# M.R. GOPALAKRISHNAN v. THACHADY PRABHAKARAN AND ORS

- **Citation:** [1994] Supp. 6 S.C.R. 460
- **Court:** Supreme Court of India
- **Decided:** 1994-12-13
- **Case number:** Civil Appeal No. 3755 of 1992
- **Bench:** Dr. A.S. Anand, Faizan Uddin
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-r-gopalakrishnan-v-thachady-prabhakaran-and-ors-12645
- **Pages:** 25

## Headnote

Election: Representation of People Act, 1951-Sections 51-58, 63, 94,
JOO, 123(3) and 128 Election to Legislative Assembly-Irregularity not
advanced orally or in writing at the time of counting of votes-Whether
constitutes irregularity in counting of votes-Whether could affect the result
of election of the returned candidate-Held: No-consistent practice is that
Courts do not to interfere unless there is grave or palpable error in the
appreciation Jf evidence-Stressed
/
I
The appellant and respondents 1 to 7 were candidates for a
Legislative Assembly seat. The total number of votes polled in the said
election were 97,969, out of which 1,375 were rejected as invalid votes.-
At the end of final counting, the result of election was declared and the
respondent No. 1 was returned as successful candidate by a margin of
33 votes.
The appellant challenged the election of the returned candidate by
filing an election petition before the High Court on the grounds mainly
that the counting of votes for the Legislative Assembly as well as
Parliamentary constituency both took place simultaneously in a small
hall which was of the size of 80 x 20 feet; there were several tables and
chairs in the said counting hall and the ,counting agents of all the
candidates and other officials were present in the hall, it became
crowdy and the sorting out of bundles of ballot papers was done hastily
and, therefore, it was not possible for the counting agents of the
appellant to carefully keep a track of the process of sorting out and
therefore a reasonable opportunity was not given to the appellant or his
agents to note and satisfy themselves that the bundles were really of the
candidates for whom the votes were cast or the correctness of the ballot
papers in each bundle. It was also alleged that the Returning Officer
rejected the votes as invalid despite the protest by the appellant's
election agent, and he made an application for recounting, alleging
specific irregularities in the counting but the same was unreasonably
rejected by the returning officer and the respondent No. 1 was declared
elected. It has been further alleged that on 17.6,91 the appellant had
460
M.R. GOPALAKRISHNAN v. T. PRABHAKARAN
461
submitted an application to the District Collector for recounting and A
the election agent of the appellant had also sent an application to the
Chief Election Officer pointing out the irregularities in the counting.
The appellant further alleged that several postal ballots were rejected
without valid reason and the votes cast in favour of the appellant were
treated as invalid and in many polling stations the figures in ballot
paper account did not tally.
B
It was also alleged that several persons had cast their votes by
committing acts of impersonation in place of real and genuine voters. It
further alleged that 32 voters had cast their votes twice as their names
were entered in the electoral roll in more than one place, and therefore,
the result of the election had been materially affected in so far as the C
returned candidate was concerned.
The appellant also made allegations of corrupt practices by
respondent No. 1 in the said election by publishing news items in the
Malayala Manorma Daily to create an impression in the mind of the
voters of the constituency that the appellant was indulging in D
undesirable activities to secure the release of convicts who were
undergoing life imprisonment for the purpose of making use of their
services in the election and also alleged publishing of pamphlet and
circulating the same with a false statement of the knowledge of
respondent No. 1 and his election agent and due to circulation of the E
pamphlets he lost large number of votes and also alleged violation of
Rule 27(1) and Rule 54-A of the Election Rules.
The Respondent No. 1 while refuting the allegations made against
him and his election agent, filed a recrimination petition alleging that
the appellant himself was guilty of committing corrupt practice as F
define

## Text

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M.R. GOPALAKRISHNAN
v.
THACHADY PRABHAKARAN AND ORS.
DECEMBER 13, 1994
[DR. A.S. ANAND AND FAIZAN UDDIN, JJ.]
Election: Representation of People Act, 1951-Sections 51-58, 63, 94,
JOO, 123(3) and 128 Election to Legislative Assembly-Irregularity not
advanced orally or in writing at the time of counting of votes-Whether
constitutes irregularity in counting of votes-Whether could affect the result
of election of the returned candidate-Held: No-consistent practice is that
Courts do not to interfere unless there is grave or palpable error in the
appreciation Jf evidence-Stressed
/
I
The appellant and respondents 1 to 7 were candidates for a
Legislative Assembly seat. The total number of votes polled in the said
election were 97,969, out of which 1,375 were rejected as invalid votes.-
At the end of final counting, the result of election was declared and the
respondent No. 1 was returned as successful candidate by a margin of
33 votes.
The appellant challenged the election of the returned candidate by
filing an election petition before the High Court on the grounds mainly
that the counting of votes for the Legislative Assembly as well as
Parliamentary constituency both took place simultaneously in a small
hall which was of the size of 80 x 20 feet; there were several tables and
chairs in the said counting hall and the ,counting agents of all the
candidates and other officials were present in the hall, it became
crowdy and the sorting out of bundles of ballot papers was done hastily
and, therefore, it was not possible for the counting agents of the
appellant to carefully keep a track of the process of sorting out and
therefore a reasonable opportunity was not given to the appellant or his
agents to note and satisfy themselves that the bundles were really of the
candidates for whom the votes were cast or the correctness of the ballot
papers in each bundle. It was also alleged that the Returning Officer
rejected the votes as invalid despite the protest by the appellant's
election agent, and he made an application for recounting, alleging
specific irregularities in the counting but the same was unreasonably
rejected by the returning officer and the respondent No. 1 was declared
elected. It has been further alleged that on 17.6,91 the appellant had
460
M.R. GOPALAKRISHNAN v. T. PRABHAKARAN
461
submitted an application to the District Collector for recounting and A
the election agent of the appellant had also sent an application to the
Chief Election Officer pointing out the irregularities in the counting.
The appellant further alleged that several postal ballots were rejected
without valid reason and the votes cast in favour of the appellant were
treated as invalid and in many polling stations the figures in ballot
paper account did not tally.
B
It was also alleged that several persons had cast their votes by
committing acts of impersonation in place of real and genuine voters. It
further alleged that 32 voters had cast their votes twice as their names
were entered in the electoral roll in more than one place, and therefore,
the result of the election had been materially affected in so far as the C
returned candidate was concerned.
The appellant also made allegations of corrupt practices by
respondent No. 1 in the said election by publishing news items in the
Malayala Manorma Daily to create an impression in the mind of the
voters of the constituency that the appellant was indulging in D
undesirable activities to secure the release of convicts who were
undergoing life imprisonment for the purpose of making use of their
services in the election and also alleged publishing of pamphlet and
circulating the same with a false statement of the knowledge of
respondent No. 1 and his election agent and due to circulation of the E
pamphlets he lost large number of votes and also alleged violation of
Rule 27(1) and Rule 54-A of the Election Rules.
The Respondent No. 1 while refuting the allegations made against
him and his election agent, filed a recrimination petition alleging that
the appellant himself was guilty of committing corrupt practice as F
defined in Section 123 of the Act. He further alleged that the appellant
has committed corrupt practices namely publishing notices containing
an appeal to voters belonging to Muslim and Ezhuva community to
vote for L.D.F. candidate, which amounted to corrupt practice as
defined under Section 100 read with sub-section (3) of Section 123 of
the Act. On the allegation in the recrimination petition the respondent G
No. 1 submitted that even if the appellant had been declared elected his
election would have been void 9n the aforesaid grounds.
The High Court held that there was no irregularity in the counting
of votes which may have materially affected the result of the election;
th~ the rejection of the postal ballet papers was for valid reasons.
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462
SUPREME COURT REPORTS
(1994] SUPP. 6 S.C.R
on· the allegation of double voting by 32 voters the High Court
recorded the finding that respondent received 20 votes improperly. The
High Court therefore, took the view that since the improper receipt of
20 votes did not materially affect the result of election of the returned
candidates as it only reduced the margin from 33 to 13 and dismissed
the election petition. High Court did not consider the allegations made
against the petitioner in the recrimination petition filed by the
respondent No. 1. Aggrieved by the said judgment the present appeal
has been preferred.
Dismissing the appeal, the Court
HELD: 1. The irregularities pointed out in pareas 1 to 5 of the
application were not mentioned in the earlier two applications. This
clearly goes to show that the irregularities pointed out in their latter
application are only after thought and not based on any true facts. If in
fact any of the irregularities of the kind alleged in paras 4 and 7 of the
election petition or those as mentioned in the applications dt. 21.6.91
were in fact committed, it is difficult to understand as to why these
irregularities were not pointed out to the returning Officer or any of
the observers when they visited the counting hall when counting was
going on. No complaint about any irregularity or about the uncongenial
atmosphere of the hall was reported either orally or in writing to the
Returning Officer or to any official connected with the affairs of the
·counting during the course 'or counting on 16.6.1991. It is therefore
difficult to accept the allegations that the atmosphere of counting hall
was not congenial or there was any difficulty in the counting due to the
size of the hall or any irregularity was committed as alleged by the
appellant in the election petition. [476 F to HJ
2. The rules and procedure of counting provide the candidates and
their counting agents sufficient and adequate opportunity to see and
examine and raise objections, if any, in respect of any ballot paper with
regard to its validity or otherwise and it is only after objections, if any
the ballot paper is admitted as valid or invalid as the case may be. Not
only this but even after the completion of the process of counting a
provision is made in Rule 63 to make a demand to the Returning
Officers for recount of the votes either wholly or in part stating the
grounds on which the demand for such recount is made. It is only after
compliance of this elaborate procedure that Returning Officer prepares
the result sheet in form 20 and declares the result. [478 A to BJ
..
M.R. GOPALAKRISHNAN v. T. PRABHAKARAN
463
3. The rules provide adequate opportunity to a candidate, his A
election agent and counting agent to have a watch over the counting
process before the result is declared and if they raise any objection as
to the validity or otherwise of any ballot paper and if the said objection
is improperly rejected, the candidate, his counting and election agents
are well informed of the nature of the objection that was raised with
regard to the ballot papers and make a concise statement of material B
facts in the election petition in relation thereto. The demand of a
defeated candidate for recount of votes has to be considered keeping in
view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the election petitioner is able not only to plead and disclose
the material facts but also substantiate the same by means of evidence
of reliable character that there existed a prima facie case for the C
recount, no Tribunal or Court would be justified in directing the
recount. [478 D to FJ
Bhabhi v. Sheo Gobind and Others, [1976J 1 SCC 687 and
Satyanarayana Dudhani v. Uday Kumar Singh, [1993J Suppl. 2 SCC 82,
referred to.
D
4. There is no specific instance or allegation in the petition with
regard to any particular irregularity and the meagre and vague
allegations that have been made are not supported by any
contemporaneous evidence making out a prima facie case for recount
and, therefore, the Returning Officer as well as the High Court were E
fully justified in rejecting the demand for recount. [479 G to HJ
5. In fact the appellant has neither pleaded the details and the
number of such invalid votes which were counted in favour of
respondent No. 1 nor has he given the particulars of the number of
such valid votes in favour of the appellant and which were wrongly F
rejected during the course of counting. This apart, the Returning
Officer, Supervisors and other officials were also present in the
counting hall throughout the process of counting and the observers also
visited the counting hall but neither the appellant nor any of his
counting agents pointed out or objected either orally or in writing
about invalid votes being counted in favour of the appellant were G
rejected. The evidence of Returning Officer clearly goes to show that
no such complaint was made by any one during the course of counting.
(482 C to DJ
6. There is absolutely no basis to show that there prevailed any
kind of confusion or irregularity in the counting which could have H 1
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464
SUPREME COURT REPORTS
[1994] SUPP. 6 S.C.R
disabled the appellant or: his agents from watching the process of
counting. No such grievance was ever advanced by the appellant or his
agents at the time of counting either orally or in writing to the
Returning Officer or to the observers or any member of the counting
staff deputed for the purpose. The applications for recounting were
made only after the counting was over and the result was declared, and
that too with vague allegations. [482 H, 483 A to BJ
7. It has been the consistent practice of this Court not to interfere
with the findings on the question of fact unless there is some grave or
palpable error in the appreciation of evidence on the basis of which the
findings were arrived at by the Tribunal/High Court. In the present
case a scrutiny of the evidence adduced. by the parties shows no error
or infirmity in the finding. [483 F]
8. Even if it is accepted that the 9 votes in favour of the respondent
No. 1 should have been rejected for double voting by the said nine
·voters, although there is no sound basis for the same, yet it would only
reduce the margin from 13 to 4 without materially affecting the result
of the election. Thus even after giving all the possible discounts the
election of Respondent No. 1 cannot be set aside or declared void as he
still remains a winner. In view of these facts and circumstances it would
be a futile exercise to go into the question of recrimination petition
made by the respondent No. 1 making certain allegations against the
appellant. [483 G to H, 484 A]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3755 of
1992.
From the Judgment and Order dated 8.7.92 of the Kerala High Court in
Election Petition No. 6of1991.
P.S. Poti and Ms. Malini Poduval for the Appellant.
Joseph Vallapally, R. Sasiprabhu, A. Jayaram, Mr. George Jacob and
Mukti Sinha for the Respondent.
The Judgment of the Court was delivered by
FAIZAN UDDIN, J. This appeal under Section 116-A of the Representation of People Act, 1951 (hereinafter referred to as the Act.) has been
directed against the Judgment of the High Court of Kerala dismissing the
H
Election Petition of the appellant whereby he had challenged the election of
M.R. GOPALAKRISHNAN v. T. PRABHAKARAN [FAIZAN UDDIN, J.]
465
.
respondent No. 1 as a member of Kerala Legislative Assembly from A
constituency No. 104 Kayamkulam, and for a further declaration that the
appellant was duly elected for the said seat for which the election was held
on 12.6.1991 and the result of which was declared on 16.6.1991.
2. In all there were eight candidates in the field i.e. the appellant and
respondents No. 1 to 7 who contested the said election for the Legislative B
Assembly seat from 104 Kayamkulam constituency. The appellant was a
candidate fielded by the Communist Party of India (Marxist). The
respondent no. 1 herein was the candidate sponsored by the Indian national
Congress which was a constituent party of the United Democratic Front.
The total number of votes polled in the said election were 97,969 out of
which 1,375 were rejected as invalid votes and 96,594 votes were received C
as valid votes. At the end of the final counting which took place on June 16,
1991 the result was declared and the respondent No. 1 was returned as a
successful candidate by a margin of 33 votes against his nearest rival, the
petitioner/appellant herein. The main contest was between the appellant and
the respondent no. 1. The appellant had polled 46,649 votes while the
respondent No. 1 had polled the 46,682 votes and thus the respondent No. 1 D
had won the election by a margin of 33 votes over his nearest rival, the
petitioner/appellant herein and, therefore, he was declared elected.
3. The appellant challenged the election of the returned candidate
respondent No. l herein by filing an Election Petition under the relevant
provisions of the Act, in the High Court of Kerala on several grounds. It E
was alleged by the appellant that the counting of votes for the Legislative
Assembly Constituency as well as counting of votes for the Kayamkulam
segment of Mavelikara Parliamentary Constituency both took place
simultaneously in the same hall which was of the size of 80 x 20 feet and as
there were several tables and chairs in the said counting hall and the
counting agents of all the candid11tes and other officials were present in the F
hall, it became crowdy and the sorting out of bundles of ballot papers was
done hastily and, therefore, it was not possible for the counting agents of
the petitioner/appellant to carefully keep a track of the process of sorting
out. It was, therefore alleged that a reasonable opportunity was not given to
the appellant's agents to note and satisfy themselves that the bundles were G
really of the candidates for whom the votes were cast or the correctness of
the ballot papers in each bundle. It was alleged that the Returning Officer
. rejected
the
votes
as
invalid
inspite
of the
protest
by
the
petitioner/appellants election agent. The petitioner/appellant's election
agent made an application for recount alleging specific irregularities in the
counting but the same was unreasonably rejected by the Returning Officer H
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466
SUPREME COURT REPORTS
[I 994] SUPP. 6 S.C.R
and the respondent No. 1 was declared elected. It has been further alleged
that on 17.6.91 the petitioner/appellant submitted an application to the
District Collector, Alapuzha for recounting and the election agent of the
petitioner/appellant had also sent an application to the Chief Election
Officer
pointing
out
the
irregularities
in
the
counting.
The
petitioner/appellant further alleged that several postal ballots were rejected
without valid reason and the votes cast in favour of the appellant were
treated as invalid and in many polling stations the figure in the ballot paper
account did not tally.
4. The petitioner/appellant further made allegations that several persons
had cost their votes by committing acts of impersonation, in place of the
real and genuine voters. The appellant also alleged that 32 voters had cast
their votes twice in the same constituency as their names were entered in
the electoral roll in more than one place and that 18 persons had vo~ed in
more than one constituency the details of which were given in Annexure IV
and V annexed with the Election Petition. It was therefore alleged that the
result of the election had been materially affected in so far as the returned
candidate is concerned.
5. The petitioner/appellant also made allegations against respondent
No. l for committing corrupt practices in the said election by publishing
news item in the Malayala Manorma Daily dated 18.8.91 with a view to
create an impression in the mind of the voters of the constituency that the
petitioner/appellant was indulging in undesirable activities to secure the
release of convicts who were undergoing life imprisonment for the purpose
of making use of their services in the election. The appellant also alleged
that with a view to prejudice the election prospects of the appellant a
pamphlet was published and circulated in the constituency which contained
false statement to the knowledge of respondent No. l and his election
agent. The petitioner/appellant alleged that a news item was published on
7 .6.91 in Malayala Manorma daily followed by an election pamphlet which
was widely circulated in the Kayamkulam Assembly Constituency the
contents of which were false and designed to prejudice the minds of
Muslim voters in the constituency as there was a number of Muslim voters
in wards No. 7,9 and IO. The petitioner/appellant alleged that due to the
distribution of said pamphlet he lost large number of votes. The appellant
also alleged that another pamphlet was also published after the death of Shri
Rajiv Gandhi mentioning that the workers of the appellant had destroyed
the photos of Shri Rajiv Gandhi and burnt Bhagwat Gita, Holy Quran and
Holy Bible. The petitioner/appellant alleged that this pamphlet was
published after 23.5.91 and prior to 12.6.91 with the consent and
M.R. (}OPALAKRISHNAN v. T. PRABHAKARAN [FAIZAN UDDIN, I.]
467
knowledge of.respondent No. I with a view to prejudice the mifids of the A
voters of the constituency against the petitioner/appellant.
6. The petitioner/appellant further alleged in the Election Petition that
out of the total number of 1280 postal ballots, 246 postal ballots were
rejected by violating Rule 27(1) and Rule 54-A of the conduct of Election
Rules. The petitioner/appellant alleged that his election agent requ~sted the B
Returning Officer to count all the postal ballots but the returning Officer
illegally rejected 246 postal ballots and the request for recount of those 246
ballots papers was also rejected without assigning any reason for such
rejection. On these grounds the appellant prayed for declaration of the
election of respondent No. 1 as void and to declare the petitioner as duly
elected candidate for the said constituency.
·
C
7. The returned candidate respondent No.
contested the Election
Petition filed against him by controverting all the adverse allegations. The
respondent No. 1 pleaded that the Returning Officer had afforded adequate
opportunity to tbe election agents and counting agents of the candidates to
carefully watch the sorting out of the ballot papers and the Chief Election D
agent of the petitioner/appellant was. present throughout the process of
counting. But as there were no irregularities nobody raised any objection
regarding the sorting out or counting of votes. The respondent No. I
pleaded that on the demand of the election agent of the appellant a second
round of counting of votes of certain polling stations was done but no fault
was noticed. He has pleaded that 246 postal ballots were rejected for valid E
reasons and no illegality was committed by the Returning Officer in the
matter of dealing with postal ballots. The respondent No. I further pleaded
that no person had cast any vote by committing acts of impersonation as
alleged by the appellant in his election petition. The respondent No. I
emphatically denied that Annexure VII and VIII were published by him or F
by any one of either with his consent and knowledge or that of his election
agent. He asserted that his election agents were in no way concerned or
associated with the alleged publication of Annexure VII and VIII. He also
refuted the allegation of publication of Annexure IX and X either with his
consent or knowledge or that of his election agent.
G
8. The respondent No. I while refuting the allegations made against
him and his election agent filed a recrimination petition under section 97 of
the Act alleging that the petitioner/appellant himself was guilty of
committing corrupt practice as defined in Section 123 of the Act. He
alleged that one M.R. Rajasekharan was the election agent of the
petitioner/appellant who was also the Secretary of the Election Committee H
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468
SUPREME COURT REPORTS
[1994] SUPP. 6 S.C.R
and it was he who printed and published a notice under the caption (English
Version) "Elect the candidate of left Front", the copies of which were
distributed in various parts of the constituency Qn 10.5.91. He further
alleged that another notice was published on 7.6.91 by the election agent of
the appellant under the caption (English Version) "let the devotees of Shri
Narayana think". The said two notices were filed by the respondent No. 1
as Annexure 'A' and 'B' along with the recrimination petition. Annexure
'A' contained an appeal to the Muslim community to vote for L.D.F.
candidate and Annexure 'B' contained an appeal to voters belonging to
Ezhuva community which according to the respondent No. 1 amounted to
corrupt practice as defined under Section 100 read with sub-section (3) of
Section 123 of the Act. The respondent No. 1 further made allegations of
double voting by some voters while names of some voters appeared in
neighbouring constituency as well. On these allegations in the recrimination
petition the respondent No. 1 submitted that even if the appellant had been
declared elected his election would have been void on the aforesaid
grounds.
9. The High Court framed necessary issues on the aforesaid pleadings
and after the evaluation of the evidence adduced by the parties and talking
into account the material on record held that there was no irregularity in the
counting of votes which may have materially affected the result of the
election; that the rejection of the postal ballot papers was for valid reasons;
that it is clear from the evidence that as and when the petitioner's agent
raised any objection regarding the counting there was checking and
rechecking and according to the evidence of Returning Officer; PW 16 at
least 40 per cent of the ballot papers were subjected to test checking but no
difference was found in such test checking and therefore, in the absence of
any specific irregularity pointed out by the petitioner/appellant's agent
regarding the counting, PW 16 was justified in rejecting the request for recount and as such no cru.e was made out for directing recount; that the
petitioner/appellant had failed to establish that the pamphlets Ext. P .158 and
Ext. P 159 were printed and published with the consent and knowledge of
· the respondent No. 1 and that the alleged publication do not fall within the
purview of corrupt practice as envisaged under sub-section (4) of section
123 of the Act; that the petitioner/appellant had failed to prove that
Annexures VIII, IX and X i.e. Ext. P 161, Ext. P 162 and Ext. P 157 were
printed, published and circulated by the respondent No. 1 or his election
agent or by any other person with their consent and knowledge; that the
petitioner also failed to prove that four persons had cast votes by
impersonation as alleged in para 4 of the election petition. However, the
High Court on issue No. 8 with regard to the petitioner/appellant's
M.R. GOPALAKRISHNAN v. T. PRABHAKARAN [FAIZAN UDDIN, J.]
469
allegation of double voting by 32 voters recorded the finding that A
Seethabhai Sanjivan, PW 2 had cast two votes in respect of electoral roll
No. 051419, Ext. P 7 and No. 048734 Ext. P 9 and, therefore, both were
_..
declared as void. The High Court also recorded the finding that voter No.
375 and voter no. 1271 in the electoral roll relate to the same person
Achuthan Sukumar.an, PW 3 and Achuthan had cast his vote in
Kayamkulam constituency against voter No. 1271 in Ext. P 5 and that B
someone else had cast his vote against voter No. 375 in Ext. P 8 which the
High Court declared !O be void. Similarly the High Court further recorded
the finding that Pulikkandathil Sujatha Achuthan, voter No. 376 in Ext. P 8
is the same whose name appears in the polling station No. 43 as well as
polling station No. 45 and therefore, one vote has been declared as void.
The High Court also held that voter No. 1221 in Ext. P 15 and voter No. C
143 in Ext. P 16 is one and the same person Sagar Yunus Kunju, PW 5 and
that someone had cast the vote on behalf of PW 5 against voter No. 143 in
Ext. P 16 and, therefore, one vote against P 16 has also been declared void.
The High Court also held that Madhavan Neelakanthan, PW 11 had cast
two votes in the same constituency (Ext. P 43 and Ext. P 44) and, therefore,
both have been declared void. The High Court also declared one vote of D
PW 12 to be void. It was also found that the name of Kunjumuthu @
Kunju, PW 13 and Anjali Siril Kunju Muthu @ Muthu is one and the same
person whose name appeared in polling station No. 7 as well as in polling
station No. 35, who had cast vote at both the places and, therefore, both the
votes are declared void. The High Court also found that one vote of PW 27
cast against counterfoil No. 001475 (Ext. P 89) was liable to be declared E
void. Similarly it was found that Madhuradha Krishnan, PW 29 had cast his
vote twice and, therefore, both the votes against counterfoil No. 041933
(Ext. P 97) and counterfoil No. 090465 (Ext. P 98) were also declared void.
One vote of Radhakrishnan Kun ju, PW 30 was also declared as void as his
name appeared in two polling stations and he had cast his vote only in one F
polling station while someone else had cast the vote at the other polling
station by impersonation. Similarly one vote of Suresh Kumar Dasappan
Pillay, PW 31 was also declared void for the same reasons. The High Court
also found that Abdul Rasheed Ayyar Kunju, PW 32 had cast his vote twice
in the same constituency and, therefore, both the votes are declared void.
Thus under Section No. 8 the High Court found in all 20 votes to be void. G
The High Court therefore, took the view that since the improper reception
of 20 votes did not materially affect the result of election of the returned
candidate as it only reduced the margin from 33 to 13 by reason of which
the election of the returned candidate respondent No. I herein cannot be
declared to be void. Consequently, the question of declaration of the
petitioner as the returned candidate did not arise. Since the High Court H
470
SUPREME COURT REPORTS
[1994] SUPP. 6 s .. c.R
A
found that even after giving a discount of 20 improperly received votes, the
election of respondent No. 1 could not be cancelled or declared void and,
therefore, it dismissed the election petition. The High Court did not consider it necessary to go into the allegations and grounds raised by the
respondent No. 1 against the petitioner/appellant in his recrimination
application filed under Section 97 of the Act and the evidence adduced in
B
support of the same.
10. Though Shri P.S. Poti, learned senior counsel appearing for the
petitioner/appellant assailed all the findings recorded by the High Court in
dismissing the election petition but his main attack was that :
C
(i) The counting was not conducted legally and properly and in a
D
congenial atmosphere by reason of which the Returning Officer ought not
to have rejected the application for recount and that in any case the prayer
made to that effect in the election petition should not have been rejected by
the High Court in view of the facts and circumstances mentioned in paras 4
and 7 of the election petition.
(ii) Out of the total No. of 1280 postal ballots, the Returning Officer
rejected 246 ballot papers and, out of these 246, 24 postal ballot in Ext. P
54 series only were rejected giving reasons in accordance with Rule 54(A)
( 4) of the conduct of Election Rules, 1961 while 222 ballot papers of ext. P
55 series were rejected without any endorsement for such rejection which is
E
clearly repugnant to the mandatory provisions contained in Rule 54 (A) (4)
and, therefore, this reason _alone was sufficient to hold that the result of the
election was materially affected as according to the appellant there were
valid postal ballots in favour of the appellant amongst those which were
improperly rejected and;
F
(iii) That invalid votes were counted in favour of the returned
candidate respondent No. 1 and out of the total rejected votes of 1375 quite
a large number of valid votes in favour of the appellant were rejected which
materially affected the result of the election.
11. In order to appreciate the first contention advanced by the learned
G
couns~l for the appellant and referred to above it has to be seen whether the
appellant has pleaded. material facts and laid adequate foundation for a
direction for inspection and recount. In this regard learned .counsel for the
appellant submitted that the pleadings with regard to the material facts for a
direction for recount are contained in paras 4 and 7 of the election petition.
Briefly stated the allegations made in para 4 of the election petition are that
H
the counting of 104, Kayamkulam Assembly Constituency as well as the
•
M.R. GOPALAKRISHNAN v. T. PRABHAKARAN [FAIZAN UDDIN, J.)
471
counting of Parliamentary election was simultaneously done in a Hall A
which had a length of 80 feet and width of 20 feet which was insufficient to
properly accommodate the stage of the Returning Officer and the assistants
as well as the counting staff, candidates and their counting agents by reason
of which various irregularities were either consciously committed by the
counting staff or occurred on account of the hurried sorting out and putting
the ballot papers into different compartments of the candidates or the B
compartments meant for the doubtful votes while bundling up the ballot
papers of respective candidates into bundles of 50 each. It is stated that it
was difficult for the agents of the petitioner/appellant to carefully keep
track of the sorting out or identifying the voters mark on the ballot papers
before they were put into different compartments. It has been further
alleged that a partisan attitude of the counting officers and supervisors was C
visible. The counting agents of the petitioner raised objection on several
occasions
and
Shri
M.R.
Rajesekharan,
election
agent of the
petitioner/appellant mentioned these facts to the Returning Officer who told
him that it was up to the counting agents to watch the process and the whole
counting is to be done without delay as the result has to be declared as early
as possible. It is further alleged in the same para 4 of the petition that as the D
petitioner was aware of several specific irregularities at the counting and
the fact that the Returning Officer himself had rejected several votes as
invalid over ruling the protest of the petitioner's election agent that they
were the votes polled by the petitioner, so the petitioner's election agent
made an application for recount of the votes but the Returning Officer
rejected the application without any justification and unilaterally declared E
the first respondent as elected by a margin of 33 votes despite vehement
protest of the petitioner's election agent. His pleadings contained in para 7
of the election petition relate to the allegation about casting of several votes
by impersonation giving the names of four persons who were alleged to
have voted for the persons whose name appeared in the electoral roll in
polling booths No. 15, 30 and 3. According to the learned counsel for the
appellant these facts in addition to the fact that 222 postal ballots were
rejected contrary to the mandatory rule constituted material facts for
direction for inspection and recount of all the ballot papers. But on a careful
F
and critical examination of the facts and the evidence on record we find that
they speak contrary to the allegations referred to above in the petition G
which shall be discussed in the paras hereinafter.
12. We shall first discuss the evidence relating to the alleged
irregularities said to have been committed during the counting. Shri M.Siraj
Kunju, PW 16, District Planning Officer was the Returning Officer of 104,
Kayamkulam Assembly Constituency for the general election held on June H
472
SUPREME COURT REPORTS
[1994] SUPP. 6 S.C.R
A
12, 1991. He deposed that the Chief Election Agents of various candidates
were sitting near him (Returning Officer). There were two independent
observers deputed by the Election Commission who visited the Counting
Hall. He also stated that the election agent of the petitioner/appellant
wanted recounting of the entire ballot papers but as he had not specifically
requested in respect of rejection of any ballot paper in a particular polling
B
station he did not allow the application for recount. But on demand by the
Chief Election Agent of the petitioner the entire ballot papers of polling
booths N. 96 to 111 were counted twice. He also stated that he himself had
supervised the second counting in respect of some of the tables and his
Assistant Returning Officers supervised in respect of other tables. He
c
·D
E
F
further deposed that before a final decision was taken in the application for
counting, he consulted the officials who were Incharge of the preparation of
the final sheets whether there was any mistake and he himself checked the
result sheets. He stated that during the time of counting the actual number
of votes secured by each candidate was shown in the Display Board and
this was being done till the counting was over but no body raised any
objection. A perusal of the evidence of the Returning Officer, PW 16 will
go to show that no question in cross-examination on behalf of the appellant
was directed against the alleged uncongenial atmosphere in the counting
hall or any difficulty in the sorting out or putting the ballot papers in different compartments or in the bundles of different candidates. No question
was also directed that the agents felt any difficulty in carefully keeping the
track on the sorting out or identifying process or regarding the indifferent
attitude of the counting staff. No question was also put to the Returning
Officer that proper opportunity to the appellant's agents was not afforded
with regard to the verification of marks made by the voters on the ballot
papers.
13. It is no doubt true that M.R. Rajasekharan, PW 98, election agent
of the petitioner/appellant made an application on 16.6.91 purporting to
have been made at 10.35 PM to the Returning Officer for recount. The said
application which is Ext. P 207 reads as under:-
EXT. P.207
G
From
M.R. Rajsekharan,
Election agent of
Shri MR Gopalakrishnan,
104, Kayaip.kulam
H
Assembly Constituency.
M.R. GO.PALAKRISHNAN v. T. PRABHAKARAN [FAIZAN UDDIN, J.]
473
To
A
The Returning Officer,
104, Kayamkulam
Assembly Constituency.
Respected Sir,
It is understood to me that there are irregularities in the counting of
votes, which began from 8-15, today morning, of many polling station of
104, Kayamkulam Assembly Constituency and also I have doubt about the
counting of Postal Ballots and also votes are not telling with the records.
B
In addition to this that many number of votes have been unauthorisedly C
and illegally declared invalid and so that entire votes of this station may be
subjected to recount, otherwise it will cause irreparable loss to me and to
my candidate.
Hence, it is requested that the result of this station may be announced
only after the recount is conducted.
D
10.35 PM
Harri pad,
16.6.1991.
Yours faithfully,
Sd/-
M.R. RAJASEKHARAN
E
Plain reading of this application will go to show that it is written in
most vague terms without specifying any irregularities whatsoever which
according to the petitioner/appellant were committed during the course of F
counting.
14. The appellant M.R. Gopalakrishnan who appeared as PW 100
himself made an application Ext. P 211 on 19.6.91 three days after the
declaration of result to the Chief Electoral Officer, Trivendrum for recount G
which is reproduced, hereunder:-
EXT. P.211
From:
M.R. Gopalakrishnan,
H
474
A
To
SUPREME COURT REPORTS
Candidate 104, Kayamkulam
Assembly Constituency,
KA YAMKULAM.
[1994] SUPP. 6 S.C.R
B
The Chief Electoral Officer,
1991 Assembly Elections,
TRIVANDRUM.
SUB:
Rejection of application for re-counting and re-verification of
Postal Ballot Papers. Request for recounting and reC
verificat~on.
Sir,
I was a candidate for the Assembly Election in 104 Kayamkulam
Constituency. My opposite candidate Shri 'Thacl)adi Prabhakaran was
D
declared for 33 votes by the Returning Officer.
Knowing that there was irregularities and illegality in the matter of
counting, my chief Agent has placed an application for recounting.
The Returning Officer has declared hundreds of invalid votes as valid
E
in favour of Shri Thachady Prabhakaran. My valid votes have been
declared as invalid.
About 300 postal ballot papers have been declared by the Returning
Officer as invalid votes.
F
For the reasons stated above, I request you to be good enough to take
urgent steps to re-count the ballots as soon as possible.
Yours faithfully,
Sd/-
G
(M.R. Gopalankrishnan)
Kayamkulam,
19.6.1991.
H
Copy to: Chief Election Commission, New Delhi.
M.R. GOPALAKRISHNAN v. T. PRABHAKARAN [FAIZAN UDDIN, J.]
475
A cursory, look at this application will go to show that no specific A
allegation with regard to any particular irregularity in the counting was
made but vague application for recounting was submitted. Not only this but
M.R. Rajasekharan, PW 98 the election agent of the appellant again made
an application on 21.6.91 to the Chief Electoral Officer, Thiruvanthapuram
requesting for recount of the votes of 104, Kayamkulam Assembly
Constituency. The said application Ext P.208 is reproduced herein"below.
B
From:
To
M.R. RAJASEKHARAN,
Election Agent of
M.R. Gopalakrishnan,
Kayamkulam.
The Chief Electoral Officer,
State of Kerala,
Thiruvananthapuram.
SUB: Assembly Election - Counting of Votes of 104 Kayamkulam
Assembly Constituency at Haripad - Irregularities recounting
and Verification request regarding
Sir,
c
D
E
I was Election Agent of Shri M.R. Gopalakrishnan, a candidate of 104
Kayamkulam Assembly Constituency. The counting of the votes of the
constituency was held at Govt. H.S. for Girls, Haripad on 16-6-1991. After
the counting of votes, having doubts and having noticed specific F
irregularities in the counting, before the declaration of the results I gave in
writing a request to the Returning Officer for recounting of votes on
reasonable grounds. But, to the surprise of all present, the Returning
Officer, unilaterally declared Shri Thachady Prabhakaran elected by 33
votes, under out vehement protest. Against this arbitrary decision of the G
RetQrning Officer the candidate filed a petition to the District Collector
Alleppey.
The immediate rejection of our demand for recounting of votes was
illegal and against rules. Our demand for recounting was based on the
following grounds :-
H
476
SUPREME COURT REPORTS
[1994) SUPP.