{"id":253742,"date":"2001-01-31T00:00:00","date_gmt":"2001-01-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-s-achuthanandan-vs-p-j-francis-anr-on-31-january-2001"},"modified":"2016-02-27T12:29:01","modified_gmt":"2016-02-27T06:59:01","slug":"v-s-achuthanandan-vs-p-j-francis-anr-on-31-january-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-s-achuthanandan-vs-p-j-francis-anr-on-31-january-2001","title":{"rendered":"V.S. Achuthanandan vs P.J. Francis & Anr on 31 January, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
V.S. Achuthanandan vs P.J. Francis & Anr on 31 January, 2001<\/div>\n
Author: R Lahoti<\/div>\n
Bench: R.C.Lahoti, S.V.Patil<\/div>\n
           CASE NO.:\nAppeal (civil) 4681  of  2000\n\n\n\nPETITIONER:\nV.S.  ACHUTHANANDAN\n\n\tVs.\n\nRESPONDENT:\nP.J.  FRANCIS & ANR.\n\nDATE OF JUDGMENT:\t31\/01\/2001\n\nBENCH:\nR.C.Lahoti, S.V.Patil\n\n\n\n\nJUDGMENT:\n<\/pre>\n
L…..I………T…….T…….T…….T…….T…….T..J<\/p>\n
      R.C.  Lahoti, J.\n<\/p>\n
      The  general  election to the Legislative Assembly  of
\nthe  State  of\tKerala was held on 27th\t April,\t 1996.\t The
\nappellant,  the\t respondent  No.1 and the  respondent  No.2,
\ncontested   election  from   No.99  Mararikulam\t Legislative
\nAssembly  Constituency (Alappuzha District).  Counting\ttook
\nplace  on  8.5.1996  and  continued upto the  wee  hours  of
\n9.5.1996.    The  respondent  No.1   was  declared   elected
\ndefeating  his nearest rival candidate, the petitioner, by a
\nmargin\tof  1965  votes.  The distribution of votes  was  as
\nunder:-\t Total\tnumber of electors 1,68,873 Total number  of
\nvalid  votes polled 1,38,452 Total number of rejected  votes
\n2,107 Total number of tendered votes 14<\/p>\n
      Votes secured by candidates :- 1.\t V.S.  Achuthanandan
\n(appellant)  66337 2.  Peter Markose (respondent No.2)\t3813\n<\/p>\n
3.  P.J.  Francis (respondent No.1) 68302<\/p>\n
      On  22.6.1996 the appellant filed an election petition
\nbefore\tthe  High  Court  of Kerala  putting  in  issue\t the
\nelection  of  the respondent No.1 mainly on  three  grounds,
\nnamely,\t (i)  corrupt practice committed in the interest  of
\nreturned  candidate  by his agents, election agents  or\t the
\nreturned  candidate himself;  (ii) the improper reception of
\nvotes  which  were void, and (iii) non compliance  with\t the
\nprovisions  of\tthe Constitution and the provisions  of\t the
\nRepresentation of the People Act<\/a>, 1951.\t It was also alleged
\nthat  the  result of the election, in so far as it  concerns
\nthe  returned candidate, was materially affected on  account
\nof  the grounds alleged in the petition, as abovesaid.\t The
\nreliefs\t sought\t for  were  __\tdeclaring  the\telection  of
\nrespondent  No.1  as  void and declaring  the  appellant  as
\nelected.\n<\/p>\n
      All  the material averments made in the petition\twere
\ndenied\tin  the written statement filed by  respondent\tNo.1
\nwherein preliminary objections to the maintainability of the
\npetition  were also raised.  The learned designated election
\nJudge heard the parties on the preliminary objections.\tVide
\norder  dated 8.1.1997, the High Court directed the  election
\npetition  to be dismissed on the ground that the allegations
\nin  the\t petition  did\tnot   disclose\ta  cause  of  action
\nwarranting  trial of the election petition and also that the
\naverments  made in the petition were not sufficient to grant
\nthe  relief  of recount of ballots.  This order was  put  in
\nissue by the appellant in Civil Appeal No.1808 of 1997 filed
\nbefore\tthis  court which was allowed on 22nd  March,  1999.
\nThe order of the High Court dated 8.1.1997 was set aside and
\nthe  case  was remitted back to the High Court for trial  of
\nthe  same on merits and affording the parties an opportunity
\nof  leading  evidence.\t In  its  order,  reported  as\tV.S.
\nAchuthanandan  Vs.  P.J.  Francis & Anr., (1999) 3 SCC\t737,
\nthis court held that the election petition was not liable to
\nbe  rejected  under Section 83<\/a> of the Representation of\t the
\nPeople Act, 1951 read with Order 7 Rule 11(a) of the Code of
\nCivil  Procedure.  This court further held:- Similarly, the
\nlearned\t trial\tJudge  was not justified  in  rejecting\t the
\nelection   petition   without\t affording   the   appellant
\nopportunity  to place on record the circumstances justifying
\nthe re-count as prayed for by him.  It is true that on vague
\nand ambiguous evidence no court can direct re-count.  But it
\nis equally true that the doors of justice cannot be shut for
\na   person  seeking  re-count\twithout\t affording  him\t  an
\nopportunity  of\t proving  the\tcircumstances  justifying  a
\nre-count.   In his petition the appellant had given  details
\nof  the alleged illegalities and irregularities committed by
\nRespondent 1 which according to him justified the holding of
\na  re-count.   The  learned  trial Judge  relied  upon\tsome
\njudgments  where  re-count was not allowed after  trial\t and
\nwrongly\t dismissed  the\t election   petition  filed  by\t the
\nappellant   without  affording\thim   the   opportunity\t  to
\nsubstantiate  the  allegations\tmade in the petition  or  to
\nbring  on record the evidences justifying a re-count.  It is
\na  settled position of law that the court trying an election
\npetition  can direct inspection and re-count of votes if the
\nmaterial  facts\t and particulars are pleaded and proved\t for
\ndirecting  such\t re-count  in the interest of  justice.\t  In
\ndoing so, the provisions of Section 94<\/a> of the Act have to be
\nkept  in  mind\tand  given   due  weight  before   directing
\ninspection and re-count.\n<\/p>\n
      xxx xxx xxx xxx Xxx xxx xxx xxx<\/p>\n
      Without  commenting upon the merits of the case,\tlest
\nit may prejudice the rights of the parties, we feel that the
\ntrial  Judge  was  not justified in rejecting  the  election
\npetition   at  the  initial   stage  without  affording\t the
\nappellant   an\topportunity  to\t  prove\t the  existence\t  of
\ncircumstances  prima  facie  justifying\t  the  existence  of
\ngrounds requiring re- count.\n<\/p>\n
      [underlining by us]<\/p>\n
      On remand, the issues framed by the learned designated
\nelection  Judge\t were  put  up for  trial.   The  petitioner
\nexamined  13  witnesses including himself and  exhibited  35
\ndocuments.   The  respondent  No.1   examined  2   witnesses
\nincluding  himself and exhibited 6 documents.  After hearing
\nthe  learned counsel for the parties once again the  learned
\ndesignated election Judge has directed the election petition
\nto be dismissed forming an opinion that no case for re-count
\nof the ballot papers was made out.  The aggrieved petitioner
\nhas   filed   this  appeal  under   Section  116A<\/a>   of\t the
\nRepresentation of the People Act, 1951 (hereinafter RPA, for
\nshort).\n<\/p>\n
      At the hearing, Dr.  A.M.\t Singhvi, the learned senior
\ncounsel\t for  the appellant submitted, while  attacking\t the
\njudgment of the High Court, that in order to make out a case
\nfor  re-count a prima facie case was required to be  shown
\nleaving the issue as to material affect on the result of the
\nelection  to  be determined when the result of the  re-count
\nwas available but the High Court has committed a grave error
\nof  law in insisting on the election petitioner making out a
\ngood  case  for re-count.  In other words, the High  Court
\nhas  insisted  on  demanding a higher degree  of  proof\t for
\nclaiming  a re-count, which error has resulted in  vitiating
\nthe  judgment  of the High Court.  In the submission of\t the
\nlearned senior counsel for the appellant the following three
\ncircumstances  were  shown  to\texist  prima  facie  by\t the
\nelection  petitioner  on the evidence adduced by  him:-\t (i)
\nthat 2100 excess ballot papers were got printed and retained
\nby  Shri Ayyappan Pillai, the Taluk Tehsildar, who was\talso
\nthe  Election Registration Officer and was shown to have  an
\naffiliation  or\t intimacy with the political party to  which
\nthe  respondent\t No.1  belongs,\t raising a  high  degree  of
\nprobability  of\t such  excess\tballot\tpapers\thaving\tbeen
\nmisutilised  to the advantage of the respondent No.1;\t(ii)
\nthat  on  opening  the ballot boxes it was  found  that\t the
\nnumber of ballots polled were in excess of the ballot papers
\nissued\tto different polling stations __ a strong pointer to
\nthe  fact of gross irregularity having been committed at the
\npolling;   and\t(iii) that a number of ballot papers  issued
\nand used for election of parliamentary candidates were found
\nto  have  been\tmixed up with  legislative  assembly  ballot
\npapers.\t In the submission of the learned senior counsel for
\nthe  election petitioner\/appellant, the abovesaid facts made
\nout  a sufficient ground for directing a re-count of  ballot
\npapers\tand if only a re-count would have been directed\t the
\nelection  petitioner\/appellant would have been found to have
\nsecured\t the  highest number of votes and should  have\tbeen
\ndeclared  elected.   The learned counsel for the  respondent
\nNo.1 has disputed the correctness of the submissions so made
\nand  submitted,\t supporting the judgment under appeal,\tthat
\nthe  appellant was not entitled to any relief and the appeal
\nwas  liable  to be dismissed.  We will examine the worth  of
\nthe  contention\t so advanced by testing if any of the  three
\ncircumstances  have been shown to the satisfaction of  court
\nto  so exist as to enable a finding of prima facie case\t for
\nordering re-count being recorded.\n<\/p>\n
      Circumstance  (i) :- It is not disputed that the total
\nnumber\tof  voters in the constituency was 1,68,873.   There
\nwere  in  all  194 polling stations.  The actual  number  of
\nballot\tpapers\tdistributed was 1,69,900, though  the  total
\nnumber\tof  ballot papers got printed was 1,73,000.  It\t was
\nalso  not  disputed before this court that on  the  evidence
\nadduced\t by the parties it was proved that the ballot papers
\nwere  got  printed  under  the\tinstructions  of  the  Chief
\nElectoral  Officer  who was the District Collector and\tShri
\nAyyappan  Pillai,  P.W.11 had no role to play either in\t the
\nprinting  of  the ballot papers or in appointing  the  total
\nnumber\tof  ballot  papers  to be  printed.   Any  rules  or
\ninstructions  relevant to fixing the number of ballot papers
\nto  be printed for any constituency were neither brought  to
\nthe  notice  of\t the learned designated election  Judge\t nor
\nplaced\tbefore this court.  We have, therefore, no reason to
\ndisbelieve  the statement of Ayyappan Pillai, P.W.11, as has
\nbeen done by the learned designated election Judge that some
\nnumber of excess ballot papers are required to be printed as
\nsome  ballot  papers  may be defective and may\thave  to  be
\nrejected  and provision has to be made for unforeseen myriad
\ncontingencies by keeping a few ballot papers in reserve.  In
\nfact,  the learned senior counsel for the appellant did\t not
\nraise  any  serious grievance about printing  of  marginally
\nexcessive ballot papers than required.\tThe evidence adduced
\nby  the parties goes to show that 2100 excess ballot  papers
\nwere  kept in the custody of the Taluk Tehsildar.   1,69,900
\nballot\tpapers\twere  issued to\t different  polling  station
\nofficers  by rounding up the odd number of exact requirement
\nof  any polling station to the next higher ten.\t 1000 ballot
\npapers\tissued earlier to P.W.2 Mini Antony, who was  Deputy
\nCollector   (Revenue  Recovery),   Alappuzha  and  Returning
\nOfficer\t  for  Mararikulam   Legislative  Assembly  Election
\nConstituency for being used as postal ballots, were found to
\nbe  deficient  and therefore another 200 ballot papers\twere
\nissued\tto  her.   Ayyappan Pillai, P.W.11  was\t transferred
\nafter  the  elections  were  over and  subsequently  he\t has
\nretired\t also.\t At the time of transfer he handed over\t the
\nenvelope  containing  1900  unused   ballot  papers  to\t his
\nsuccessor  R.D.\t  Subrahmanyam,\t R.W.1, while  handing\tover
\ncharge of Tehsil.  The envelope then remained in his custody
\nand he produced the same in the High Court.  He deposed that
\nthe envelope which was being produced by him before the High
\nCourt was sealed and was in the same position as it was when
\nhe  had\t received the envelope in his charge.  The  envelope
\nbore  a\t superscription\t certifying   the  contents  of\t the
\nenvelope  to be ballot papers 2100 in number bearing  serial
\nnumbers\t 169901\t to 172000.  Just below, it was\t noted\tthat
\nballot papers serial numbers 171801 to 172000 were issued to
\nthe  Returning\tOfficer, Mararikulam and the balance in\t the
\nenvelope was 1900.\n<\/p>\n
      The  envelope  of\t unused ballot\tpapers\thaving\tbeen
\nproduced  in  the  court, the opportunity should  have\tbeen
\nutilised  by the election petitioner in making a request  to
\nthe  learned designated election Judge to open the  envelope
\nin  the\t presence of the witness producing the same  in\t the
\nCourt  or  at  any time thereafter so as to  verify  if\t the
\nenvelope  did  contain the ballot papers in conformity\twith
\nthe  superscribed endorsement appearing on the envelope\t and
\nthe  cat would have been out of the bag if that be so.\t The
\nlearned\t designated election Judge has noted in the impugned
\njudgment  that\tthe  election- petitioner did not  seek\t for
\nopening\t and  examining the contents of the envelope  marked
\nExhibit-XI.  After the hearing was concluded, the respondent
\nNo.1  moved  an\t application  praying  for  opening  of\t the
\nenvelope   and\texamining  the\t contents   thereof.\tThis
\napplication  filed by the respondent No.1 was objected to by
\nthe election-petitioner submitting that the envelope was not
\nproduced  from proper custody and therefore it was not to be
\nopened.\t  We  fail  to\tappreciate the stand  taken  by\t the
\nelection petitioner.  The conduct of the parties in the High
\nCourt  clearly suggests that the election petitioner himself
\nentertained  a\tdoubt  about the contents  of  the  envelope
\nExhibit-XI and apprehended that the envelope, if opened, the
\ncontents  thereof would falsify his own plea.  There was  no
\nsubstance  in  the plea of the election petitioner that\t the
\nenvelope  was  not produced from a proper custody.   In\t our
\nopinion,  on  the  evidence adduced, seen in  the  light  of
\nconduct\t of the election petitioner and the respondent No.1,
\nno  fault  can be found with the finding arrived at  by\t the
\nlearned\t designated election Judge that neither the printing
\nof  the ballot papers in excess of the number of  registered
\nvoters\twas  contrary to any statutory provisions,  nor\t the
\nexcess ballot papers were misused as alleged in the election
\npetition.  It is true that during cross-examination Ayyappan
\nPillai,\t P.W.11,  candidly admitted that he was a member  of
\nKerala\tGazetted Officers Union, which was a union sponsored
\nby  Congress(I),  the  political  party\t which\thad  set  up
\nrespondent  No.1 as candidate.\tMerely from this  admission,
\nwe  cannot infer that the officer was helping the respondent
\nNo.1  by misutilising excess ballot papers to the  advantage
\nof  respondent\tNo.1.\tThus no case of\t any  illegality  or
\nirregularity  much  less the provisions of the RPA or  Rules
\nmade  thereunder  having  been\tbreached  was  made  out  by
\nreference to circumstance (i).\n<\/p>\n
      Circumstance  (ii)  :-  The  petitioner  had  counting
\nagents\tappointed  when\t the ballot boxes  were\t opened\t and
\nsubjected  to  counting.   At the end of  the  counting\t the
\nresult\tof voting at polling stations, as specified in\tRule
\n56  of\tthe  Conduct of Election  Rules,  1951\t(hereinafter
\nRules,\tfor  short) was recorded polling station  wise\tin
\nForm  16 and the final result sheet was prepared in Form  20
\nin  accordance with Rule 56(7).\t Copies of such Form 16\t and
\nfinal  result  sheets in Form 20 were made available to\t the
\ncounting  agents  for the contesting candidates.   Based  on
\nsuch  Forms  16\t and  Form 20 the  petitioner  compiled\t the
\nstatement  of the ballot papers issued by Presiding Officers
\nat various polling stations and the total votes found in the
\nballot\tboxes and set out the compilation in a tabular\tform
\nin  sub-para  (c) of Para 11 of the election petition.\t The
\ntable  compiled\t by the petitioner shows that in almost\t all
\nthe polling stations (excepting 5) the number of total votes
\nfound  in  the\tballot boxes fell short by 1 or 2  than\t the
\nnumber\tof ballots issued.  In polling station Nos.2 and 30,
\nthe shortage was of 6 and 10 votes respectively.  In polling
\nstation\t Nos.119 and 120, 2 votes each were found in excess.
\nOn these facts, the learned senior counsel for the appellant
\nvery  fairly  submitted that nothing much turned out  in  as
\nmuch  as  the possibility of a voter or two not casting\t the
\nballot\tpaper  issued to them and taking it away  or  having
\nwasted\tthe  same could not be ruled out.  The excess  of  2
\nballot papers each in polling station Nos.  119 and 120 also
\nwas  not  very material.  However, according to the  learned
\nsenior\tcounsel, it was the excess of 99 ballot papers found
\nin  the ballot box referable to polling station No.79  which
\nwas  material  and was a positive indicator  of\t unauthentic
\nballot papers having been used and cast in the election.\n<\/p>\n
      We  have\tvery  minutely\texamined this  plea  of\t the
\nlearned\t senior\t counsel for the appellant and we find\tthat
\nthe submission is based on factually wrong premises.  In the
\nfinal  result  sheet (Form 20) figures referable to  polling
\nstation No.79 appear at page 118 of the Paper Book (Vol.II).
\nIt  appears  that  the number of total votes  found  in\t the
\nballot boxes of polling station No.79 was typed as 828 + 1
\ntendered  vote.\t  However,  this figure\t 828  contained\t a
\ntyping\terror  and  therefore  the  first  digit  of  8\t was
\ncorrected by hand to read as 7 making the figure 728.  The
\ncorrection  so made was initialled by the Returning Officer.
\nThis  final result sheet (Form-20) runs into 13 pages,\teach
\npage  containing the number of ballots relating to 10 to  13
\npolling stations approximately and totalled up at the bottom
\nof every page.\tThe total of preceding page has been carried
\nforward to the next page and then added to the total of that
\npage.\tThe  figure of 728 being the total number  of  votes
\nfound  in the ballot box referable to polling station  No.79
\ntallies with and fits in with the total of that page and the
\ngrand  total  at the end.  It is pertinent to note that\t the
\nfigures\t of total on individual pages or the grand total  at
\nthe  end  does not bear any correction.\t It  is,  therefore,
\nvery  clear that the total votes found in the ballot box  of
\npolling\t station  No.79 was 728 and not 828.  In  the  table
\ncontained  in  para  11(c)  of\tthe  election  petition\t the
\npetitioner has taken the figures of the votes issued and the
\nvotes  found in the ballot box referable to polling  station
\nNo.79  as  729 and 828 respectively.  The latter  figure  is
\nincorrect.   The very foundation of the plea that the number
\nof  votes  found in that ballot box exceeded the  number  of
\nvotes  issued  at the polling station falls to ground.\t The
\nfactum of two votes found in excess each in the ballot boxes
\nof  polling  station Nos.  119 and 120 is  immaterial.\t The
\nvariation  is so marginal as not to have any material effect
\non the result of the election.\n<\/p>\n
      Circumstance  (iii)  :-  The record  of  ballot  paper
\naccount\t kept  in Form 16 [referable to Rules 45, 56(7)\t and
\n56A(7)] of the Conduct of Election Rules was summoned by the
\nelection petitioner and produced in the court by P.W.2, Mini
\nAntony,\t the Returning Officer.\t It is an admitted fact that
\nthe  elections of the legislative assembly and parliamentary
\nconstituency  in  Alappuzha District were held on  the\tsame
\nday.   Voting of the two was conducted simultaneously.\t The
\nsame  ballot  box was used for casting ballots referable  to
\nlegislative  assembly and parliament both.  However, at\t the
\ntime  of  counting, on opening the ballot boxes, the  ballot
\npapers\twere separated and separate bundles of ballot papers
\nrelating  to  legislative assembly and parliament were\tmade
\nand  then counted.  Before the High Court when the bundle of
\nForms 16 of legislative assembly election was opened, it was
\nfound  to  contain  a  few Form 16 (about  four\t in  number)
\nreferable  to  parliamentary election placed in\t the  bundle
\namidst Forms 16 referable to legislative assembly elections.
\nSuch forms have been produced at pages 102, 104, 107 and 109
\nof  the Paper Book (Vol.II).  The High Court has found\tthat
\nwhen  the  election  process was over and the  records\twere
\nbeing  sorted  out, arranged and consigned to safe  custody,
\nsome  Forms 16 referable to parliamentary election got mixed
\nup  with  the  Forms 16 referable  to  legislative  assembly
\nelection  and that it was a bonafide mistake.  Such  mistake
\ncould  have  been  positively identified  by  summoning\t the
\nrecord\tof  Form  16 referable\tto  parliamentary  election.
\nHowever,   the\trecord\tof   election  papers  referable  to
\nparliamentary  constituency of Alappuzha District was weeded
\nout  and destroyed after the lapse of 6 months from the date
\nof  election  as no election petition was filed\t challenging
\nthe   election\tof  parliamentary   seat  and  the  election
\npetitioner  did not make a prayer for summoning that  record
\nbefore the expiry of the said period of 6 months.\n<\/p>\n
      There  are  additional reasons also as to why we\tfind
\nthis ground to be without any merit and substance.  Firstly,
\nthe four Form 16 referable to the parliamentary election and
\nfound  contained  in  the  bundle of Form  16  referable  to
\nlegislative assembly election in question contain the serial
\nnumbers of the ballot papers and those serial numbers are of
\nthe ballot papers used in the parliamentary election and not
\nof  the\t legislative  assembly\t election.   Secondly,\t the
\npossibility of ballot papers cast for parliamentary election
\nhaving\tbeen  taken into account and included in the  ballot
\npapers of legislative assembly election is very very remote,
\nvirtually  nil,\t as  the  two  ballot  papers  would  be  of
\ndifferent  size,  with\tnames of  different  candidates\t and
\ndifferent  election symbols.  Even if a single ballot  paper
\nwould  have  been  wrongly  included at\t the  counting,\t the
\ncounting  agent\t of any of the political parties would\thave
\ntaken  a  strong  exception  to it then and  there.   It  is
\npertinent  to  note  that  it is also not the  case  of\t the
\npetitioner  in\tthe election petition that the counting\t was
\nvitiated   on\taccount\t of   ballot  papers  referable\t  to
\nparliamentary election having been included in the bundle of
\nballot\tpapers referable to legislative assembly election at
\nthe  time  of counting.\t It appears that when the bundle  of
\nForm-16\t was  opened in the court the mistake of about\tfour
\nForm  16  referable  to parliamentary election\thaving\tbeen
\nplaced\tin  the bundle of Form 16 referable  to\t legislative
\nassembly  election  came  to  the   fore  and  the  election
\npetitioner sprang up to cash on such discovery.\t The mistake
\nappears\t to  be\t bonafide  and\tinadvertent.   The  election
\npetitioner  cannot  be\tpermitted  to make out\ta  case\t for
\nre-count  of ballot papers on a ground for which there is no
\nfoundation laid by him, not even a whisper, in pleadings and
\nwhich  does  not appear to have a ring of truth, even  prima
\nfacie.\n<\/p>\n
      That  apart admittedly a prayer for re-count in  terms
\nof Rule 63(2) of the Conduct of Election Rules, 1951 was not
\nmade  by  or on behalf of any of the  contesting  candidates
\nincluding  the petitioner before the Returning Officer which
\nthe  election petitioner would ordinarily have made if there
\nwas  any  truth\t in  any  of  the  pleas  canvassed  by\t the
\npetitioner before the High Court or this court.\n<\/p>\n
      The  power vesting in the court seized of an  election
\ndispute\t to order for inspection and re-count of the  ballot
\npapers\thas been subject matter of several decisions of this
\nCourt which have by authoritative exposition settled the law
\nthereon.  Without burdening this judgment with the series of
\navailable decisions, it would suffice to mention a few only,
\nnamely,\t Constitution  Bench  decision in  Ram\tSewak  Yadav
\nVs.Hussain Kamil Kidwai and Ors.  – AIR 1964 SC 1249, three-
\nJudges\tbench  decision\t in  Suresh Prasad  Yadav  Vs.\t Jai
\nPrakash\t Mishra & Ors.\t– AIR 1975 SC 376, Bhabhi Vs.\tSheo
\nGovind\tand Ors.  – AIR 1975 SC 2117 which refers to all the
\ndecisions  available till then and a recent decision in M.R.
\nGopalkrishnan  Vs.   Thachady  Prabhakaran &  Ors.   –\t1995
\nSuppl.\t (2)  SCC 101 to which one of us (Dr.  A.S.   Anand,
\nJ.,  as\t his Lordship then was) is a party.  We may  briefly
\nrestate the principles as under:-\n<\/p>\n
      1.   The secrecy of the ballot is sacrosanct and shall
\nnot  be\t permitted  to be violated lightly  and\t merely\t for
\nasking\tor on vague and indefinite allegations or  averments
\nof  general  nature.   At the same time purity\tof  election
\nprocess\t has  to be preserved and therefore  inspection\t and
\nre-count  shall\t be  permitted\tbut only  on  a\t case  being
\nproperly made out in that regard.\n<\/p>\n
      2.   A  petition\tseeking inspection and\tre-count  of
\nballot-papers  must  contain averments adequate,  clear\t and
\nspecific  making  out  a  case\tof  improper  acceptance  or
\nrejection   of\tvotes  or   non-compliance  with   statutory
\nprovisions  in counting.  Vague or general allegations\tthat
\nvalid  votes were improperly rejected, or invalid votes were
\nimproperly accepted would not serve the purpose.\n<\/p>\n
      3.   The\tscheme of the rules prescribed in Part V  of
\nthe  Conduct  of Election Rules, 1961 emphasises  the  point
\nthat  the  election petitioner who is a defeated  candidate,
\nhas  ample  opportunity to examine the voting papers  before
\nthey  are counted, and in case the objections raised by\t him
\nor  his\t election agent have been improperly over-ruled,  he
\nknows  precisely the nature of the objections raised by\t him
\nand the voting papers to which those objections related.  It
\nis  in the light of this background that S.83 (1) of the Act
\nhas  to\t be applied to the petitions made for inspection  of
\nballot\tboxes.\t Such an application must contain a  concise
\nstatement of the material facts.\n<\/p>\n
      4.   The election-petitioner must produce\t trustworthy
\nmaterial  in support of the allegations made for a  re-count
\nenabling the Court to record a satisfaction of a prima-facie
\ncase  having  been  made out for grant of the  prayer.\t The
\nCourt  must come to the conclusion that it was necessary and
\nimperative  to\tgrant the prayer for inspection to  do\tfull
\njustice\t between  the  parties\tso   as\t to  completely\t and
\neffectually adjudicate upon the dispute.\n<\/p>\n
      5.   The power to direct inspection and re-count shall
\nnot  be\t exercised  by\tthe Court to show  indulgence  to  a
\npetitioner who was indulging in a roving enquiry with a view
\nto fish out material for declaring the election to be void.\n<\/p>\n
      6.   By  mere  production\t of   the  sealed  boxes  of
\nballot-papers or the documents forming part of record of the
\nelection  proceedings before the Court the ballot papers  do
\nnot  become  a\tpart of the court record and  they  are\t not
\nliable\tto  be\tinspected unless the court is  satisfied  in
\naccordance  with the principles stated hereinabove to direct
\nthe inspection and re-count.\n<\/p>\n
      7.   In  the peculiar facts of a given case the  court
\nmay exercise its power to permit a sample inspection to lend
\nfurther\t assurance  to the prima-facie satisfaction  of\t the
\ncourt regarding the truth of the allegations made in support
\nof  a prayer for re-count and not for the purpose of fishing
\nout materials.\n<\/p>\n
      Once  a  re-count\t is validly ordered  the  statistics
\nrevealed  by the re-count shall be available to be used\t for
\ndeciding  the election dispute.\t However, if the validity of
\nan  order  passed  by High Court  permitting  inspection  of
\nballot\tpapers\tand directing a recount is brought in  issue
\nbefore\tthe  Supreme Court, the facts revealed\tby  re-count
\ncannot\tbe relied upon by the election-petitioner to support
\nthe  prayer  and  sustain  the order  for  re-count  if\t the
\npleadings  and\tmaterial  available on\trecord\tanterior  to
\nactual\tre-count  did  not justify grant of the\t prayer\t for
\ninspection and re-count.\n<\/p>\n
      On  the facts as set out hereinabove we are clearly of
\nthe  opinion that the averments made in the petition and the
\nmaterial  brought  on record by the election-petitioner\t did
\nnot  make  out\ta  case for re-count.\tThe  petitioner\t has
\nindulged  into\ta roving enquiry and has tried to  fish\t out
\nmaterials  in  the  hope that the re-count  if\tallowed\t may
\nprobably  twist the balance of votes in his favour which  in
\nthe  facts and circmstances of the case is nothing beyond  a
\nwishful thinking of the petitioner.\n<\/p>\n
      We  also\tdo  not\t agree with the\t submission  of\t the
\nlearned senior counsel for the appellant that this court had
\ndirected the High Court to permit an inspection and re-count
\nif  a prima facie case was made out for such relief but\t the
\nHigh  Court  has  unreasonably insisted on  availability  of
\n‘good  grounds\tbefore allowing the relief of recount.\t In
\nSuresh\tPrasad\tYadavs case (supra) the law stated by  this
\nCourt  is that the order for recount of ballot papers  would
\nbe  justified  if,  inter alia, on the\tbasis  of  evidence
\nadduced\t  the\trequisite  allegations\t are   prima   facie
\nestablished,  affording\t a  good ground for  believing\tthat
\nthere  has  been  a mistake in counting. This  answers\tthe
\nsubmission  which is more a play on jugglery of words.\tWhat
\nwas needed was proof of prima facie case of availability of
\ngood  grounds wherein the election petitioner\/appellant has
\nfailed.\n<\/p>\n
      For  the foregoing reasons we find ourselves  entirely
\nin  agreement with the view taken by the learned  designated
\nelection Judge declining the prayer for re-count and finding
\nthe  election  petitioner not entitled to such relief.\t The
\nappeal is devoid of any merit and is liable to be dismissed.
\nIt is dismissed accordingly, though, without any order as to
\nthe costs in the facts and circumstances of the case.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India V.S. Achuthanandan vs P.J. Francis & Anr on 31 January, 2001 Author: R Lahoti Bench: R.C.Lahoti, S.V.Patil CASE NO.: Appeal (civil) 4681 of 2000 PETITIONER: V.S. ACHUTHANANDAN Vs. RESPONDENT: P.J. FRANCIS & ANR. DATE OF JUDGMENT: 31\/01\/2001 BENCH: R.C.Lahoti, S.V.Patil JUDGMENT: L…..I………T…….T…….T…….T…….T…….T..J R.C. Lahoti, J. The general election to the Legislative […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-253742","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nV.S. Achuthanandan vs P.J. 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