G. K. KEMPE GOWDA v. M. H. BORIAH — 1973 DIGILAW 7 (KAR)

( 1 ) IN the 1972 General Elections, Respondents 1, 2 and 3 were the contesting candidates from ihe Mandya Assembly Constituency (No. 100) to the Mysore State Legislative Assembly. The poll took place en 9-3-1972. The scriutiny and the counting of the votes was on 11 12-3-1972 from about 3 P. M. to 2-30 A. M. in the Court Hall of the Deputy Commissioner, mandya. The Ramming Officer (4lh Kesipondent) declared the 1st respondent sri M. H. Boriah as the successful candidate, he having secured 28,552 votes, and his closest rival the 2nd respondent K. V. Shankare gowda having secured 23. 405 votes--there thus being a thin difference of only 147 votes. The 3rd respondent secured a meagre 953 votes. ( 2 ) IN the Hall, where the counting took place, there were 15 counting tables. Sri G. K. Kempe Gowda was the Counting Agent of the 2nd respondent at Table No. 13. He has filed this Election Petition. 'ihe reliefs claimed are -that this Court may be pleased to direct inspection and scrutiny of the ballot papers and declare the election of the 1st respondent as void; and further declare that the 2nd respondent has been duly elected. ( 3 ) ALL the four respondents filed their written statements. The 2nd rtspondent supported the petition. Respondents 1, 3 and 4 opposed it. ( 4 ) ISSUES were framed on 18-7-3972. Since they reflect the pleadings, they are set out below : (I) Does the petitioner prove the allegations in regard to the ballot papers referred to in paragraphs 14 and 15 of the petition? (II) Dots the petitioner prove that the result of the election in so far as it concerns respondent 1 was materially affected by improper reception refusal or rejection of any votes? (III) Does the petitioner prove that sufficient opportunity was not given to the counting agents of respondent 2 to watch the scrutiny and counting of the ballot papers? (IV) Whether the petitioner proves that there was a transposition of votes as alleged in para 20 of the petition? (V) Does the petitioner prove that counting was not made according to the rules? (VI) Docs the petitioner prove that sufficient opportunity was not given to the agents of respondent 2 to seek a recount? (VII) Has the petitioner made out ,a case for inspection and scrutiny of the ballot papers? (V) Does the petitioner prove that counting was not made according to the rules? (VI) Docs the petitioner prove that sufficient opportunity was not given to the agents of respondent 2 to seek a recount? (VII) Has the petitioner made out ,a case for inspection and scrutiny of the ballot papers? (VIII) Does the petitioner prove that Sri J. Devaiah was present in the counting hall when the counting was in progress, and whether his presence and conduct materially affedted the result of the election? (IX) Is the petition hit by the principles of estoppel as alleged in paragraph 2 of the written statement of respondent 1? (X) What reliefs? ( 5 ) FOR the petitioner, five witnesses were examined. PW. 1 Sidde gowda was the Counting Agent of the 2nd respondent at Table No. 15. PW. 2 is the petitioner. PW. 3 H. A. Venkatadasu was the Election Agent of the 2nd respondent. PW. 4 Hanume Gowda was the Chief Counting agent of the 2nd respondent. PW. 5 G. B. Shivakumar was the Counting agent of the 2nd respondent at Table No. 3. ( 6 ) ON behalf of the 1st respondent, besides himself as RW. 5, four more witnesses were examined. RW. 1 K. Rame Gowda was his Chief counting Agent. RW. 2 Channakke Gowda was his Counting Agent at table No. 13. RW. 3 G. S. Bore Gcwda as his Counting Agent at Table no. 3. RW. 4 D. M. Shivalingaah was his Counting Agent at Table No. 2. . Respondent 4 examined himself, and also examined another witness N. Suryanarayana Rao who was the Counting Supervisor at Table No. 13. They are RW. 1 and RW. 2 for respondent 4. For convenient reference i shali call them RW. 6 and RW. 7. ( 7 ) EXTS. PL to P3 were marked for the petitioner; and Exts. Rl and R2 were marked for respondent 1. ( 8 ) PW. 1 Sidde Gowda was examined on 14-8-1972. After his examination on that day, the petitioner filed I. A. No. 1. PW. 4 Hanume Gowda was examined on 18-8-1972, and on the next day (19-8-1972) the petitioner filed I. A. No. II. The evidence was concluded on 11-10-1972. The petitioner filed I. A. No. III on 19-10-1972. ( 8 ) PW. 1 Sidde Gowda was examined on 14-8-1972. After his examination on that day, the petitioner filed I. A. No. 1. PW. 4 Hanume Gowda was examined on 18-8-1972, and on the next day (19-8-1972) the petitioner filed I. A. No. II. The evidence was concluded on 11-10-1972. The petitioner filed I. A. No. III on 19-10-1972. ( 9 ) IN I. A. No. 1 the relief sought is to direct respondent 4 to produce on the date fixed by the Court all the sealed containers containing the scaled packets in which the. votes secured by respondetns 1 and 2 are kept and which pertain to the fourth round of the count at Table No. 13, and the original Form NO. 20 with the enclosed Check Memo. I. A. No. III was filed as supplementary to I. A. No. I. In the relief column of I. A. No. III the fullowmg are the recitals :" (a) To direct the District Election Officer, Mandya, to produce before this Hon'ble Court the sealed container containing the sealed cover in. which are placed the sealed bundles of votes of the three candidates, respondents 1, 2 and 3, and the sealed bundle of invalid votes, petaining to the Mandya Assembly Constituency (No. 100) election of 1972 pertaining to Round 4 of Table No. 13, together with the original of Form No. 20, and its enclosures, and (b) to inspect 'the original check slips if kept in the said sealed bundles, as also the Check Memo pertaining to the 4th round of table No. 13, and to make a physical inspection of the symbol portion only of the top most ballot paper of both 'the bundles one containing 589 votes and the other containing 351 votes, to find out to which candidate really the respective bundles pertain to, and; (c) to pass consequential orders on the main petition itself after the aforesaid inspection has been made. " ( 10 ) IN I. A. No. II the petitioner prayed that the 4th respondent or the District Election Officer, Mandya may be directed to produce before this Court all the sealed containers containing all the used ballot papers pertaining to Mandya Assembly Constituency No. 100, during the election held on 9-3-1972 and that this Court may be pleased to inspect and scrutinise them. ( 11 ) SRI B. K. Ramachandra Rao, petitioner's learned Advocate, represented that he does not press T. A. No. II, that he confines himself nly to I. A. Nos. I and III and that the main petition itself shall stand or fall on the result of those two I. As. The 2nd respondent, appearing by sri Thilak Hegde, Advocate, represented that he was wholly supporting i. A. Nos. I and III. ( 12 ) THE petitioner filed affidavits in support of I. A. Nos. I and III. Respondents 1, 3 and 4 filed objections. Arguments were heard on these two I. As. The 1st respondent was represented by Sri R. J. Babu, Advocate; sri M. S. Purushotharna Rao. Advocate, appeared for the 3rd respondent, and the Advocate General represerrnted the 4th respondent. ( 13 ) THE matter in controversy has dwindled into a small compass. It will be useful to set out fairly in extennso the material part of the record concerning the point to be resolved. The first stage is now of no materiality since the petitioner has abandoned his attack on it. What remains to be adjudicated upon is only the second stage of scrutiny and counting of the votes confined to the fourth round ai Table No. 13. ( 14 ) IN the election petition it is alleged -"after the forty bundles of 25 votes each, which were allotted to each table were sorted, counted and scrutinised, they were made up into bundles of 50 by the counting officials at each table. The Counting supervisor (RW. 7) would first note down on pieces of paper the votes in favour of each candidate and the number of doubtful votes. At that time, the Counting Agents of the 2nd respondent, including the petitioner (PW. 2) would, on their own slips of paper, note down the numbers recorded by the Counting Supervisor. Thereafter, the counting Supervisor would take what is known as a Check Memo which is a form supplied by Lhe Election Commission. In this Check memo the Counting Supervisor would officially and formally note down the voting figures in respect of each candidate and the number of the doubtful votes the Counting Supervisor at Table No. 13 did not show the check memo to the agents of the candidates after he had filled it. In this Check memo the Counting Supervisor would officially and formally note down the voting figures in respect of each candidate and the number of the doubtful votes the Counting Supervisor at Table No. 13 did not show the check memo to the agents of the candidates after he had filled it. But, in so far as he purported to merely copy the figures which he had originally noted roughly on pieces of paper, the petitioner presumed that he was corectly copying the figure from the rough notes into the offical Check Memo. . . . The petitioner states that the 2nd respondent was leading at the end of the count in the first round, second round and the third round. . . . As already stated, the petitioner was the Counting Agent at Table No. 13. He correctly and carefully noted down the voting figures in favour of each candidate at the end of each round. When the Counting Supervisor roughly noted down the figures on slips of paper, the petitioner also would copy the same in his own slip of paper and the same is produced herewith and marked, as Annexure i (Ext. P1 ). Thereafter, the Counting Supervisor would take out the Check Memo and purport to copy the figures from the rough slips into the Check Memo. Since this was being done by the Counting supervisor by keeping the Check Memo close to himself, the petitioner could not observe whether he was correctly copying down the figures from the rough slips into the Check Memo. However, the petitioner presumed that the Counting Supervisor was correctly copying down the figure's. Subsequently, after the result of the election had been declared, the Election Agent of the 2nd respondent viz. , H. A. Venkatadasu (PW. 3) applied for and obtained a certified copy of the four enclosures to Form 20 and Form 20 itself, in which the official figures had been recorded which are herewith produced and marked as Annexures 2 to 6 (Exts. P1 (a) to P1 (e ). On a perusal of the enclosure to Form 20 relating to round 4, the petitioner was shocked to find that the voting figures for Table No. 13 in Round 4 had been wrongly given. P1 (a) to P1 (e ). On a perusal of the enclosure to Form 20 relating to round 4, the petitioner was shocked to find that the voting figures for Table No. 13 in Round 4 had been wrongly given. According to the petitioner's notes and according to the actual count at Table No. 13, Round 4, the 1st respondent obtained 351 votes and the 2nd respondent 589 votes, while the 3rd respondent obtained 29 votes. On the contrary, the enclosure to Form 20 relating to Round 4 shows as if the 1st respondent received 589 votes and the 2nd respondent 351 vqtes at Table No. 13. The votes of the 3rd respondent are correctly shown as 29. The petitioner submits that clearly this is an error. The voting figures of respondents 1 and 2 have been transposed. The error could have occurred in one of two ways: Either, m copying the figures from the rough slips into the Check Memo (certified copy being Ext. Rl) the Counting Supervisor of Table 13 had committed this serious error; or, while the Counting Supervisor may have entered the figures m the Check Memo correctly, the assistant (of the returning Officer RW. 1) has transposed the voting figures of responents 1 and 2. If the correct figures are taken, the 1st respondent would lose 238 votes and the 2nd respondent would gain 238 votes. The 2nd respondent would thus get a net advantage of 476 votes. In that event, instead of having lost the election by 147 voltes, he 2nd respondent would have won the election by 329 volts. The petitioner submits that this error committed by one of the officials on duty at the counting and the erroneous etjtry of the voting figures for Table 13, round 4, has materially affected the result of the election in so far as it concerns the returned candidate. " (Note : the brackets are mine ). ( 15 ) IN the written statement of the 1st respondent the following averments are found :"the Counting Supervisor at the counting table after scrutinising the bundles of valid votes for the candidate and the bundle of doubtful votes, used to straightaway enter the figures at the appropriate place on the check memo. It is not true that the Counting Agents of respondent 2 used to note on a slip of paper the numbers recorded by the Counting Supervisor. It is not true that the Counting Agents of respondent 2 used to note on a slip of paper the numbers recorded by the Counting Supervisor. It was never the practice of the Counting supervisors to note down the figures on pieces of white paper and later on transpose the same to the check memo. The Supervisors filled the check memo keeping the check memo on the table and the figures enterd by them were easily visible to the Counting Agents of the candidates, it is false that the petitionei was noting down the voting figures at the counting table. As already stated, it was not the practice of the Counting Supervisors to note down the figures after the completion of scrutiny and counting in a piece of paper before making entries on the check memo. There was no occasion for the petitioner to copy any figures from any document other than the check memo. The slip of paper marked as Annexure I to the petition has been manipulated for the purpose of this petition and is not genuine. . . . . There is no error in the erttries made in Form 20 or in the chek memo filled in by the Counting Supervisor at Table No. 13. The theory of transposition of figure's set up by the petitioner is merely an afterthought. " ( 16 ) RESPONDENT 3 in his written statement adopts the stand of respondent 1. ( 17 ) IN the written statement of respondent 4 it is alleged that the check memo that was prepared by the Counting Supervisor for the information of the Returning Officer was not required to be shown to the Counting agents and the petitioner is not entitled to make a grievance of the same. ( 17 ) IN the written statement of respondent 4 it is alleged that the check memo that was prepared by the Counting Supervisor for the information of the Returning Officer was not required to be shown to the Counting agents and the petitioner is not entitled to make a grievance of the same. He goes on to say that the further allegation that the Counting supervisor was noting down the voting figures in slips of paper is not true and correct, that the Counting Supervisor directly entered the figures in the check memo, that the petitioner's presumption that the Counting Supervisor was copying down the figures from the slips of papers is baseless and that the record namely the check memo, prepared at the time of the counting, is correctly entered and and form 20 is prepared in accordance with the figures entered in the check memo, according to which at Table 13, Hound 4, the 1st respondent obtained 589 votes and the 2nd respondent obtained 351 votes. ( 18 ) IN the affidavit filed m suppor of I. A. No. I, the petitioner has stated-"so, by counting the total number of bundles which exist in the cover of each candidate pertaining to the 4th round of Table 13, and by seeing only a portion of the top ballot paper containing the symbol portion and the rubber-stamp mark affixed thereon, without seeking the serial number of the ballot paper, to ensure to which candidate the votes therein pertain 1o, this Hon'ble Court will be able to find out by such process of physical examination whether the allegation made by the petitioner m respect of this material irregularity is made out or not. This is part of the evidence which I have to lead to substantiate my case m respect of this allegation. By this process, the secrecy of voting us not violated, as what is sought for in this application is not an inspection or scrutiny of the ballot papers by Court or re count of ballot papers pertaining to this round m respect of this allegation. By this process, the secrecy of voting us not violated, as what is sought for in this application is not an inspection or scrutiny of the ballot papers by Court or re count of ballot papers pertaining to this round m respect of this allegation. This physical test of proving my allegation that the the number of total votes secured by 2nd respondent m 4th round of 13th table is wrongly entered against the name of the 1st respondent is an important and very relevant piece of the evidence which I have to place before the Court, in support of this particular allegation. This physical test may be made by the Court in respect of the two sealed covers of respondent 1 and respondent 2 only, of 13th Table pertaining to 4th round only. All that has to be done is to get these two covers, and after opening them, verification has to be made whether the ballot papers really are of the candidate whose name appears on the cover. To ascertain this only a portion of the top-most ballot paper cf that bundle containing rubber stamp seal indicating the choice of the vofer has to be looked to. Then the physical appearance of the two bundles and the number of bundles of 50 ballot papers each contained therein, will prove the truth or otherwise of this allegation. Therefore all that is necessary is to see whether the bundle of votes pertaining to 2nd respondent consists of 11 bundles of 50 and another bundle of less than fifty, or whether it contains only 7 bundles of 50 each, one of them containing 1 vote extra The secrecy of voting will be maintained and there will be no violence thereof in this process," ( 19 ) RESPONDENT 1 in h's objections, states-"the present application is in reality an application for inspection and scrutiny of ballot papers which is one of the substantive prayers in the election petition and about which a specific icsue has also been framed. The petitioner has no right to obtain any such order for inspection or scrutiny even before adducing evidence to justify his prayer. The petitioner has no right to obtain any such order for inspection or scrutiny even before adducing evidence to justify his prayer. It is only after all the evidence has been recorded and the hon'ble Court weighs such evidence and if it is held that a case for inspection and scrutiny is made out, that a prayer like the one now made by the petitioner can be considered. . . . . . . The secrecy of the vote is of paramount importance. Such secrecy is not to be violated lightly and the sealed packets in which the ballot papers are kept are not to be opened merely on account of an imaginary error conceived by the petitioner. The document annexed to the election petition on which the petitioner has based his case is not genuine. . . The request made by the petitioner is one for opening the sealed packfts and this is really a prayer for inspection, scrutiny and recount. . . . . . The petitioner is now seeking to make out a new case not set out in the original petition. This is not permissible. " ( 20 ) THE 3rd respondent in his objections says that the interim relief sought for is not tenable. I may at once observe that the petilioner seeks it not as an interim but final relief. ( 21 ) THE 4th respondent in his affidavit savs that the averments made by the petitioner in support nf the prayer for inspection and scrutiny of the ballot papers are totally devoid of substance. In the last paragraph he adds -"it is in any event submitted that the ballot papers and the documents required by the petitioner are in the custody of the District election Officer, who is also the Deputy Commissioner for Mandya district, and in the event of the Court requiring the production of the said ballot papers and the documents, they will have to be summoned from him. " ( 22 ) IN his affidavit in support of. A No. Ill the pelitioncr states-"i have filed I. A. No. I on 14-8-72, on the day when evidence began to be recorded in this petition. I have filed an affidavit in support of I,a. No. I and I piay that the said affidavit may be read as part of this affidavit also. A No. Ill the pelitioncr states-"i have filed I. A. No. I on 14-8-72, on the day when evidence began to be recorded in this petition. I have filed an affidavit in support of I,a. No. I and I piay that the said affidavit may be read as part of this affidavit also. At the time when I filed I. A. No. I the trial had just commenced and I filed I. A. No. I to obtain suitable orders on the same, to get the sealed container in question, produced in Court. 1 did not ask for further reliefs then only in the said I. A. No. I, as I was advised that the other reliefs prayed for in this I. A. could be asked for only after letting in evidence which prima facie justified the grant of reliefs prayed for here. I havr by now adduced all my evidence in support of my contentions. The respondents also have let in evidence and have closed their case. Arguments are being heard now. Hence it has become necessary now to pray for the additional reliefs mentioned in this I. A. to enable the Court to do subsantial justice between the parties. I submit that thrre is very stiong prima jocie evidence to call for the sealed container in question and inspect the sealed cover pertaining to Round No. 4 of Table No. 13 to ascertain to which candidate the two bundles of votes containing 589 votes and 351 votes respectively pertain to, by making the inspection mentioned in this I. A. ", ( 23 ) IN his objections the 1st Respondent says -"the petitioner has not made out a ease, let alone a strong prima facie case to justify the grant of the prayer made by him in this application. The petitioner's application now is in fact contrary to the petitioner's evidence. It was the petitioner's specific case in his evidence that he made the entries in the slip of paper Ex. P-1 (wh)ch has been, marked subject to the objections of the respondents) by copying the figures from slips of paper alleged to have been filled in by the Counting supervisors and later destroyed them in the presence of the petitioner. The petitioner now wants that the check slips should be produced. The petitioner is blowing hot and cold. The petitioner's whole case has been based upon the paper Ex. The petitioner now wants that the check slips should be produced. The petitioner is blowing hot and cold. The petitioner's whole case has been based upon the paper Ex. P-l and the petitioner's case has to be judged in the light of the credibility and the probative value to be attached to that slip of paper. It is not one of the duties of the counting Agents of the candidates to maintain a record of their own at the time of the counting. It is obvious that Ex. P-1 is not a document maintained under authority of any law. The official records, the check memos and entries m Form No. 20 are not to be judged in the light of the private record allegedly maintained by counting agents of the candidates. . . . . The Returning Officer and the Counting supervisor who have deposed before the Court have categorically started that the counting work was done in an orderly manner and in accordance with the Representation of People Act and the Rules. The Counting Supervisor has stated that they have correctly noted the result of the counting on the check memo and the check slip. The petitioner has not alleged any mala fides against any of the counting staff. . . . . . . The petitioner is merely seeking to conduct a fishing enquiry m order to try the luck of the 2nd Respondent. The petitioner is not entitled to seek the assistance of this Hon'ble Court m any such effort. The application of the petitioner is not a bona fide one. " ( 24 ) THE 3rd Respondent m his objections says that the evidence before Court clearly reveals that no prima facie case is made out and the petitioner has failed to prove his case as regards the discrepancies on the counting m Round 4 at table No. 13. ( 25 ) IN the affidavit filed by the 4th Respondent he avers that I. A. Nos. I and III filed by the petitioner are absolutely groundless and are intended to embark upon a roving enquiry in a manner not warranted by law, that no prima facie case is made out for the inspection and scrutiny as prayed for. ( 25 ) IN the affidavit filed by the 4th Respondent he avers that I. A. Nos. I and III filed by the petitioner are absolutely groundless and are intended to embark upon a roving enquiry in a manner not warranted by law, that no prima facie case is made out for the inspection and scrutiny as prayed for. that if the petitioner's prayer is granted, it would unjustifiably violate the secrecy of the ballot and that the prayer is otherwise unwarranted by the facts of the case and unsustainable in law. ( 26 ) SINCE we are concerned only with table No. 13, the testimony of the persons seated at that table is the most material. They are the petitioner, p. W. 2 G. K. Kempe Gowda, R. W. 2 Channanke Gowda and R. W. 7 N. Suryanarayana Rao, P. W. 2 Kempe Gowda says -"after removing the ballot papers from each of the three boxes and the tray, they were made into bundles of 50 each by the counting supervisor and his two assistants and each bundle was tied with a rubber string. If the remaining ballot papers of each box and the tray wore less than 50 m number they were also made into a bundle and tied with a rubber string and a slip of paper would be put on the top of that bundle mentioning the total number of ballot papers in favour of a particular candidate. Regarding doubtful votes also, similar procedure was followed concerning the ballot papers. Channanke Gowda and myself were noting down on a piece of paper the respective positions of all the candidates, and of the doubtful votes. The counting supervisor was recording the numbers on the check memo, from the slips of paper on the bundles. Then he was removing those clips and tearing them off and throwing them. The bundles of the ballet papers and the check form were then sent to the Returning Officer. We could not make out what the counting Supervisor was writing on the check memo. . . . . . . Ex. P-1 is the paper on which I was noting down the respective number of votes secured by each candidate at my table. The numbers in Ex. P-l are with reference to the white slips which were subsequently torn and thrown away by the counting supervisor after writing the check memo. . . . . . . Ex. P-1 is the paper on which I was noting down the respective number of votes secured by each candidate at my table. The numbers in Ex. P-l are with reference to the white slips which were subsequently torn and thrown away by the counting supervisor after writing the check memo. I was writing down as and when the white slips were being written. The initials 'm H', 'k V S' and 'g' stand respectively for Respondents Nos. 1, 2 and 3. 'd' stands for doubtful. The numbers of all the four rounds are in it horizontally one after the other,"this witness P. W. 2 has further deposed -"about 15 days later Venkatadasu brought copies from the Re. turning Officer, showing the votes secured by each candidate at each of the four rounds of the counting and at each table. 1 happened to pass that way and was-curious to know what was happening. Venkatadasu told me that at the 4th round of the counting, the 2nd respondent at any table did not secure more votes than the 1st respondent. I told him that at my table, in the first and second rounds, the first respondent had secured mote votes than the second respondent and that at the next two rounds the second respondent had secured more votes than the first respondent. He asked me if I have kept a note of it. I said yes. Later I went home and took Ex. P-1 and showed him. Exts. P-2, P-2 (a), P-2 (b), P-2 (r), and P-2 (d) are the five copies, secured by Venkatadasu and which he showed me. It is seen from Ex. P-2 (d) that at the fourth round of counting, at the 13th table, the 1st respondent's number of votes is mentioned as 589 and that of the 2nd respondent as 351, while in reality it ought to have been vice versa. We thought that if only one check was made of that table at that round, our candidate - the 2nd respondent - would be the successful candidate in the elections, and hence I filed this election petition, alleging that the grounds mentioned therein. Ex. P-l (a) is the photo-stat copy of ex. P-1 which was taken before I filed the petition. Ex. P-l (a) is the photo-stat copy of ex. P-1 which was taken before I filed the petition. " ( 27 ) IN the cross-examination for the 1st respondent, this witness p. W. 2 Kempe Gowda says -"it is not true to suggest that the counting supervisor was not writing the numbers in any slips of paper before noting down the particulars in the check memo. He was not directly writing in the check memo. He was doing so after reference to the slips. "cross-examined for the 3rd respondent, P. W. 2 says -"when I went to the counting hall, T went with my fountain pen, a pencil and a paper. I had my glasses also. I did. not suspect any irregularities in the writing of the check memo by the counting supervisor. The corrections found in Ex. P-3 were made after the counting was done in each round and when the four horizontal figures did not total one thousand. There was a correction in Ex. P-1 for the fourth round of counting also. All the counting agents had a paper and pen with them and they were also keeping a tally of votes secured by each candidate at each round of counting. The counting agents of the 2nd respondent did not discuss aboui the position at each table. " cross-examined by the Advocate General for the 4th respondent, Returning officer, P. W. 2 says - "all counting agents of the 1st and 2nd respondent wore noting down as I was doing. . . . . . . Till we met at the Petrol Bunk, none of us couniting agents of the 2nd respondent discussed about the notings we had made. After that I told the 2nd respondent about the change in the number of votes in the 4th round and told him that, if they had been correctly entered, he would have won. . . . . . . At the end of each rourd the counting supervisor at my table was making an entry against each candidate in the check memo efter taking that figure from the slips. Since I was not allowed to take the figures from the check memo, I could not take the figures from that memo but only from the slips. The counting supervisor did not give the slips to us to look into them. Since I was not allowed to take the figures from the check memo, I could not take the figures from that memo but only from the slips. The counting supervisor did not give the slips to us to look into them. We were seeing them from the top of the bundles. I could see the figures when the counting supervisor was sticking the slips just below the rubber band After writing the figures in the check memo, the counting supervisor was tearing and throwing the slips away. I deny the suggestion about the slips being put on the bundles, and our noting the figures from them, and them the counting supervisor entering the figures from those slips in the check memo and then tearing and throwing them away, is utterly false. It is not true to suggest that the counting supervisor was ertering the figures direcly in the check memo, without any reference to any slips. " ( 28 ) R. W. 2 Channanke Gowda has deposed thus -"neither PW. 2 Kempe Gowda nor I complained about any difficulties to the counting supervisor. Neither of us noted down anything on a piece of paper. . . . . I did not take with me a fountain pen, pencil or paper No one informed me that they should not be taken. . . . . I do not know if PW. 2 Kempe Gowda was noting down on a paper. " ( 29 ) P. W. 7 N. Suryanarayana Rao has deposed thus -"from each box and the empty. ray, bundles were made of 50 ballot papers, and another last bundle was made of the ballot papers less than 50. Then I made correct entries in the check memo of the numbers of votes cast for each candidate, as seen from the bundles of the ballot papers. Then four bigger bundles were made of the ballot papers of each candidate and the doubtful votes. Before sending these bundles along with the check memo to the Returning Officer, i was attaching a slip which is known as Check Slip to each of the four big bundles. The slips contained the numbers of votes secured by each candidate and the dobutful votes. The numbers written on those slips were taken from the numbers found on the check memo. I was putting my signature on each check slip. The slips contained the numbers of votes secured by each candidate and the dobutful votes. The numbers written on those slips were taken from the numbers found on the check memo. I was putting my signature on each check slip. " ( 30 ) IN the present controversy, the evidence of the Returning Officer rw. 6 Dhirendra Singh, IAS. , may also be quoted-"the counting officials were required to make bundles of 50 ballot papers of each candidate. The total number of bundles of each candidates were tied up in one big bundle. A small slip of paper noting the number of votes secured by a particular candidate was attached to that big bundle. Similarly one big bundle was also prepared of the doubtful ballot papers. The counting supervisor was then required to write in a Form which was supplied to him, 'the number of votes secured by each candidate and also the number of doubtful votes. He had to sign that Form and bring it to the table of the Returning officer along with the four big bundles of the ballot papers. This procedure was at all the tables and for all the four rounds of counting. . . I do not know if the counting supervisors did their work properly or not. But they were required to do it properly. " ( 31 ) I shall with considerable advantage refer to a few observations of the Supreme Court which are germane in the instant context: ". . . This power to order inspection of the ballot papers which is apart from Order 11 Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot papers prescribed by Sections 94 and 128 (1 ). An order for inspection may not be granted as a matter of course; having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled: (i) that the petition for setting aside an election contains an adequate statement of the material (acts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. " Ram Sevak yadav v. Hussain Kamil Kidwai, AIR. 1964 SC. 1249. "it may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. We do not propose to lay down any hard and fast rule in this matter; indeed, to attempt to lay down such a rule would be inexpedient and unreasonable. " Dr. Jagjit singh v. Giani Kartar Singh, AIR 1966 SC. 773 "the importance of maintining the secrecy of ballot papers and the circumstances under which that secrecy can be violated has been considered by this Court in several, cases. In particular we may refer to the decisions of this Court in Ram Sevak Yadav v. Hussain Kamil Kidwai (1964-6 SCR 238) and Dr. Jagjit Singh v. Giani Kartar singh ( AIR 1966 SC 773 ). These and other decisions of this Court and of the High Courts have laid down certain basic requirements to be satisfied before an election tribunal can permit the inspection of ballot papers. Jagjit Singh v. Giani Kartar singh ( AIR 1966 SC 773 ). These and other decisions of this Court and of the High Courts have laid down certain basic requirements to be satisfied before an election tribunal can permit the inspection of ballot papers. They are (1) that the petiition for setting aside the election must contain an adequate ptatement of the material facts on which the petitioner relies in support of his case and (2) the tribunal must be prime facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. The trial Court was of the opinion that if an election petitioner in his election petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material facts. In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bold assertion that he got those figures from the counting agents of the congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information. It is not his case that they maintained any notes or that he examined their notes, if there were any. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition. The facts stated in paragraphs 13 and 14 of the Election petition and in Schedule 'e ( are mere allegations and are not material facts supporting those allegations. This Court in insisting that the election petitioner should state in the petition the material facrts was referring to a point of substance and not of mere form. Unfortunately the trial Court has mistaken the form for the substance. The material facts disclosed by the petitioner must afford an adequate basis for the allgations made. Jitendar Bahadur Singh v. Krishna behari, AIR. 1970 SC. 276. "we see nothing either in principle or in reported decisions which entitles the petitioner to demand a recount as a matter of right. Unfortunately the trial Court has mistaken the form for the substance. The material facts disclosed by the petitioner must afford an adequate basis for the allgations made. Jitendar Bahadur Singh v. Krishna behari, AIR. 1970 SC. 276. "we see nothing either in principle or in reported decisions which entitles the petitioner to demand a recount as a matter of right. " Basaviah v. Bochiah, 1959 Mys. L. J. 196. "the policy of election law seems to be that for the establishment of purity of elections, investigations into all malpractices, including corrupt practices, at elections should be thoroughly ivestigated. " r. M. Seshadri v G. V. Pai at para 16, AIR. 1969 SC. 692. "rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking there lies a juristic principle. It is the duty of the Court to ascertain that principle and implement it. " Raj Narain v. Indira gandhi, AIR. 1972 SC 1302. ( 32 ) ON 17-1-1973 the left respondent's learned Advocate Sri R. J. Babu filed a memo placing before me a very recent decision of the Supreme court in Sumitra Devi v. Sheo Shanker Prasad Yadav, AIR. 1973 SC. 215, stating that it lays down the law on the points argued on I. A. Nos. I and III. I have carefully perused it. It reiterates what has been laid down in prior decisions of the Supreme Court, the observations in most of which have been referred to above. I may particularly refer to paragraph 10-"in the case at hand, the allegations m the election petition were vague and the petition did not contain an adequate statement- of the material facts. The evidence adduced by the appellant to prove the allegations was found unreliable. No definite particulars were also given in the application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers. A recount will not be granted as a matter of right but only on the basis of evidence of good grounds for believing that there has been a mistake in the counting. No definite particulars were also given in the application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers. A recount will not be granted as a matter of right but only on the basis of evidence of good grounds for believing that there has been a mistake in the counting. It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection" ( 33 ) LET us briefly see the facts and circumstances in the matter on hand. The existence of slips of paper, technically known as check slips, attached to the big bundles as alleged by the petitioner, has been denied by Respondents 1, 3 and 4 even at the stage of pleadings, and this denial has been persevered with. That there were such slips of paper is apparent at the end of the evidence from the deposition of the official witnesses rw. 6 and RW. 7. The pqtitioner has said that the check slips were destroyed, while now it is obvious that they have been preserved. The check slips are prescribed in the hand-book for Returning Officers (for official use only ). The following is found at page 85 as the last portion of instruction 14-B:"at each round of counting, the ballot papers should be scrutinised for their validity by the counting supervisor and Assistants. The valid ballot papers will be sorted candidate-wise. The valid ballot paper of each candidate will be made up into bundles of 50 except one bundle which may contain less than 50 ballot papers. Each bundle of 50 or less ballot papers will be tied with a rubber band or string. All the bundles of ballot papers for each candidate will be tiied together with a rubber band or string. A check slip will be placed on the top of the bundle of ballot papers for each candidate showing the name of the candidate and the number of ballot papers in the bundle. This check slip will be signed by the counting supervisor. Similarly, all the doubtful ballot papers, if any, at a counting table in each round shall be made into one separate bundle and tied with a rubber band or string. This check slip will be signed by the counting supervisor. Similarly, all the doubtful ballot papers, if any, at a counting table in each round shall be made into one separate bundle and tied with a rubber band or string. A check slip showing the number of ballot papers in the doubtful bundle duly signed by the counting supervisor will be placed on the top of the bundle. Thus, at each table at the conclusion of each round of counting, there will be as many bigger bundles of valid ballot papers as there are candidates (unless any candidate has received no vote at all) and one bundle of doubtful ballot papers. The bundles of the valid ballot papers of all the candidates and the bundle of doubtful ballot papers will then be tied together into a sinele bundle which will be wrapped with the Check Memo with its Part II duly filled in and signed by the counting supervisor and placed in an appropriate pigeonhole near the table of the Returning officer. "in the same hand-book, the following matter appears at page 98:"the valid ballot papers of each candidate will be made up into bundles of 50, evcept one bundle, which may contain less than 50 ballot papers. Each bundle of 50 or less ballot papers will be tied with a rubber band or string. All the bundles of ballot papers for each candidate will then be tied together with a rubber band or string. A check slip will be placed on the top of the bundle of ballot papers for each candidate showing the name of the candidate and the No. of ballot papers in the bundle. This check slip will be signed by the counting supervisor. Similarly, the doubtful ballot papers will be put together in a bundle and tied with a rubber band or string. A check slip showing the number of ballot papers in the doubtful bundle duly signed by the counting supervisor will be placed on top of the bundle. Thereafter the bundle of doubtful ballot papers will be placed on top of the bundles of valid ballot papers of all the candidates and tied together into one bundle. This bundle will be wrapped with the check Memo for counting and placed in an appropriate pigeonhole near the table of the Returning Officer. " ( 34 ) RW. 1 K. Ranw Gowda says -". . This bundle will be wrapped with the check Memo for counting and placed in an appropriate pigeonhole near the table of the Returning Officer. " ( 34 ) RW. 1 K. Ranw Gowda says -". . . There was a prohibition for the Chief Counting Agent and the counting agents from noting down the details of the number of votes and the progress, and the ballot papers. The prohibition was not by any person or under the Rules. Since the Rules do not provide for the noting I presumed that nothing would be improper. "rw. 2 Channanke Gowda says-". . . I did not take with me a fountain pen, pencil or paper. No one informed me that they should not be taken. At the end of each round I was unable to make out as to how many votes each candidate secured. I again say I could make out. What I mean is that I could see the counting supervisor writing in the check Form. But I was not seeing the figures. I was keen on knowing the voles secured by the 1st respondent at the end of each round. I was also keen on knowing the total number of votes secured by the 1st respondent after the four rounds. I could not remember the total number of votes obtained by each candidate at each round. Despite my keenness I was not noting down the total number of votes of each candidate at the end of each round. This was because I had not taken anything with me to note down. I do not know if PW. 2 Kempe Goioda was noting down on a paper. " (The underlining (italics) is mine ). ( 35 ) THE Advocate General, Sri R. N. Byra Reddy, conceded that there is no prohibition about the carrying, of pen, gaper and recording the count at each table. Ex. P1 purported to be written by the petitioner (PW. 2) cannot therefore be straightaway dismissed without a second thought as a spurious piece of paper. ( 36 ) THERE being no prohibition, it is only natural to expert that a counting agent at his table would note down from the check slips at each round the progress of the cadidates. The over-all position at all the 15 tables was known when Venkatadasu (PW. 3) obtained certified copies exts. ( 36 ) THERE being no prohibition, it is only natural to expert that a counting agent at his table would note down from the check slips at each round the progress of the cadidates. The over-all position at all the 15 tables was known when Venkatadasu (PW. 3) obtained certified copies exts. P2 to P2 (d), and only then, as explained by ;the petitioner, he was able to assess if there was any error at the recording of the counting at his table. As rightly remarked by Sri Ramachandra Rao, the delay of about fifteen days by the petitioner in not bringing to the notice of the 2nd respondent or PW. 3 Venkatadasu about what is noted in Ext. P1, cannot thus be made much of. ( 37 ) SRI Ramachandra Rao repeatedly drew my attention to the following aspects-The election petition contains an adequate statement of the material facts. I. A. No. I read with I. A. No. III lies within a very brief compass. He seeks in them his last piece of evidence concerning a small point involving only a verification of the counting at the 13th table at the 4th round without violation of the secrecy of the ballot. There is no scrutiny, which is synonymous with inspection, involved here, and no counting also. The defence has referred to some unnatural conduct on the petitioner's side, but this is only to be expected in the heat and frenzy of the elections. The aim of rthe Election Law is purity and the scheme of the Act the confidence of the public in the administration of justice has to be maintained and fostered. I am in agreement with what he has represented. ( 38 ) IN the result, I. A. Nos. I and III are allowed. I. A. No. II stands dismissed as not pressed. I direct the District Election Officer, Mandya, to produce before me at 10-30 A. M. on 30-1-1973 the sealed container, containing the sealed cover in which are placed the sealed bundles of votes of the three candidates-Respondents 1, 2 and 3-and the sealed bundle of invalid votes, pertaining to the Mandya Assembly Constituency (No. 100) Election of 1972, and pertaining to round 4 of table No. 13, together with the original of Form 20 and its enclosures: in order to inspect in the very restricted manner, as ultimately prayed for by the petitioner. The question of costs will be considered thereafter. --- *** --- .