
separately.
·
As a resume of the above I may submit that leaving aside
the.votes objected/disputed" by either the Petitioner, or. the
Respondent; the Petitioner has further lost 9 votes 'whereas
the-Respondent.has gained 3 more votes."
·
The partial recount; it is thus seen, generally speaking1 falsified- the
allegations made by the election petitioner in the petition.
After the report of the designated officer was submitted to the Trial
Court; the election petition was.listed for hearing. It appears that arguments
were heard in part on 12th May, 1993, when learned counsel for the
election· petitioner (appellant herein) sought time to prepare the case and·to
examine "if he can.advance arguments beyond the.pleadings and, the prayer
in the petition." The case was fixed for 13th May 1993. However, on 13th
May 1993 an application came to be filed by the election petitioner himself
before the learned Judge quotiilg some "observations!' of the learned•Judge
made during the hearing the previous. day and objecting to the· manner in
which two sealed• envelopes containing ballot papers, on· which objections
had, been raised by both sides during the recount were handled by the Court
and sought stay of. further arguments to enable the. election petitioner to
approach-the Supreme-court. The learned Trial Judge made.the following
order and·adjourned the case:
"Counsel for the petitioner has. not appeared• and the
petitioner himself has made a request that he wants to move
the Hon'ble Supreme Court for transfer of the Election
·Petition front this Court• In view of this statement, the
petition is being adjourned. The petitioner wants to place an
application. for transfer on record. He may file it in the
Registry, if so advised.
\
•
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.)
351
During the course of arguments yesterday, two sealed A
envelopes relating to polling Booth Nos. 28 and 31 had
been opened in the presence of the parties and their counsel
at the time when the report of the Commissioner who
carried out test checking was being considered. These open
envelopes had remained in my custody in my Almirah
under lock and key. Since, the case is now being adjourned, B
these open envelopes be resealed and the same be handed
over to the Additional Registrar (Judi.) alongwith other
sealed envelopes."
It transpires from the record, that thereafter a Transfer Petition No.
740/93 was filed in this Court and the same was dismissed on 30th August C
199l.
A scrutiny of the record reveals that neither the petitioner nor his
counsel thereafter appeared in the High Court when the case was taken up
for remaining arguments. The learned Judge while dismissing the election
petition observed:
D
"As a result of the samp~_c•hecking it has been found that
though figures give'fin form XVI appeared to be doubtful
by over. writing but infact they carried almost the correct
record After sample checking of ten booths, it has been
found that nine votes had been wrongly counted in favour of E
the petitioner. The petitioner cannot claim that wrong
record had been prepared to his disadvantage affecting his
election. The petitioner has thus no cause to challenge the
election of the respondent." (Emphasis ours)
In this appeal, learned counsel for the appellant has again referred to F
the suspicious nature of the election record, particularly various Form XVI
and Fonn XX and reiterated the submissions made in the High Court, on
the acceptance of which recount had been ordered and urged that the High
Court should have ordered a partial repoll and not merely a recount.
Learned counsel, however, did not question the correctness of the report of
the designated officer based on recount/inspection.
G
Mr. Harish Salve, learned senior counsel appearing for the respondent
submitted that the pleadings of the election petitioner were hopelessly
vague and since a judicial recount is not a matter. of right and convincing
evidence is the touch stone, the learned Trial Judge could not have ordered
a recount in this case. Referring to the pleas raised in the election petition it H
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[1994) SUPP. 5 S.C.R.
was submitted that the allegations contained in para 11 to para 24 of the
election petition detailing the alleged irregularities committed during. the
process of counting were hopelessly vague and devoid of factual
foundations and diq not justify an order of recount and that the petition
should have been dismissed as not disclosing any cause of action. It is
stated that the allegations were hopelessly vague and no supporting material
had. been placed on the record. It was also pointed out that no objection had
been raised during the counting by the appellant or his agents to RW8
Gulshan Rai, RW9 J.K. Grover and RWIO A.N. Mathur Home Secretary,
who had been appointed as observers by the Election Commission and had
visited the counting hall and therefore the allegations made in the election
petition were an after thought aimed at a fishing enquiry through recount.
Learned counsel . argued that even though as a result of the recount, the
returned candidate and not the appellant was the gainer, the direction for
recount had been erroneously given and was not at all justified and that this
Court, to keep the record straight, may hold that in the nature of pleadings
which were vague and indefinite and in the absence of any supporting
material, the order of recount was not justified.
Mr. Salve then submitted that s'ince learned counsel for the election
petitioner had not disputed that the total number of votes polled by each of
the candidate as reflected in original Form XX, were the same as shown in
the revised Form XX, and that the aggregate figures in both the forms,
candidate-wise, of the valid votes polled by them were the same, no
grievance could be made about the erasures etc. in Form XX or in some of
Form XVI, on the basis of which Form XX had been prepared. Learned
counsel argued that the appellant was trying to make a capital out of the
erasures and over-writings etc. on some of the Forms XVI, which were
bonafide corrections, and the hollowness of the grievance of the appellant
stood totally P.Xposed by the report of the recount/inspection~ Learned
counsel vehemently corr.plained about the order directing recount and
described it as totally unjustified and violative of the secrecy of the baUot
papers.
· The submission of Mr. Salve that on account of the lack of material
facts and particulars in paras 11 to 24 of the election petition no case had
been made out for ordering a recount and therefore the learned Trial Judge
could not have ordered recount does appear to us to be justified, keeping in
view the nature of the pleadings, but this need not detain us because a
challenge to the order of recount was made by respondent No. l, the
returned candidate, through SLP No. 3230/93 which was dismissed by this
Court.· It is, therefore, not permissible again for the returned candidate to
'J
JASW ANT SINGH v. VIRENDER SINGH [DR. ANAND, J.]
353
raise an argument challenging the correctness of the order of recount, as ~e A
earlier order of dismissal of the SLP, in the presence of learned counsel for
the parties, would operate as constructive res judicata. In a somewhat
similar situation in N.C. Horo v. Leander Tiru and Ors., (1989) 4 SCC 364,
an argument similar to the one raised by Mr. Salve was repelled by this
Court. The Bench observed :
"Counsel next relied upon the decisiort of this Court in
P.K.K Shamsudeen v. KAM Mappi/lai Mohindeen and
argued that there was no factual foundation established by ·
the respondent have an inspection of ballot papers. In our
opinion, the said decision had apparently no relevance to
B
the present case. Herein, the High Court by the order dated C
November 17, 1987 has reached the conclusion and
recorded a finding as to the prima facie case calling for
inspection of ballot papers. That conclusion as to the prima
· facie case was based on consideration of relevant evidence
produced by the parties.