JUDGMENT : Shah, J. 1. On February 22, 1967, the first respondent was declared elected to the Rajasthan State Assembly. The appellant who was a candidate at the election filed a petition for setting aside the election of the first respondent on the ground that the result of the election insofar as it concerned the first respondent had been materially affected by improper reception of votes. It was the case of the appellant that at the counting a large number of doubtful ballot papers sorted out and wrapped in packets of 50 votes and reserved by the counting supervisors and counting assistants for closer scrutiny, when passed on to the Returning Officer were mixed up with packets of sorted out valid ballot papers in favour of the first respondent and the doubtful ballot papers were on that account wrongly included in the valid ballot papers for the first respondent and were counted in his favour. It was further averred that 1500 doubtful ballot papers sorted out for rejection had been wrongly counted as valid in favour of the first respondent, and that in six polling stations, full particulars whereof were specified in Schedule 2 annexed to the petition, ballot papers which were valid and should have been counted as valid for the appellant were wrongly rejected. The appellant in his election petition submitted a schedule setting out a list of 22 polling stations in which a considerable disparity was disclosed between the number of votes cast in favour of the first respondent as announced by the Returning Officer and the number of ballot papers on the counting table with the counting supervisors. In another schedule he set out the particulars of the ballot papers wrongly rejected as invalid and which he claimed should have been counted as valid in his favour. 2. In another schedule he set out the particulars of the ballot papers wrongly rejected as invalid and which he claimed should have been counted as valid in his favour. 2. The first respondent denied the allegations made in the petition and submitted that a large number of valid votes cast in favour of the first respondent were rejected by the Returning Officer "on the flimsy grounds that they bore ink impressions other than the `X' marks or that they contained an additional `X' mark or that the cross marks over them were faint', that if a recount and re-scrutiny be ordered by the Court he was confident that he will be entitled to have those votes counted for him, and that about 500 ballot papers (details whereof were submitted in Schedule B to his written statement) which were counted as valid votes for the appellant should also be excluded in the count. 3. One extraordinary feature of the trial of the election petition was that the Returning Officer was impleaded as a party-respondent to the petition, and he filed a written statement denying the allegations made by the appellant that mistakes were committed in counting doubtful or rejected ballot papers in favour of the first respondent. He adopted a contentious attitude and examined himself as a witness. He submitted an application on August 7, 1967, praying for an order recalling certain witnesses who were earlier examined before the Court, and claimed an opportunity to rebut the case by leading evidence relating to tampering with the ballot papers. He claimed also to file a rejoinder to the reply filed by the first respondent in respect of the allegations which had been made against him about the defective counting of votes. 4. The High Court dismissed the application holding that the appellant failed to make out the case that the bundles of doubtful ballot papers were mixed up with the bundles of valid votes of the first respondent and were counted in his favour, and also that one bundle of 50 valid votes of the appellant was counted for the first respondent. The appellant has appealed against the order. 5. It is necessary in the first instance to refer to certain applications which were submitted before the Returning Officer protesting against irregularities in the counting of votes. The appellant has appealed against the order. 5. It is necessary in the first instance to refer to certain applications which were submitted before the Returning Officer protesting against irregularities in the counting of votes. The appellant's election agent G.D. Ajmera submitted an application on February 22, 1967, before the Returning Officer stating that "the system of counting and checking adopted by the supervisors was defective and mistakes were apprehended", that "the number of rejected votes were announced along with those secured by the two candidates booth wise, but it was feared that either the checking parties were committing mistakes deliberately or were giving wrong figures inadvertently, and according to the information given by the counting agents on the basis of rough calculations made by them, the number of valid votes secured and rejected were different from those announced", and he prayed that all the packets and also the valid votes cast in the 19 named polling stations and generally in respect of all the polling stations be checked before the final result was announced so that there may be no "mistake of counting of valid and rejected votes" : This was followed by a list of 19 polling stations. On this application the Returning Officer passed an order that the "counting was being started, counting assistants and supervisors and agents were forbidden to go hither and thither. Now there will be no doubt whatsoever. Even if the counting agent wishes then he can give an application according to law for recounting after the counting is over". The counting of votes had commenced on February 21, 1967, and this application was given early on the next day. After the counting was over, Ajmera submitted another application requesting that the mistakes he had referred to in the earlier application "be ascertained and that along with the checking of valid and invalid votes" of those polling stations, the recounting be also made of five more polling stations as he "apprehended that the same mistakes" were "repeated while announcing the figures", and that the result of the election be announced only after a recount as prayed in his applications. On that the Returning Officer passed a laconic order: "Heard both the parties. I find the application unreasonable and hence rejected" : The first respondent also was not satisfied with the counting. On that the Returning Officer passed a laconic order: "Heard both the parties. I find the application unreasonable and hence rejected" : The first respondent also was not satisfied with the counting. He submitted an application on February 22, 1967, when the counting was going on, requesting for the reasons mentioned therein, that a recount of polling stations Pahalodi, Basni Seja, Mokala, Gagrana, Kairu, Merta City, Javil and Dhandhlas be ordered. The Returning Officer recorded an order on that application that the allegations made in the application were "absolutely wrong and that the counting had been done in a proper manner", and further ordered "Full opportunity was given to all counting supervisors. The ballot paper account was filled up properly by counting supervisor. Application for recounting can only be made after completion of the counting". Thereafter the result of the election was announced. 6. The relevant provisions of the law having a bearing on the case may first be noticed. An election petition under Section 81 of the Representation of the People Act, 1951, calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 by any candidate at such election or by any elector. An election may be declared void, if the High Court is "of the opinion that the election was vitiated on any of the grounds specified in Section 100(1) including the ground that the result of the election, insofar as it concerned a returned candidate, had been materially affected by improper reception, refusal or rejection of any vote or the reception of any vote which is void: clause (d)(iii). It is open to a defeated candidate or to an elector by a petition under Section 81 to show that the election had been materially affected as a result of wrong counting of votes or improper reception of votes or refusal or rejection of votes or reception of votes which were void. Chapter V deals with counting of votes. It provides by Section 64 that at every election where a poll is taken, votes shall be counted by, or under the supervision and direction of, the Returning Officer, and each contesting candidate, his election agent and his counting agents, shall have a right to be present at the time of counting. Chapter V deals with counting of votes. It provides by Section 64 that at every election where a poll is taken, votes shall be counted by, or under the supervision and direction of, the Returning Officer, and each contesting candidate, his election agent and his counting agents, shall have a right to be present at the time of counting. Section 66 provides that when the counting of the votes has been completed, the Returning Officer shall, in the absence of any direction by the Election Commission to the contrary, forthwith declare the result of the election in the manner provided by the Act or the rules made thereunder. In exercise of the power conferred by Section 169 of the Act the Central Government has framed Rule 63 of the Conduct of Election Rules, 1961 relating to recount of votes. Rules 56-A, 57, 57-A relate to the counting of votes. By Rule 63, insofar as it is relevant, it is provided: "(1) After the completion of the counting, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. (2) After such announcement has been made, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the returning officer to recount the votes either wholly or in part stating the grounds on which he demands such recount. (3) On such an application being made the returning officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. (3) On such an application being made the returning officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. (4) Every decision of the returning officer under sub-rule (3) shall be in writing and contain the reasons therefor.' Part I of Form 16 of the Conduct of Election Rules, 1961 is "Ballot paper account", and Part II is `Result of counting' The Form requires details to be furnished about the ballot papers received, ballot papers not used, ballot papers issued to voters, ballot papers cancelled and ballot papers used as tendered ballot papers in Part 1, and in Part 11 as against the name of each candidate the number of valid votes cast, the rejected ballot papers and the total number of ballot papers found in the ballot boxes to be entered under the signature of the Counting Supervisor and of the Returning Officer. 7. The appellant was dissatisfied with the manner in which the counting of votes took place. Two applications were successively submitted challenging the method of counting. The first respondent was also not satisfied with the counting and applied for a recount. Rule 63 requires the Returning Officer to deal with the application for recount on its merits and it is implicit in clause (3) that it would, if prima facie ground is made out, be granted. The Returning Officer is bound to record his reasons in support of his order and he would ordinarily be justified in rejecting it in whole if the application is frivolous or unreasonable. 8. In the present case applications were filed both during the counting and after the counting was completed for ordering recount and specific details were set out in the applications. The order passed by the Returning Officer on the first application gives reasons to think that the Returning Officer was of the opinion that there was some justification for the application. The Returning Officer passed an order rejecting the second application on the ground that it was "unreasonable". Why the Returning Officer found it unreasonable, he has not chosen to disclose. The statutory rules require him to set out the reasons in support of his view either granting the application or refusing to grant it on the ground that it is frivolous or unreasonable. Why the Returning Officer found it unreasonable, he has not chosen to disclose. The statutory rules require him to set out the reasons in support of his view either granting the application or refusing to grant it on the ground that it is frivolous or unreasonable. But no grounds have been given. 9. In this connection the answers given by the Returning Officer to questions put to him may be set out: "Q. On Ext. 3 you passed the order `Heard both the parties. I find the application unreasonable and hence reject it. How did you say that the request was unreasonable? A. On 22nd we counted each and every ballot paper and during that cent per cent checking there could be no mistake. So I found that the request for recount of the entire constituency was unreasonable. Counting was done of polling stations numberwise. There were 83 polling stations. 56 were counted on the first day and 27 on the second day. Polling stations 80 to 83 were counted at the end. Q. You did not do cent per cent checking in respect of these polling stations? A. Yes. After lunsh I did not do cent per cent checking. Q. In Ext. 2 request was made for recounting only 19 polling stations in Ext. 3 for 5 polling stations. They wanted only 24 polling stations to be recounted. Out of these you had checked only polling stations No. 65 cent per cent. The request was for partial recount only. How did you say that it was unreasonable? A. During arguments on the application Shri Ajmera did not point out to me that it was an application for partial recount. He prayed for the entire recount, whereas Shri Lekhraj was opposing it. Two days has already been spent over counting all we were behind the schedule. Only one day was kept for counting of Merta. So I rejected the application. Q. Shall I take it that you would have allowed partial recounting if Shri Ajmera had not pressed for the recounting of the whole? A. I would have allowed partial recounting if Shri Lekhraj had not opposed it and Shri Ajmera had not pressed for recounting of the whole." The answers clearly indicate that the evidence of the Returning Officer is unsatisfactory. 10. A. I would have allowed partial recounting if Shri Lekhraj had not opposed it and Shri Ajmera had not pressed for recounting of the whole." The answers clearly indicate that the evidence of the Returning Officer is unsatisfactory. 10. The learned Trial Judge observed that according to Instruction No. 9 of the "Instructions to Counting Supervisors and Assistants", Part II of Form 16 should have been filled by the counting supervisors after they had completed the counting of a polling station, and the counting supervisors should have noted the total number of valid votes polled by each candidate and the total number of doubtful ballot papers; that there was no separate column provided for noting these numbers by the supervisors, but the instructions lay down that these should be noted in the same column in which the final result of counting is to be noted by the Returning Officer; that the Returning Officer was unable to give any satisfactory explanation for not following the instructions even when his attention was pointedly drawn to them by the first respondent in his application, and that the conduct of the Returning Officer in writing in his order on the application that the form was being filled in by the supervisors was "utterly irresponsible" for he knew fully well that the form was being filled at in his table by one Jigar Mohammed after the final scrutiny by him. 11. A party is not entitled at the trial of an election petition to claim recount as a matter of course. He must establish a prima facie case that there has been improper reception, refusal or rejection of votes, or reception of void votes, before an order for recount is made by the Court. In coming to the conclusion whether a recount should be ordered, the High Court would give due weight to the reasons recorded by the Returning Officer for declining to order a recount. Undoubtedly there must be good grounds before directing a recount that there has been some error or irregularity in the procedure of the Returning Officer, and a recount may be ordered if a prima facie case is made out. 12. But on the facts of the present case, we have no doubt that a prima facie case was made out by the appellant. 12. But on the facts of the present case, we have no doubt that a prima facie case was made out by the appellant. It is somewhat unfortunate that the learned Judge did not consider whether the order passed by the Returning Officer suffered from any infirmity. The proceedings of the Returning Officer were highly irregular. Protests had been made by both the parties when the counting was proceeding and by the appellant after the counting was completed. The Returning Officer rejected the application for a recount without recording any reasons in support of his order, even though specific grievances were made about the mixing up of bundles of doubtful votes with the bundles of votes of the first respondent. The first order passed by him also indicates that the conditions prevailing in the counting room were not only not conducive to a correct counting, but a reasonable possibility of serious error could not be ruled out. 13. The witnesses examined on behalf of the contesting candidates, were interested and not much reliance can be placed upon their testimony. The High Court observed that the Returning Officer has made "utterly irresponsible statement" in his order on the application Ext. 9 that the Form 16 of instructions was "being filled by the supervisors", when in fact it was being filled by Jigar Mohammed after the scrutiny. The High Court's criticism in that behalf and also about the failure of the Returning Officer to act according to rules is amply justified. The fact that in the order on the application Ext. 2 the Returning Officer found it necessary to order that the supervisors, counting assistants and agents were forbidden on February 22, 1967 to go "hither and thither" naturally leads to the inference that there was some substance in the plea that the supervisors, counting assistants and agents were roaming about in the counting room. 14. But the High Court has recorded the conclusion that it was not proved that the bundles of doubtful votes were mixed up with the valid votes secured by the first respondent either deliberately or inadvertently and the allegation that one bundle of 50 valid votes which were secured for the appellant was counted for the first respondent was also not proved. In reaching his conclusion the learned Judge entered upon a painstaking analysis of the oral evidence and quoted several excerpts from the oral evidence. In reaching his conclusion the learned Judge entered upon a painstaking analysis of the oral evidence and quoted several excerpts from the oral evidence. But the oral evidence was, in our judgment, highly interested and unsatisfactory, and no firm conclusion could be founded merely upon the oral evidence. There are however certain broad considerations which justify us in ordering a recount. They are: (1) that both sides had before the counting was completed made allegations of irregularities; (2) that the order made by the Returning Officer Ext. 2 lends some support to the plea raised by the appellant that the conditions in the counting room were unsatisfactory; (3) that the procedure followed by the Returning Officer was irregular. Form 16 was not filled in as required by the rules and he made statements in the orders which have been found on scrutiny of evidence to be untrue; and (4) that the Returning Officer gave no reasons for coming to the conclusion that the application was unreasonable. He apparently heard arguments but did not hold any investigation to determine whether there was prima facie justification for the plea raised by the appellant. The High Court did not deal with the application filed by the appellant for inspection of the ballot papers. 15. Taking an overall view of the evidence and the broad considerations which we have set out earlier, we are of the view that in this case a recount of the votes cast in favour of the contesting candidates is called for. We, therefore, set aside the order of the High Court, and remand the case to the High Court. The High Court will appoint the Registrar of the Court or any other senior officer to preside over the recount of ballot papers. The ballot papers shall be counted by Court officers specially appointed by the High Court for that purpose and under the personal supervision of the supervising authority. The High Court will ensure that in the counting of votes the secrecy of the ballot papers is adequately maintained. The ballot papers shall be counted by Court officers specially appointed by the High Court for that purpose and under the personal supervision of the supervising authority. The High Court will ensure that in the counting of votes the secrecy of the ballot papers is adequately maintained. After receiving the report of the supervising authority, the High Court will give an opportunity to both the parties to be heard on that report and will then proceed to dispose of the election petition in the light of the conclusions reached on the question whether the election of the first respondent had been materially affected by reception, refusal or rejection of any vote, or reception of any vote which was void, within the meaning of Section 100(1)(d)(iii) of the Representation of the People Act, 1951. The High Court will further consider, if it transpires that the appellant had secured a larger number of valid votes than the first respondent, whether an order should be passed in favour of the appellant declaring him duly elected to the Rajasthan Vidhan Sabha from the Merta Assembly Constituency. Costs in this appeal will be costs in the High Court.