JUDGEMENT 1. Petitioner had filed a petition for contesting the election for the post of Mukhiya in respect of Gram Panchayat-Kochahasa in the district of Arwal. The voting took place on 24.5.2006. The counting of votes of the said Gram Panchayat started at 8 P.M. on 5.6.2006. Petitioner ultimately lost to respondent no. 4 by a margin of 37 votes. This led to petitioner filing an election petition. In election petition it has been clearly averred that while counting of votes are being done, there were manipulation and her votes were counted as votes of another. In the election petition the allegation was specific. In relation to Booth No. 71, it was alleged that there were 236 votes polled. It was also the report of the Polling Officer but when counting was taken up, only 223 votes were found and the Returning Officer excluded 13 votes and carried it away, which were polled in favour of the petitioner. In respect of Booth No. 72, it was alleged that the total votes that were cast, as per book of the Polling Officer, was 250 but on total votes being counted it was found that 289 votes were cast. Thus, there was an unexplained excess of 39 votes. In course of trial, official witnesses when confronted with these reports, merely said that were arithmetical mistakes and offered no explanation. The trial court i.e. Munsif, Jehanabad in Election Case No. 15 of 2006 held that as the petitioner had not averred that 39 votes, which were added, were cast in favour of respondent no. 4, they could not be taken note of and even if it be accepted that 13 votes of petitioner was wrongly excluded and wrongly included with respondent no.4, the margin was such that the result would not vitiate. On such a finding the election petition has been dismissed. 2. Before this Court, on behalf of respondent no. 4, an issue is first raised that there being no protest and demand for recounting at the time of counting in terms of Rule 79 of the Bihar Panchayat Election Rules, the prayer for recount would stand vitiated. 3. Learned counsel for the petitioner submits that protests were made immediately before the results were declared. Protests were made thereafter. The trial court has accepted those evidences. 3. Learned counsel for the petitioner submits that protests were made immediately before the results were declared. Protests were made thereafter. The trial court has accepted those evidences. The trial court has not non-suited the petitioner on the ground of infraction of Rule 79 in any manner. In this regard both sides have relied on the judgments of the Apex Court in the case of Chandrika Prasad Yadav V/s. State of Bihar & Ors. since reported in (2004) 6 Supreme Court Cases 331 [:2004(3) PLJR (SC)133] and Hoshila Tiwari V/s. State of Bihar, since reported in 2008(4) PLJR (SC)62. 4. Learned counsel for respondent no. 4 submits that Rule 79 is mandatory. Petitioner submits that it is not so mandatory even otherwise the trial court having accepted the evidence of the petitioner on this count, this issue cannot be gone into by this Court. 5. I have perused both the judgments. 6. In the case of Chandrika Prasad Yadav (supra) in para 26 there is an indication that the provisions are mandatory but at the same time it said that if such an opportunity is not availed of by the election petitioner, he has to state the reasons thereof. If no sufficient explanation is furnished by the election petitioner as to why such statutory remedy was not availed of, the Election Tribunal may consider the same as one of the factors for accepting or rejecting the prayer for recounting. In the case of Hoshila Tiwari (supra) in para 11 of the report it supports that Rule 79 of the Rules is mandatory but thereafter their Lordships noticed the case of Chandrika Prasad Yadav. Their Lordships hold that even a subsequent report, if made with an explanation for not making it earlier and the explanation having been found good, the same can be accepted as duly compliance thereof. 7. In the present case, the Election Tribunal has not non-suited the petitioner on this count and as such it would not be proper for this Court to get involved in this issue. However, in fairness to the counsel for the respondent I may notice that counting had started late in the night and there are absolutely in the judgments clearly to suggest that at 2 A.M. on 6.6.2006, objections were filed in writing before the Returning Officer, which have not been disputed. That should close this issue. 8. However, in fairness to the counsel for the respondent I may notice that counting had started late in the night and there are absolutely in the judgments clearly to suggest that at 2 A.M. on 6.6.2006, objections were filed in writing before the Returning Officer, which have not been disputed. That should close this issue. 8. Now coming to the merits on the own findings of the Election Tribunal, its stand established that 13 votes of Booth No. 71 were wrongly bundled and counted as votes of respondent no. 4. What is material to be noticed here is that on Booth No. 71, 236 votes were cast but only 223 votes were counted. The matter became serious. In booth no. 72, only 250 votes were cast but at the stage of counting, 289 votes were surfaced. Thus there remains unexplained votes 39 in number. From where these votes surfaced when they were not issued for being cast has nowhere been explained either by the official witness or by respondent no. 4. These are the fictitious votes. If these are the fictitious votes then, in my view, finding such voters and such manner of polling vitiate the fairness of the election process itself. it makes little difference whether 13 votes were polled in favour of the petitioner or not because the winning margin is only 37 votes. It cannot be predicated as which are 39 fictitious votes and where all such problems arose. In the net result, in my view, the fairness of election process and the election, in view of the aforesaid, stands vitiated, which finding was not arrived at by the Election Tribunal. 9. In view of the findings, as noted above, I am left with no option but to set aside the order dated 31.3.2008 in Election Case No. 15 of 2006 passed by Election Tribunal, Jehanabad and declare that the election of the said Gram Panchayat stood vitiated and the result cannot be said to be a free, fair and legal result. The election of the respondent no. 4 is, accordingly, set aside. 10. The writ petition is accordingly allowed.