Leander Tiru v. Nirmal Enem Horo — 1987 DIGILAW 341 (PAT)

Judgment L. P. N. Shahdeo, J. 1. In this Election Petition the election of Shri N. E. Horo, respondent No.1, who was declared elected as a Member of Bihar legislative Assembly, from 302torpa (ST) Assembly Constituency in the district of Ranchi has been challenged, on various grounds. 2. A petition has been filed under Order XI, Rule 15 of the Code of civil Procedure, read with Rule 93 (1) of the Conduct of Election Rules, 1961, for inspection of the counted ballot papers in favour of the respondents. 3. The case of the petitioner is that after the counting of the votes of that Constituency was over, he was declared to have been elected, which was also published in the newspapers, namely, prabhat Khabar" and dainik hindustan" which are widely circulated, but thereafter it appears that respondent No.1 shri N. E. Horo has been declared elected by a thin margin of 39 votes and the petitioner was said to have been defeated. 4. In this Election Petition, the main claim of the petitioner is to declare him elected by majority of valid votes. It is claimed that Shri Hansraj Singh, the then Block Development Officer, Bano, was the Assistant Returning Officer and he got the counting and scrutiny of the ballot papers done The petitioner, as the State Minister, wrote several letters against the said B. D. O. and demanded his immediate transfer and those letters have been proved, which are Ext.3 and the reply of the Chief Minister is Ext.4, dated 5th March, 1984. It is therefore, claimed that the petitioner was on enmical terms with the Assistant Returning officer. Mr. Hansraj Singh, the then B. D. O. , Bano. who had manoeuvred the whole process of the election in counting the ballot papers, which is also supported by the direct evidence of P. Ws.1, 2 and 3. Tt is claimed that by official gazette, the said B. D. O. was appointed as the Assistant Returning Officer of this Constituency. It is claimed that the said Assistant Returning Officer had done the entire bungling in increasing the votes of respondent No.1 and he preferred not to record the figures of counting in Part II of form 16, which fact has been stated by P. W.1 which was not challenged in the cross-examination. It is claimed that the said Assistant Returning Officer had done the entire bungling in increasing the votes of respondent No.1 and he preferred not to record the figures of counting in Part II of form 16, which fact has been stated by P. W.1 which was not challenged in the cross-examination. It was further claimed that in form No.16 of this Constituency which was sent to the Returning Officer, column for accounting of the ballot papers was completely left blank and Form No.20, which is the result-sheet, Ext.2, the details were not mentioned. In this way, it is claimed that there has been illegal increase and decrease of votes for the purpose of helping respondent No.1. The petitioner has given instances of bunglings and has stated that in case of booth nos.2 and 22, it appears that 6 and 53 ballot papers respectively were illegally added in favour of respondent No.1. Similarly in case of booth No.97, six ballot papers were increased in favour of respondent No.1. It is further stated that in column No.3 at page 7 of Ext.2, it was found that the total number of votes actually was 14,693 in favour of respondent No.1, but that was increased to 14,695 votes. Again it, will be found that at column No.6 at page 7, so far the votes of the petitioner is concerned, the total votes of 14,828 have been reduced to 14,814. Similarly, the details of such increase and decrease which is apparent from Ext.2 has been demonstrated from paragraphs 18 to 28, of the Election Petition and the said material facts have been prima facie, proved through the evidence of P. Ws.1, 2 and 3, as well as from Ext.2. It is also claimed that the petiiioner has also stated with regard to the irregularity committed in sorting out the ballot papers of different compartments and in paragraphs 29 to 36 of the Election Petition, the petitioner has mentioned the figures. It is claimed that the petitioner was unfortunately not present at the time of counting of ballot papers and hence he was not expected to give the details of all other irregularities. But latter on he learnt about the irregularity from the counting agents and also from Form Nos.16 and 20. It is claimed that the petitioner was unfortunately not present at the time of counting of ballot papers and hence he was not expected to give the details of all other irregularities. But latter on he learnt about the irregularity from the counting agents and also from Form Nos.16 and 20. In the circumstances, it is claimed that it has become necessary to inspect the ballot papers counted in favour of the respondents in the interest of justice and fair play, and thereafter, it will be possible for the petitioner to get the relevant ballot papers detected to be brought on the record, so that the relevant evidence on behalf of the petitioner may be adduced for the purpose of deciding the issue. 5. Lastly it has been claimed that the petitioner is not demanding the inspection of marked copy of the electoral roll or the counterfoil of the electoral roll. Therefore, it is claimed that secreoy of the ballot papers is not at all to be infringed by inspecting the counted ballot papers of respondent No.1. 6. The respondent No.1, Shri N. E. Horo, has filed an objection petition to the aforesaid application of the petitioner claiming that the petition for inspection of the counted ballot papers is misconceived and has been filed by the petitioner after suppressing the material facts and as such liable to be rejected. It is claimed that the claim for counting of the ballot papers has been made by the petitioner only to indulge in roving enquiry and no prima facie case has been made out by the petitioner for an order of inspection of the counted ballot papers. It is claimed that the petitioner had filed a petition before the returning Officer for inspection of the doubtful ballot papers but he had not filed any petition for recounting of the counted ballot papers and as such the petitioner was fully satisfied with the counting of the ballot papers. It is claimed that the publication of the result in the two newspapers cannot be a ground for recounting of the ballot papers. The result of an election is announced by the Returning Officer under Sec.67 of the Representation of the People act, 1951 and not by the newspapers and on ths basis of mere specutation which the newspapers had published, it cannot be given any weight. The result of an election is announced by the Returning Officer under Sec.67 of the Representation of the People act, 1951 and not by the newspapers and on ths basis of mere specutation which the newspapers had published, it cannot be given any weight. It is claimed that Hansraj Singh was not the Assistant Returning Officer and he was not associated with the process of the counting or scrutiny of the ballot papers and in fact Mr. P. N. Singh, the Deputy Collector, Khunti was appointed as the assistant Returninig Officer by the Returning Officer for the purpose of counting of the votes, which was done under his supervision. It is claimed that neither any Hansraj Singh was present nor took change for the purpose. Therefore, the allegations made against him cannot stand. It is claimed that the documentary evidence duly published by the competent authority cannot be disbelieved by the oral evidence, which is being attempted by the petitioner in this case. It is claimed that any letter sent to the Chief Minister is the private affair and the official Gazettee, Ext.5, does not indicate the name of the Assistant Returning officer. It is claimed that the alleged details given in paragraph 10 of the petition regarding increase and decrease of votes is manufactured and fabricated for the purpose of this case. No objection was raised on behalf of the petitioner or any of the agents with regard to the alleged irregularity in sorting out or counting the ballot papers and it is false to say that they had protested but were asked to take their seats, it is claimed that the ballot papers being the secret documents, only on mere conjecture and surmises they cannot be allotted to be reopened for the purpose of fishing out the evidence in favour of the petitioner and this application has been filed with a mala fide which is fit to be dismissed. 7. In this case issues have been framed with regard to the alleged irregularity in sorting out and counting the ballot papers. While dealing with this question, the Court must have a statutory view of the provisions contaned in sections 94 and 128 of the Representation of the People Act, relating to the secrecy of the ballot papers and Rule 93 of the Conduct of Election Rules, 1961. While dealing with this question, the Court must have a statutory view of the provisions contaned in sections 94 and 128 of the Representation of the People Act, relating to the secrecy of the ballot papers and Rule 93 of the Conduct of Election Rules, 1961. It is true that the secrecy of the ballot papers are to be maintained but this secrecy cannot be above the interest of justice. 8. Now by this time, it is well settled that an order for inspection of the counted ballot papers can be passed and the leading case on this point is the case reported in A. I. R.1964 S. C.1249 (Ram Sewak V/s. H. K. Kidwai ). In this case, it was held that the power to order the inspection of the ballot papers, which is apart from Order XI of the Code of Civil Procedure, may be exercised subject to the statutory restrictions about the secrecy of the ballot paper, prescribed by Sections 94 and 128 (1) of the Representation of the People Act. Only two pre-requisite conditions have been prescribed and if those two conditions are fulfilled, an order for inspection of the ballot papers can be passed. The first condition is that the petition for setting aside an election contains the adequate statements of the material facts, on which the petitioner relies in support of his case and secondly, the Court 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 the ballot papers cannot be granted to support the vague please made in the petition not supported by material facts or to fish out the evidence in support of such pleas. It should also be kept in mind that an order for inspection cannot be granted as a matter of course having regard to be insistence upon the secrecy of the ballot papers, but if the circumstances and material facts have been brought on record, such order can be granted in the interest of justice. 9. In another ruling reported in A. I. R.1975 Supreme Court 403 chanda Singh V/s. Shiv Ram, it had been held that under what circumstances recounting of the ballot papers can be allowed. 9. In another ruling reported in A. I. R.1975 Supreme Court 403 chanda Singh V/s. Shiv Ram, it had been held that under what circumstances recounting of the ballot papers can be allowed. It has been emphasised that it should not be granted as a matter of course and the petitioner should not be allowed to fish out the materials for making roving enquiry to help him. 10. Now coming to the case, the first point that strikes attention is that respondent No.1 was declared elected by a margin of only 39 votes and secondly we have to see that material facts have been alleged in the election petition. All the details of the material facts have been stated in paragraphs 7 and onward of the election petition, as to in what manner the counting was done and one hansraj Singh was appointed as the Assistant Returning Officer, who admittedly had bad relationship with the petitioner, which cannot be doubted at this stage, in view of the letter written to the Chief Minister by the petitioner and the reply of the Chief Minister thereon. The Gazette notification, Ext.5 also shows that shri Hansraj Singh, the then B D. O, Baao, was appointed as the Assistant returning Officer. It is admitted position that Form Nos.16 and 20 were not filled up in accordance with the requirement of the law. Form 16 Part II was left blank and, therefore, there was no basis to fill up the Form No.20. The denial of respondent No.1 that Shri Hansraj Singh was not the Assistant returning Officer, prima fade, cannot be accepted, in view of the Gazette notification, Ex.5, In what manner, he was associated with the counting of the ballot papers is required to be examined. 11. It has been shown that Part II of Form 16 of 90 booths out of 120 have been kept blank by the Supervisor and the Returning Officer. This, prima facie, shows that the result was manoeuvred, which is also supported, by Exts.7 and 9. On scrutiny and examination of Form No.20, Ext.2. which has been brought on record, it will be seen that there are lot of irregularities, especially with regard to totalling of the valid votes. This, prima facie, shows that the result was manoeuvred, which is also supported, by Exts.7 and 9. On scrutiny and examination of Form No.20, Ext.2. which has been brought on record, it will be seen that there are lot of irregularities, especially with regard to totalling of the valid votes. There are also differences in the accounting of ballot papers, vide Exhibit 2 and 11 series, of 53 votes, 10 votes and 3 votes respectivily in the figures of voting of booth Nos.22, 101, 43, 48 and 111. 12. On the basis of the evidence of the three P. Ws. and the documents brought on the record, it can be conveniently said that the petitioner has succeeded in making out a prima facie case for getting an order for inspection of the counted ballot papers. The material facts have been stated in the Election petition and this Election Petition can be disposed of on the basis of the inspection of all the counted ballot papers and no further evidence is likely to be adduced. Prima facie, it has been shown that Shri Hansraj Singh was appointed as the Assistant Returning Officer with whom the petitioner had enmity. It is also admittted position that no recriminatory petition has been filed in accordance with the provisions of Sec.97 of the Representation of People Act, 1951 and as such, the respondents have no right to inspect any ballot paper on the record. It has been shown that secrecy of the ballot papers is not likely to be infringed as no prayer has been made for inspection of the marked copy of the electrol roll. 13. The margin was also so thin that actually a difference of 20 votes would have materially affected the result of the election. In a case of such a thin margin. it is ordinarily necessary for the interest of justice and fair play that an order of inspection of the counted ballot papers should be granted to eliminate the possibility and the allegations of manoeuvred ballot papers or the increase or decreas of the votes by some interested person associated with the process of the election. In this case admittedly, the figures collected are not imaginary nor any attempt has been made to fish out material in roving manner, because they are based on result-sheet, Ext.2, granted by the Returning Officer. In this case admittedly, the figures collected are not imaginary nor any attempt has been made to fish out material in roving manner, because they are based on result-sheet, Ext.2, granted by the Returning Officer. It is also settled that if a petition is not filed before the Returning Officer for recounting of the counted ballot papers, the petitioner is not deprived from making such a prayer during the course of hearing of the Election Petition. 14. In the result, on the facts and circumstances discussed above and the findings arrived at, I am satisfied that in the interest of justice, an order for inspection of the counted ballot papers of all the respondents should be passed in this case. The respondents lawyer, if they so like, may be present at the time of the counting/inspection of the counted ballot papers. This may commence from 18th Nowember, 1987, before the Deputy Registrar of this Court, or any other officer whom he may assign. The application of the petitioner for inspection of the ballot papers is accordingly allowed. Later, after the aforesaid order was passed, Mr. A. Sahay, learned counsel for the respondent No.1 Shri N. E. Horo, submitted that he wants to move to the Hon ble Supreme Court against the aforesaid order and accordingly suitable time should be allowed for the same. Heard. Since this Election Petition has already consumed 2 years from the date of its filing, two weeks time is allowed for the purpose. Accordingly, the inspection/counting of the ballot papers shall commence from 4th December, 1987, the manner stated above. The inspection of the ballot papers is deferred till that date. Application allowed.