By this election petition under section 80,80A and 81 of the Representation of Peoples Act, 1951, for short 'the Act' the petitioner seeks to challenge the election of respondent No.2, who has been declared elected to the Assam Legislative Assembly from Constituency No. 115, Moran, District Dibrugarh in the last General Election held in April, 1996. 2. There were in all nine contestants in the field. The returned candidate was a nominee of the Indian National Congress (I) while the election petitioner was sponsored by Asom Gana Parisad. His election symbol was 'Elephant', while that of respondent No.2 was 'Hand'. 3. Polling was held on 27.4.96, while counting was scheduled for 8.5.96. This time-gap between polling and counting led to some apprehensions, a petition was filed in this Court to ensure that ballot boxes were hot tampered with, during this period and the Court issued a direction to that effect. It is the petitioners case that as directed by the High Court, he appointed (i) Lila Gogoi, (ii) Sibaprasad and (iii) Minaram, as his accredited agents to keep a watch on the guard room where ballot boxes from all constituencies were kept. The strong room was in the Govt. Boys' Higher Secondary School, Dibrugarh. 4. Petitioner's grievance is that his agents were not allowed by the District Election Officer despite High Court's order, to keep a watch, for one or the other reason, rather excuse like, want of police verification of agents so appointed. 5. The election petitioner has based and claimed his relief mainly on the ground of gross irregularities and illegalities committed during counting which has materially affected the election result. 6. Boothwise irregularities as noticed on the day of counting are - (1) Signature of Presiding Officer of Booth No.15 on ballot boxes AS/22/ 68042 did not tally with the signature of Mr. Tapan Goswami, a complaint Ext 2 was lodged by six contestants excluding respondent No.2 the returned candidate and two others was lodged but this complaint was not attended to. (2) Total number of voters in Booth No.65 was 665, out of which as per Presiding Officer's report, 516 had cast their votes whereas at the time of counting 606 ballot papers were found. (3) In Booth No.24, polling was stopped at 2.30 PM. (2) Total number of voters in Booth No.65 was 665, out of which as per Presiding Officer's report, 516 had cast their votes whereas at the time of counting 606 ballot papers were found. (3) In Booth No.24, polling was stopped at 2.30 PM. Despite application Ext 3 moved, it was not resumed, nor any action taken by respondent No.l. (4) In Pollilng Station No.95 as per report submitted by the Presiding Officer 757 votes were polled whereas actual number found only 600. (5) Similarly in Polling Station No.72, as against the 405 ballot papers issued as per the Presiding Officer's report, the actual number of ballot papers found was 579. 7. Similar irregularities were apprehended in other polling stations as well, which materially affected the election results. The total difference in the above two polling stations itself to 421, which is quite significant and decisive in view of the fact that the returned candidate respondent No.2 has won the election by a narrow margin of 262 votes only. 8. The matter does not rest here. There are other irregularities as well, as pleaded by the election petitioner. At the end of seventh round on 9th May, an hours break between 7AM to 8AM in counting was suddenly declared, when the process of counting was passing through a crucial decisive phase,, the election petitioner was leading by 4429 votes, the break as declared was for an hour, it lasted for two hours. While petitioners counting agents were driven out of the hall, the respondent No.2 and his men were allowed to remain in the hall. It was during this period, with active collusion with the counting staff, many serious illegalities were committed, a large number of ballot papers were wrongly rejected while others received in favour of respondent No.2, thus materially affecting the election result. No precautions are taken during break to keep the ballot papers intact, they were left unattended without taking any care. 9. It is the petitioner's pleaded case that the votes as counted in the first round was repeated in the ninth round, it is in this context that the unscheduled, suddenly declared break in counting is to be viewed. There is a direct allegation against respondent No. 1, the Returning Officer, to put his own words, the petitioner in paragraph 18 of his petition has pleaded. There is a direct allegation against respondent No. 1, the Returning Officer, to put his own words, the petitioner in paragraph 18 of his petition has pleaded. “The respondent No. 1 by driving away the counting staff and counting agents tampered with the ballot papers which were kept open during the break hours from 7.00 AM to 9.00 AM on 9.5.96. The deliberate anomaly will be evident from the fact that the counting of first round was repeated again in the last round, that is, in the 9th round of counting. Number of votes received by different candidates in the first round are almost same as in the last round. As for example, Independent candidate Havil Dhan, who received 19 votes in the first round also received 19 votes in the last round. In case of Dipen Tanti, he received 92 votes in the first round and received votes numbering 92 in the last round even. In toto all the candidates were shown to have received the same number of votes in the last round as they received in the first round. On the other hand he valid votes received by other candidates in different rounds have a noticeable difference and mistake and anomaly in the counting will be evident from the facts given above. This has materially affect the result of No. 115 Moran Legislative Assembly Constituency and as such the petitioner is entitled to an inspection of the ballot papers and an order of recount.” 10. The election petitioner before declaration of result applied for recount but the respondent No. 1 did not pass any order thereon. 11. The returned candidate, the respondent No.2 while denying the allegations and irregularities during counting has stoutly maintained that the entire process of counting was fair and in accordance with Rules. He had evcen filed an application under section 86 of the Act read with Order 6 Rules 16 and 11 CPC praying for dismissal of the election petition on the ground of non disclosure of cause of action. This case was registered as Misc Case No.9 of 1997. By order dated 5.2.97, the same was dismissed. 12. On the basis of the pleadings of the parties, the following issues were framed: 1. Whether counting of votes and the procedure adopted by the Returning Officer was in contravention of the provisions of the Conduct of Election Rules ? This case was registered as Misc Case No.9 of 1997. By order dated 5.2.97, the same was dismissed. 12. On the basis of the pleadings of the parties, the following issues were framed: 1. Whether counting of votes and the procedure adopted by the Returning Officer was in contravention of the provisions of the Conduct of Election Rules ? If so, its impact ? 2. Whether there was any discrepancy in the actual number of ballot papers issued and the number of ballot papers used with particular reference to Polling Station No. 72 and 97, if so, its affect on election result ? 3. Whether the respondent No.l had driven away the counting agent and election agent of the petitioner ? Its effect on election. 4. Whether the election petitioner is entitled to an order of recounting of votes ? 5. What other relief or cost the petitioner is entitled ? 14. The Supreme Court by series of judgment as reported in Jitendea Bahadur Singh vs. Krishna Behari, AIR 1970 SC 276 ; Bhabhi vs. Sheo Govind, AIR 1975 SC 2117 ; Suresh Prasad Yadav vs. Jai Prakash Mishra, AIR 1975 SC 376 ; Arun Kumar Bose vs. Mohd Farkan Ansari & others, AIR 1983 SC 1311 ; Dhartipakar Madan Lai Agarwal vs. Shri Rajib Gandhi, AIR 1987 SC 1577 , and more recently in Ajit Singh vs. Bansi Singh & others, (1995) 4 SCC 758 ; MR Gopalakrishnan vs. Thachady Prabhakaran & others, 1995 Supp (2) SCC 101; Ram Roti (Smti) vs. Saroj Devia & others, (1997) 6 SCC 66 , has repeatedly held that a recount cannot be claimed as a matter of right, nor can it be granted on mere asking of it. The principles governing inspection and re­counting which can be deduced from the above and several other judgments are -(a) A recount is not granted as of right but on evidence of good grounds, or pleadings that there has been an error on the part of the Returning Officer in improper rejection of valid votes or improper rejection of invalid votes, the petitioner is to prima facie establish that the errors are such magnitude that the result of the election so far as it relates to the elected candidate is materially affected; (b) Secrecy of ballot is sacrosanct and should not be allowed to be violated on frievolous vague and indefinite- allegations. Before inspection is allowed, the allegations made against the elected candidate, must be clear and specific supported by adequate statement of material facts; (c) The Court must be prima facie satisfied that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (d) The discretion conferred on the Court should not be exercised in such a way as to enable the petitioner to indulge in a roving inquiry with a view to fish and materials for declaring the election void. 15. Now coming to the evidence adduced by the parties. I may make it clear at the very outset, that I am not inclined to deal with the seating arrangement, seven counting tables as initially provided and addition of seven tables thereto, no sooner the counting of votes for the Lok Sabha Seat was over, whereas the counting agents appointed by the petitioner were only eight including one reliever, the crowded counting hall, all these aspects have been dealt with by the Supreme Court in a very recent judgment as reported in Ajit Singh vs. Bonshi Singh & others, (1995) 4 SCC 758 , a case which is in close proximity to the facts of the case at hand, observed as follows : “It may be stated here that an official video photography of the counting process was taken and it transpires that the video tape which was placed before the Court was not dubbed or edited or manipulated in any manner whatsoever and the Court had occasion to see the original video tape. We have been taken through the evidences by the learned counsel for both the parties and also the decision of the High Court. It appears to us that there was reasonable apprehension of disturbances at the time of counting of votes and Returning Officer has justification to place police officials in the counting hall so as-to avoid any disturbance. It is an admitted position that large number of candidates contested the election and if election agents of a large number of candidates are to admitted at the place of counting the ballot papers, the Returning Officer has no alternative but to place benches in rows so that the election agents could sit in such benches placed in row on the basis of 'first come first sit*. In our view, it has been clearly established by evidence that whoever has occupied the first row of the benches on the basis of coming first was allowed to sit there and whenever such persons left his seat, the other persons sitting in the second or third row and had come and occupied the said seat. Placing offence, in the facts and circumstances of the case, was necessary to prevent any untoward situation developing at the time counting. Such precautionary measures taken by the Returning Officer, in our view cannot be held to he unjustified thereby rendering the counting process invalid. It may also be indicated that in central table the Returning Officer and the candidates were allowed to sit and from such place, the process of counting could be seen by the persons sitting at the central table. The learned Judge, in our view, has given detailed reasons as to why the contentions as improper counting of ballot papers for not giving reasonable access to the election agents to see the counting should not be accepted. Such finding, in the facts and circumstances of the case, is fully justified and we do not find any reason to take different view.” 16. Much was argued and said be both sides about the break in counting as declared on 9th morning. It was necessary to enable the personnel engaged in counting to attend to their routine morning chores. It was submitted that the break in counting as announced that came as a surprise. Petitioner's case is that taking advantage of the break, many irregularities were committed, it is only to this extent that this announcement of break is relevant. 17. The election petitioner has examined six witnesses including himself (PW 1), the Assistant Returning Officer (PW 2), the Returning Officer (PW 6) and Election Agent (PW 4), who happens to be the younger brother of the election petitioner. PW 6 Jyotish Chandra Das, who was Presiding Officer at Polling Booth No.24. It would be seen that out of six witnesses examined, by the election petitioner three are official witnesses viz. PW 2, the Assistant Returning Officer (PW 5) and PW 6 the Presiding Officer. The remaining three are the election petitioner himself (PW 1), his election agent (PW 3) and his younger brother Lila Gogoi (PW 4) who was appointed to keep watch on the strong room. 18. PW 2, the Assistant Returning Officer (PW 5) and PW 6 the Presiding Officer. The remaining three are the election petitioner himself (PW 1), his election agent (PW 3) and his younger brother Lila Gogoi (PW 4) who was appointed to keep watch on the strong room. 18. The first grievance by the election petitioner relates to appointment of his agents to keep watch on the strong room where ballot boxes were kept after the polling was complete. It is the petitioner's pleaded case that he had proposed (1) Lila Gogoi, (2) Siba Prasad (3) Minaram for the purpose of guarding the strong room, but the above named agents were not allowed to enter the guarded area of the High School where the strong room was. Police verification of the above named three persons was insisted before being allowed to enter the guarded area of the High School. 19. Assuming this insistence was unjustified and the process of police verification was unduly delayed yet the question is what happened to the strong room ? Was it attacked or its seal tampered with ? Whether ballot boxes were damaged or tampered with in absence of petitioner's agents not being there to keep a watch on strong room. Both PW 1 and his brother Lila Gogoi PW 3 in his evidence has stated that they were allowed to enter the school premises around 10.30 PM on 28th April, 1996. May be they were allowed after the intervention of the Election Commission. But there is nothing to suggest much less substantiate that any tampering with strong room was done. 20. The other aspects of evidence relates to non-tallying of Presiding Officer's signatures on the ballot boxes as they were brought to the counting hall, and with the signatures obtaining on the ballot papers pertaining to Booth No. 15. A contemporaneous complaint Ext 2 (Annexure II) was lodged by as many as five candidates, this complaint reads as follows : “Sub : Complaint regarding difference of signature of Presiding Officer in No. 15 Polling Centre. Sir, We respectfully state that difference of signature of Presiding Officer have been found in Polling Booth No.15 under No. 115 Moran Legislative Assembly Constituency in Ballot Box No.AS/22/68042. Therefore, you are requested to call the Presiding Officer to verify the signature of Presiding Officer. Sir, We respectfully state that difference of signature of Presiding Officer have been found in Polling Booth No.15 under No. 115 Moran Legislative Assembly Constituency in Ballot Box No.AS/22/68042. Therefore, you are requested to call the Presiding Officer to verify the signature of Presiding Officer. Further you are requested to stop counting of votes from the above mentioned ballot box. Yours faithfully, Sd/ Shri Kiran Kumar Gogoi 8.5.96 Candidate AGP Sd/ Sani Ram Swashi 8.5.96 Candidate, Indira Congress Sd/ Sarat Kalita 8.5.96 Candidate, BJP Sd/ Pradip Saikia 8.5.96 Candidate, Janata Party Sd/ Shri Habil Dhan 8.5.96 Candidate, Independent Sd/ Shri Dipen Tanti, Candidate, Independent.” 21. Keeping aside the evidence of the election petitioner for a while, let us see the evidence of the returned candidate RW 1 himself on the point; as quoted below : “During the course of counting it was found that signatures made on ballot papers on Polling Booth No. 15 were not tallying in the sense that in some ballot papers he signed in English and in some papers in Assamese. This fact he admitted to the RO. I did not raise any objection about the dissimilarity in his signatures. I did not confirm whether the signature were that of the Presiding Officer.” 22. Whether it was just a matter of signatures being made in the vernacular or in English as suggested by RW 1 or something more. 23. PW 5, the Returning Officer though examined as a witness, he is also a party to this petition as respondent No. 1, and going through his evidence, it would be clear that he does not corroborate RW 1 on the point that the Presiding Officer admitted his signature to PW 5, the Returning Officer who has als.0 not stated as to what action was taken by him on receiving the complaint Ext P/2. 24. True is as very rightly pointed out by the learned counsel for the respondent that the election petitioner has not chosen to examine the Presiding Officer Tapan Goswami a listed witness. But this non-examination on the part of the election petitioner does not absolve the Returning Officer of his responsibility to take suitable action in accordance with law on the application Ext P/2 as quoted above which was jointly submitted by as many as 6 contesting candidates. But this non-examination on the part of the election petitioner does not absolve the Returning Officer of his responsibility to take suitable action in accordance with law on the application Ext P/2 as quoted above which was jointly submitted by as many as 6 contesting candidates. It cannot be overlooked that the Returning Officer apart from being examined as witness (PW 5) is a party respondent No.l to this petition who has a dominant role to play in the conduct of free and fair election. Surprisingly enough, he is totally silent on the point in his deposition. Viewed in isolation, this particular aspect of the matter may not have any material bearing but it cannot also be altogether ignored in the totality of circumstance as established in the case. 25. There are other three polling booth namely Polling Booth Nos 65,72 and 95 and the irregularities as noticed in the actual number of ballot papers found in the ballot boxes when opened at the time of counting far exceeded the actual number of ballot papers issued by the Presiding Officer as per the statement filed by the election petitioner. Really speaking, this allegation which if proved, has-not only material effect but also decisive effect on the election result. The evidence on the point, therefore, needs to be closely scrutinised. 26. The difference in actual number of ballot papers as found in the ballot boxes pertaining to this polling booth and the actual number of ballot papers as issued, comes to 421 as against the marginal victory of 262 votes only recorded by the returned candidate respondent No.2. It is not as if the election petitioner during the process of counting was keeping quiet. He did lodge protest and moved applications, but to no avail. Some of them have been placed on record and proved in evidence. Exts 6 and 7 is the ballot paper account pertaining to Polling Station Nos 72 and 95. The total number of ballot papers used in Polling Station No.72 was 405 and for Polling Station No.95 was 757. Ext 5 is the certified copy of the final result sheet. The total number of votes found in Polling Station No.72 was 579 and Polling Station No.95 was 600. 27. The total number of ballot papers used in Polling Station No.72 was 405 and for Polling Station No.95 was 757. Ext 5 is the certified copy of the final result sheet. The total number of votes found in Polling Station No.72 was 579 and Polling Station No.95 was 600. 27. Now turning to the evidence on the point, PW 1 the election petitioenr has stated on oath that: “Apart from Booth Nos 24 and 64 there were irregularities in other booths as namely, Booth Nos 72 and 95. Booth No. 95 was located in Moran LP School. As against the certified copy Ext 5, in Booth No.95 the total number of ballot papers found were 600, although as per statement submitted by the Presiding Officer the total number of ballot papers used at the polling station were 757. A copy of the statement as supplied to the Election Agent is Ext 6 corresponding to Annexure VA. Similarly, as per statement supplied by the Presiding Officer Ext 7 corresponding to Annexure V in Booth No. 72 total number of ballot papers found were 579 as against 405 actually issued and used. Q. Has it affected in your way ? Ans. Booth Nos 72, 65 and 95 the difference in actual ballot papers used and the ballot papers found if taken into consideration, it comes to 421. This was major cause of my defeat. Q. By how many votes you were defeated ? Ans. I was defeated by a narrow margin of 262 votes.” 28. Learned counsel appearing for the respondent No. 2 has disputed the genuineness of the ballot papers acccount as per Exts 6 and 7. PW 1 was subjected to a very lengthy cross-examination running into 8 typed pages. All that he has been asked about this exhibits it, “Q. Whether Exts 4,6 and 7 were with you before commencement of counting of ballot papers? Ans. Yes, I knew from the statements as supplied to me by my polling agents the number of ballot papers used before commencement of counting of ballot papers.” 29. PW 1 has frankly admitted these documents were given to him by his polling agent on 27th April, the date of polling and there is nothing wrong about it. The Presiding Officer of every polling station is expected to supply ballot paper account whenever asked for. PW 1 has frankly admitted these documents were given to him by his polling agent on 27th April, the date of polling and there is nothing wrong about it. The Presiding Officer of every polling station is expected to supply ballot paper account whenever asked for. Incidently the pleading on this point may also be looked into. The election petitioner in paragraph 10 has very clearly and categorically stated: “That the petitioner begs to state that in Polling Station No.95 located at Bangla LP School (Moran Town) and in Polling Station No. 72 Kachamari LP School it was submitted by the Presiding Officer in ballot paper account that a total number of 757 and 405 ballot papers were used respectively whereas in the account checked by the respondent No.l it was shown that in Polling Station No.95 total ballot paper received is 600 and in No.72 Polling Station it was shown as 579 which came to a difference of 157 and 174 respectively thereby affecting the result of the No. 115 Moran Legislative Assembly Constituency as void. The petitioner and other candidates Shri Sarat Kalita and Shri Bahil Dhan and their counting agents also raised serious objection on 8.5.96 when they came to know about the facts. It is pertinent to mention here that in other several polling stations also there are some differences in total numbers of votes polled as submitted by the Presiding Officer and the number of votes as per report of the Returning Officer.” 30. At the end of this paragraph 10 he has also referred to the ballot paper account along with the report of the Returning Officer filed as Annexures 5A and 5B. The respondent No.2 the returned candidate in his written statement has admitted the correctness of figures shown in Annexures 5A and 5B. To quote in his own words: “That with regard to the statements made in paragraph 10 of the election petition, the figures has been correctly shown in Annexure V. Total number of ballot paper received was 779 and figures shown 202+203 makes the total 405. This was in respect of Polling Station No.72. In the same was Polling Station No.95, total ballot paper received were 1000 out of which 30 ballot papers were not used. Out of 970 only 575 ballot papers were used in the polling station vide Annexure VA.” 31. This was in respect of Polling Station No.72. In the same was Polling Station No.95, total ballot paper received were 1000 out of which 30 ballot papers were not used. Out of 970 only 575 ballot papers were used in the polling station vide Annexure VA.” 31. Surprisingly, it is in the course of arguments that the genuineness of this very document is doubted. Of course, the election petitioner in paragraph 10 of his election petition has expressed his apprehension of large scale irregularities by respondent Nos 1 and 2 which the respondent No.2 in his reply to paragraph 10 of the election petition has denied and denounced as surmises and conjectures and further added that 'The election petitioner may dream of winning the election, but in fact he lost the election and the allegations made are vague and wild.' Having accepted the correctness of figures as shown in the ballot paper account Exts 6 and 7, corresponding Annexures 5 and 5A to the election petition, the denial made by the respondent is of no avail to him. This by itself is sufficient to order recount. 32. The total number of rejected votes 3223 and the election petitioner has come out with a specific case that the respondent No.2 along with his counting agents by influencing the counting staff manoeuvred improper reception of votes for himself and refusal or rejection of votes which were in favour of the election petitioner. Counting staff on counting table Nos 1,4,6 and 7 on 9.5.96 about 11 AM took out several ballot papers and mixed them up without paying any heed to the objection of counting agents of the election petitioner and mechanically rejected those ballot papers and while the others which should have been rejected have been counted in favour of the respondent No.2. 33. It is but natural that the contesting parties are interested in trading allegations and counter allegations as they are keenly interested and their witnesses may be dubbed and denounced as 'interested', but in the instant case we have evidence of the Returning Officer himself examined as PW 5. At least he is expected to be an impartial witness as he ought to be. Let us now turn to his evidence. What he has to say about these rejected ballot papers? At least he is expected to be an impartial witness as he ought to be. Let us now turn to his evidence. What he has to say about these rejected ballot papers? His evidence is rather laconic on this point of total number of ballot papers and the statements received by him from the Presiding Officers of different polling stations. He admitted that it was he who was responsible for smooth conduct of whole election process as District Election Officer and he as also the Returning Officer and he has also admitted that until and unless he sees the ballot papers he cannot say or vouchsafe for its valid reception or rejection. He was in possession of the specimen signatures of each and every Presiding Officer appointed in the constituency. He could not read the signatures on Exts 6 and 7. If it is not the Returning Officer who could vouchsafe for proper reception of valid votes and proper rejection of invalid votes, then who else can? Sub-rule (2) of Rules 56 of the Conduct of Election Rules, 1961 (for short the Rules) enumerate the reasons for rejection of ballot paper, it reads as follows: “56. If it is not the Returning Officer who could vouchsafe for proper reception of valid votes and proper rejection of invalid votes, then who else can? Sub-rule (2) of Rules 56 of the Conduct of Election Rules, 1961 (for short the Rules) enumerate the reasons for rejection of ballot paper, it reads as follows: “56. (2) The Returning Officer shall reject a ballot paper- (a) if it bears any mark or writing by which the elector can be identified, or (b) if it bears no mark at all or, to indicate the vote, it bears a mark else where than on or near the symbol of one of the candidates on the face of the ballot paper or, it bears a mark made otherwise than with the instrument supplied for the purpose; or (c) if votes are given on it in favour of more than one candidate, or (d) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given, or (e) if it is spurious ballot paper, or (f) if it so damaged or multilated that its identity as a genuine ballot paper cannot be established or, (g) if it bears a serial number, or is of a design, different from the serial numbers, or, as the case may be design, of the ballot papers authorised for use at the particular polling station, or (h) if it does not bear (both the mark and the signature) which it should be borne under the provisions of sub-rule (1) of Rule 38.” 34.1 am fully conscious of the law laid down by the Apex Court in MR Gopal Krishna vs. T. Pravakaran, 1995 Suppl (2) SCC 101, that the demand of a defeated candidate for recounting of votes is to be considered keeping in view secrecy of ballot which is sacrosanct in a democracy. A recounting is to be ordered only when the election petitioner not only pleads the material fact but substantiate the same by means of evidence of reliable character to show that a prima facie case exists for recounting. 35. The evidence of returned candidate, respondent No.2, still remains to be seen. He could not recollect as to who was his polling agent at Polling Station Nos 95 and 72. 35. The evidence of returned candidate, respondent No.2, still remains to be seen. He could not recollect as to who was his polling agent at Polling Station Nos 95 and 72. To his knowledge, no complaint was lodged by any of the candidates, nor any irregularities was reported to him by any of his counting agents. In short, he has denied the alleged irregularities which even the Returning Officer could not deny. But, what is his reliability ? This witness joined politics in 1978. While admitting that two cases were pending against him in the Court of Sessions Judge, Dibrugarh and both these pending were casesunder section 376 IPC, when questioned about any case at any point of time pending against him in the Supreme Court, he came out with a laconic reply that he does not remember. To quote in his own words- “I do not remember any case pending against me at any point of time in the Supreme Court.” On being confronted with Lily Begum vs. Joy Chandra Nagbangshi, (1994) 2 SCC 39 , the witness admitted that there was a case before the Supreme Court. I am not at the merits of the case. My sole concern at the moment is the reliability of the witness, on plain his denial. He had the audacity to deny. This denial reflects on his reliability as an witness. Unless confronted with the judgment as reported in the Law Report, he was not prepared to accept the fact that a case was pending before the Supreme Court, and that was also a case under section 376 IPC wherein he was exempted from personal appearance. A case pending before the Supreme Court against some one is not something which can be so easily and conveniently forgotten. The evidence adduced by the election petitioner about the non-tallying of actual number of ballot papers issued by the Presiding Officer and the actual number of ballot papers found in the ballot boxes pertaining to a particulars polling stations is not only oral but also documentary in nature and at least the documentary evidence has not been controverted even by the RO. On the otherhand, the certified copy Ext P/5 corroborates the election petitioner's case This is a serious irregularity where the actual number of bal lot papers found in ballot boxes far exceeds the actual number of ballot papers issued as per the Ballot Paper Account Exts 6 and 7 which assumes importance in face of the narrow marginal victory by 262 votes as recorded by the returned candidate respondent No.2. The total difference of those ballot papers actually issued and found in two Polling Stations ie Nos 72 and 95 itself comes to 421 far in excess as against the marginal victory by 262 votes. 36. The matter does not rest here, the election petitioner has made a grievance about break in counting as announced on 9th morning. Rule 60 of the Rules enjoins the Returning Officer to proceed continuously with the counting, of course it is as far as parcticable. The grievance made by the election petitioner is that it was announced at such a juncture when the counting was passing through a crucial decisive phase and such of the bungling was done during this break between 7 AM to 9 AM on the 9th morning. There was different versions about the timing, but the fact remains that this break in counting lasted for more than an hour. Now Rule 60 provides : “Counting to be continuous - The Returning Officer shall, as far as practicable, proceed continuously with the counting and shall, during any intervals when the counting has to one suspended, keep the ballot papers, packets and all other papers relating to the election sealed with his own seal and the seals of such candidates or election agents as may desire to affix their seals and take sufficient precaution for their safe custody during such intervals.” 37. It is the election petitioner's case that no precautions were taken to keep the ballot papers intact and his Counting Agents were driven out of the counting hall and many irregularities and illegalities were committed by the respondent No. 2 with active collusion and connivance of the counting staff. It is the election petitioner's case that no precautions were taken to keep the ballot papers intact and his Counting Agents were driven out of the counting hall and many irregularities and illegalities were committed by the respondent No. 2 with active collusion and connivance of the counting staff. The election petitioner sent a FAX message to the Election Commission stating therein the irregularities committed by the respondent No. 1, which is quoted below : “The Chief Election Commission, India, New Delhi Date 10.5.96 Sub : Rigging and groos irregularities in counting of Moran (115) under Dibrugarh District, Assam Dear Sir, Most humbly and respectfully I beg to submit that I personally express my high regret in the behaviour of DRO Dibrugarh and submit this complaint with a request to re-counting of the 115 Moran Constituencies for the gross irregularities committed by the DRO Dibrugarh, Assam, some of the grounds in favour of my demand are as follows : That at 7 AM the DRO declared an hour break for tea and requested our agents to go outside the Counting Hall. But on the arrival of our Agents, after exactly one hour it was found that counting started by the Administration on presence of the only Congress (I) Agents. That in 115 Moran Constituency it was found that the sign of the Presiding Officer in the Ballot Boxes are not satisfactory in the Centre No. 15, Ballot Box No. AS/22/68042 in which all the Agents except the Congress (I) candidate objected in the matter but the DRO had not paid any heed to the same and continued counting forcefully. That in the Polling Station No.24 of Moran Constituency, no vote has been allowed to cast as per certificate of the concerning Presiding Officer but more than 400 (four hundred) ballot papers were found in the boxes of the said polling station. That the behaviour of the DRO Dibrugarh is highly biased in favour of the Congress (I) Party. 'That the DRO has not allowed my Polling Agent to receive the Annexure Form. That the DRO objected my Election Agents to go near the counting tables. That the signature of the POs are quite different in the same polling station. That the DRO refused to show even a ballot paper to my Agents. That the DRO refused on our request to announce the No. of votes casted in my favour. That the DRO objected my Election Agents to go near the counting tables. That the signature of the POs are quite different in the same polling station. That the DRO refused to show even a ballot paper to my Agents. That the DRO refused on our request to announce the No. of votes casted in my favour. It is therefore prayed that Your Honour may be pleased to : Take up the matter immediately, direct the State Election Commissioner to stop declaration of the results. Take immediate & necessary arrangement for recounting of the 115 Moran Constituency.” 38. The above break in counting came at the end of 7th round. The election petitioner has speciafically pleaded : “the respondent No! 1 by driving away the counting staff and counting agents tampered with the ballot papers which were kept open during the break hours from 7.00 AM to 9.00 AM on 9.5.96. The deliberate anomaly will be evident from the fact that the counting of first round was repeated again in the last round, that is, in the 9th round of counting. Number of votes received by different candidates in the first round are almost same as in the last round. As for example, independent candidate Havil Dhan who received 19 votes in the first round also received 19 votes in the last round. In case of Dipen Tanti, he received 92 votes in the first round and received votes numbering 92 in the last round even. In total all the candidates were shown to have received the same number of votes in the last round as they received in the first round. On the other hand, the valid votes received by other candidates in different rounds have a noticeable difference and mistake and anomaly in the counting will be evident from the facts given above. This has materially affected the result of No. 115 Moran Legislative Assembly Constituency and as such the petitioner is entitled to an inspection of the ballot papers and an order of recount.” 39. It is in the above context that the announcement of break without taking precautionary measures to keep ballot papers safe, secure and intact assumes importance. PW 5 the Returning Officer in his evidence has not been able to satisfy compliance of requirement of Rule 60 of the Rules. It is in the above context that the announcement of break without taking precautionary measures to keep ballot papers safe, secure and intact assumes importance. PW 5 the Returning Officer in his evidence has not been able to satisfy compliance of requirement of Rule 60 of the Rules. Even if the break was to be announced, whether on demand or suo motu the precautions required to be taken by the Returning Officer and his staff cannot be dispensed with. The returned candidate, respondent No.2 in his written statement stoutly denied the allegations. 40. It is not as if the election petitioner has made this grievance for the first time in this petition. He had before declaration of result submitted an application Ext 9 demanding recount as he was leading by 4,000 votes till the 7th round. The round-wise statement of vote is also available on record as Ext P/5. This sudden swing in votes in favour of the returned candidate, respondent No.2 in the ordinary circumstances could not have been of much consequence, but in view of the specific case the election petitioner has come forward with, which cannot be lightly brushed aside. Despite the demand by Ext 9 the respondent No.l did not pass any order thereon on 9th May, 1996 and the result was declared despite repeated request by the election petitioner to dispose of his application Ext 9 demanding recounting. 41. The respondent No.l in his evidence has admitted having received complaint Ext 9 and received it around 11 PM on 9th May and before declaration of election result. But he has nothing to say as to why did not pass any order thereon. In his cross-examination by the respondent No.2 he has stated that he disposed of the application then and there in presence of Central Observers. No time has been mentioned in the order, but the fact that the date as mentioned is 10.S96 is self indicative that it was after midnight What should be the consideration to weigh with the Returning Officer? No time has been mentioned in the order, but the fact that the date as mentioned is 10.S96 is self indicative that it was after midnight What should be the consideration to weigh with the Returning Officer? What should be his approach when application for recounting under Rule 63 (2) of the Rules is made, was the subject matter of consideration before the Supreme Court in S. Baldev Singh vs. Teja Singh Swatantra, AIR 1975 SC 693 , and the Supreme Court held as follows : “The Court frowns upon frivolous and unreasonable refusal of recount by Returning Officers who forget the mandate of Rule 63 that allowance of recount is not the exception and refusal is restricted to cases where the demand itself is 'frivolous' or 'unreasonable'. Where the margin of difference is minimal, the claim for a fresh count cannot be summarily brushed aside as futile or trumpery. If a uniform view, founded in legal error, has led to wrong rejection of votes, rectification by a recount on the spot, when a demand was made, would have been reasonable. If formal defects had been misconstrued as substantial infirmities, or vice versa, resulting in wrongful reception or rejection, the sooner it was set right the better, especially when a plea for a second inspection had been made on the spot. Many practical circumstances or legal misconceptions might honestly affect the legal or arithmetical accuracy of the result and prestige or fatigue should not inhibit a fresh, may be partial, cheek. Of course, baseless or concocted claims for recount or fabricated grounds for inspection or specious complaints of mistakes in counting when the gap is huge are obvious cases of frivolous and unreasonable demands for recount. Malafide aspersions on counting staff of false and untenable objections regarding validity of votes also fall under the same category. This is illustrative, not exhaustive but underlines the need, in appropriate cases, to be reasonably liberal in re-check and recount by Returning Officers. After all fairness at the polls must not only be manifest but misgivings about the process must be erased at the earliest. Indeed the instructions in the Handbook of Instructions to Officers are fairly clear and lay down sound guidelines. Judicial power to direct inspection and recount is undoubted but will be exercised sparingly. After all fairness at the polls must not only be manifest but misgivings about the process must be erased at the earliest. Indeed the instructions in the Handbook of Instructions to Officers are fairly clear and lay down sound guidelines. Judicial power to direct inspection and recount is undoubted but will be exercised sparingly. A judicial re­count is not a matter of right and convincing, not conclusive, specifically is of the essence. Election petitions come to Court after a month and a half and ripen for trial months later than and then the appeal, statutorily vested , inevitably follows. In this operation ligitation, which is necessarily protected, liberal recount or lax-reinspection of votes may create related uncertainties, false hopes and a hovering sense of suspense, long after elections are over, Govt.s formed and Legislatures begin to/unction. Moreover, while a recount, within the counting station, with the entire machinery familiar with the process still available at hand and operational, is one thing, a re-inspection and recount, which is an elaborate undertaking which mechanics and machinery of a specified nature and which cannot be judicially brought into existence without an amount of time toil and expense, is a difference thing.” 42. Learned counsel appearing for the respondents has cited host of authorities as noted below in support of his arguments. The principles which can be culled from these judgments have already been noted above and it is strictly within the. narrow admit of this principles that the allegations as made and substantiated by the election petitioner have been decided : (1) AIR 1980 SC 206 ; (2) AIR 1986 SC 1253; (3) AIR 1993 P&H 180 ; (4) AIR 1970 SC 276 ; (5) AIR 1989 SC 2023 ; (6) AIR 1983 SC 1293 ; (7) AIR 1987 Bombay 206; (8) AIR 1990 SC 838 ; (9) AIR 1975 SC 283 ; 403,376,156; (10) AIR 1983 SC 1311 ; (11) AIR 1985 SC 1746 ; (12) (1994) 2 SCC 579 . 43. Applying the principles for recount in the strictest manner possible, a case for ordering recount is not only prima facie but amply made out. The ballot paper account in Form 16 as furnished by the Presiding Officer, Polling Station Nos 72 and 95, Exts 7 and 6 respectively, the figures shown therein have been admitted to be correct by the respondent No.2, the returned candidate. The ballot paper account in Form 16 as furnished by the Presiding Officer, Polling Station Nos 72 and 95, Exts 7 and 6 respectively, the figures shown therein have been admitted to be correct by the respondent No.2, the returned candidate. The number of ballot papers in any ballot box pertaining to any polling station, can in no circum­stances exceed the actual number of ballot papers used at the polling station. But this is what has actually happened in the instant case. Comparing the figure, with the certified copy Ext 5 of the final result sheet, in Form 20, the total number of ballot papers found in the ballot boxes pertaining to the above two Polling Station Nos 72 and 95, exceeds by 262 votes, recorded by the returned candidate, respondent No.2. This position of hard concrete figures is admitted by the respondent No.2. 44. It may be noted here that the returned candidate at a very late stage when the election petitioner had virtually completed his total evidence, except the Returning Officer, respondent No. 1, whom he examined as a witness, came out with an amendment application, seeking to amend the written statement denouncing the Exts 4, 6, 7 and 8 as false and forged which he had admitted as correct in his written statement. This application was of course dismissed vide order dated 24.11.97 in Misc Case Nos 127 and 128 of 1997. 45. Even if other irregularities as established, are kept aside for a while , the difference in number of ballot papers used at the polling station and actually found in ballot box when opened at the commencement of counting, based on respondent's (No.2's) own admission (see paragraph 17 of the written statement) is suficient to warrant a recount. 46. The election petitioner has also alleged illegal stoppage of polling at Polling Station No.24 and the discrepancy in the signature of the Presiding Officer of Polling Station No.15, but I am not going into these allegations. Admittedly the election petitioner had demanded recount before the declaration of result vide Ext 9 which was rejected by respondent No.l, the Returning Officer. Of course, the Returning Officer has a discretion to allow in full or in part the prayer for recount or to reject the application. Admittedly the election petitioner had demanded recount before the declaration of result vide Ext 9 which was rejected by respondent No.l, the Returning Officer. Of course, the Returning Officer has a discretion to allow in full or in part the prayer for recount or to reject the application. The respondent No. 1 has stated in his evidence that he rejected the application Ext 9 then and there but has not stated or assigned any reasons therefor. 47. Section 100 (1) (d) (iii) makes improper reception, refusal or rejection of any vote which is void, a ground for setting aside the election of the result of the election in so far as it concerns the returned candidate has been materially affected. In the case at hand, the election petitioner has been able to make out a case how the result of the election has been materially affected in view of Exts 6, 7 and 8. In view of the foregoing discussion a recount has become imperative. It is accordingly ordered. 48. It is, therefore, directed that the respondent No.l the District Election Officer-cum-Returning Officer, Dibrugarh shall produce complete record pertaining to counting of votes along with ballot papers before the Registrar General of this Court on or before 18th June, 1998. 49. The Registrar General shall scrutinise: examine and recount the ballot papers in accordance with Rules, in presence of the parties or their accredited authorised agents not exceeding two in number. He shall first take up invalid votes for such scrutiny and recount. If on such recount of invalid rejected votes the election result in so far as it concerns the returning candidate, respondent No.2 appears to be materially affected, he shall submit his report to this Court by 25th of June 1998. 50. If the counting of votes has been done polling station wise and record of ballot papers maintained accordingly, the Registrar General shall proceed worth the scrutiny and recount of ballot papers pertaining to Polling Station Nos 72 and 95 only, otherwise the recount will be as a whole. It is made clear that recount as a whole will not be necessary if on recount of invalid rejected votes the election result in so far as it relates to the returned candidate appears to have been materially affected. 51. It is made clear that recount as a whole will not be necessary if on recount of invalid rejected votes the election result in so far as it relates to the returned candidate appears to have been materially affected. 51. The respondent No. 1 shall make available all relevant related statements of ballot papers and record to the Registrar General and provide him all necessary assistance in recounting. 52. The Registrar General is free to requisition services of High Court staff as he may deem fit, for the purpose of recount. He shall maintain a true record of the proceedings and submit his report by 25th June, 1998. 53. The expenses to be borne for such recount as directed, shall be subject to result of this election petition.