1. The election petitioner, Atul Bora, challenges, with the help of this election petition made under section 80 read with section 80A of the Representation of the People Act, 1951 ('the HOP Act'), the declaration of the returned candidate, Akon Bora, from No. 52 Dispur Legislative Assembly Constituency ('the LAC'), as void under the mandates of the ROP Act and seeks order for fresh poll in Polling Station Nos.164 and 196 of the said LAC. 2. The material facts, leading to this election petition, may be set out as under: (i) Altogether 12 candidates contested the said election, which was held on 3rd April, 2006. While the election petitioner, Atul Bora, was the nominee of Trinamool Gana Parishad, the respondent, Akon Bora, was the nominee of the Indian National Congress. The counting of votes took place on 11.5.2006 and after the counting, result was declared on 11.5.2006 itself and, in terms of the declaration so made, the petitioner had secured 51,648 valid votes as against 52,461 votes, which the respondent had secured. The respondent was declared to have been elected as the returned candidate from the said LAC having secured 813 more votes than the election petitioner, the election petitioner being the candidate, who had secured next highest number of votes. ' Case of the election petitioner 3. (i)Counting began, on 11.5.2006, at 8 a.m., at two halls of Cotton College, namely, Hall Nos.3 and 4. After completion of 13 rounds of counting, the control unit, used in Polling Station No. 164, was brought to table No.9 of Hall No. 3, where Jiban Bora was the counting agent of the election petitioner, the seal of the control unit was opened and, thereafter, when result button was pressed by perforating the paper seal fixed under rule 49E of the Conduct of Election Rules, 1961, ('the Rules of 1961'), the control unit showed the number of candidates as 12. Thereafter, the control unit malfunctioned and could not show any further result. The Returning Officer was informed and as per his direction, counting of votes, in respect of the remaining EVMs, continued. At about 3.30 p.m., after finishing 21st round, when the counting was about to end, the counting agent of the election petitioner enquired about the control unit of Polling Station No. 164. To his shock and surprise, Jiban Bora did not find the said control units inside the Hall No. 3. At about 3.30 p.m., after finishing 21st round, when the counting was about to end, the counting agent of the election petitioner enquired about the control unit of Polling Station No. 164. To his shock and surprise, Jiban Bora did not find the said control units inside the Hall No. 3. It was only at that stage that Jiban Bora was told by the polling officials that the said control units had been taken away outside the counting hall to an undisclosed location. The control units were taken out without informing the election petitioner or his election agent, Dharmeswar Bora, or his counting agent, Jiban Bora, who were present at the place of counting and that too, without resealing the said control units. Later on, the officials posted, in the counting hall, started to say that the said control units had been taken to the District Election Officer's room. (ii) Coupled with the above, after completion of 16th round of counting, while counting process was on in Hall No.4, the control unit of Polling Station No. 196, which was brought to table No.3, also started malfunctioning. This control unit too, after showing the number of candidates as 12, failed to show result and the Returning Officer was informed about the malfunctioning of the said control unit too and the Returning Officer said that after completion of 20th round of counting, the control unit of Polling Station No. 196 would be opened. While 18th round of counting was going on, the Returning Officer brought two engineers, but the engineers could not fix the control unit of Polling Station No. 196 and the control unit was kept at the Returning Officer's table and, subsequently, without even informing the election petitioner, his election agent or his counting agent, the control unit of Polling Station No. 196 was taken outside the counting hall No.4 without resealing the control unit. Thus, both the control units of Poll Station Nos.164 and 196 had been taken out from Hall Nos.3 and 4 respectively without resealing the control units. (iii) At about 4 p.m., the officials of the Election Commission called the election petitioner, his counting agent and election agent to Hall No. 3 and informed them that they would start counting of votes polled at Polling Station Nos.164 and 196. (iii) At about 4 p.m., the officials of the Election Commission called the election petitioner, his counting agent and election agent to Hall No. 3 and informed them that they would start counting of votes polled at Polling Station Nos.164 and 196. In the said Hall, i.e., Hall No.3, the officials of the Election Commission were present and the control units of Polling Station Nos.164 and 196 were also brought there and were found with their seals opened. The election petitioner objected to the counting of votes recorded in these two control units, but the Returning Officer stated that he had sent a Fax message to Delhi seeking instruction as to what to do with these control units. At about 5.30 p.m., the Returning Officer informed all concerned that he had received a Fax message asking him to go ahead. Thereafter, the Returning Officer, in spite of objection raised by the election petitioner, asked certain persons to open the control units of Polling Station Nos.164 and 196. In Hall No.3, the said persons, claiming to be the ECIL engineers, took apart both the EVMs and removed all circuits and wires from their respective places. Thereafter, these persons claimed that the result of Polling Station No. 196 can be ascertained, but the result in respect of Polling Station No. 164 cannot be ascertained. (iv) The election petitioner filed an objection, in writing, on 11.5.2006, at 7.15 pm, requesting the Returning Officer not to declare the result. The Returning Officer, however, passed an order, on 11.5.2006, which was served on the election petitioner, on 12.5.2006, in respect of the said objection petition, wherein the Returning Officer stated that as the control units of Polling Station Nos.164 and 196 did not show the result, the ECIL engineers were summoned, who examined both the machines and, opined that there were some defects with the capacitor inside the machines and on opening the control units, which had been used at the Polling Stations, the result of one of the Polling Stations, namely, Polling Station No. 196, could be ascertained, but the result of the other Polling Station, namely, Polling Station No. 164, could not be ascertained. The Returning Officer further stated in his order that as the margin between the leading candidates and the objector, Atul Bora, i.e., the election petitioner, is more than the votes polled in Polling Station No. 164, it would not affect the outcome of the overall result of the said election and as such, he declared final result in favour of the respondent. (iv) Control units of Polling Station Nos.164 and 196 lost their sanctity inasmuch as these two control units, after opening of the seals put on them, were taken out of the counting hall without resealing the same and, later on, the Returning Officer, without any authority, allowed these control units to be opened by unauthorised persons. The Returning Officer during the interval, when counting had to be suspended, did not keep the EVMs and all other documents, relating to the counting process, sealed with his own seal nor did he allow the election petitioner, his election agent or his counting agent to affix their seals on the EVMs. The, Returning Officer took away the control units without informing the election petitioner, his election agent or his counting agent to some undisclosed location and allowed some unauthorised persons to handle the same without authority. The Returning Officer did not, thus, take sufficient precaution for the safe custody of the EVMs, in question, during the interval, when counting of these polling stations were kept suspended. Hence, there is clear violation of the provisions, as regard counting of votes in EVMs and sealing of control units, as provided by rules 60, 66A read with rules 55C, 56C and 57C of the Rules of 1961. The Election Commission not having exercised its powers under the provisions of the ROP Act, there has been non-compliance of the provisions of rules 60, 66A read with rules 55C, 56C and 57C of the Rules of 1961, which has vitiated and materially affected the result of the election, in question, and, hence, the election may be declared as void under section 100(1)(d) of the ROP Act. The purported result of the votes, polled in Polling Station No. 196, cannot be taken into account, when the result of the Polling Station No. 164 could not be ascertained on account of malfunctioning of the concerned control units of the EVMs. The purported result of the votes, polled in Polling Station No. 196, cannot be taken into account, when the result of the Polling Station No. 164 could not be ascertained on account of malfunctioning of the concerned control units of the EVMs. The difference of margin between the leading candidate, (i.e., the respondent) and the objector, Atul Bora, i.e., the election petitioner, is less than the votes polled in Polling Station Nos. 164 and 196. The result of the poll of the said Polling Stations would have a direct bearing on the result of the election and mechanical failure of the voting machine is material, which called for a direction for a fresh poll in Polling Station Nos. 164 and. 196 in terms of section 58 of the ROP Act. The Election Commission not having exercised its powers under the provisions of section 58 of the ROP Act, there has been non-compliance with the provisions of the ROP Act and also improper rejection of the votes in the said polling stations for which the result of the election is, so far as it concerns the returned candidate, has been materially affected and as such, the election of the returned candidate is liable to be declared void. 4. (i) As against the above case of the petitioner, the case of the respondent may be described, thus : (i) During the course of counting, two control units, used in Polling Station No. 164, were brought to table No. 9, the first control unit, which had recorded part of the votes, was opened and the votes recorded therein were noted down. Thereafter, the second control unit, used at Polling Station No. 164, was opened for counting. This control unit, after showing the number of candidates as 12, stopped functioning and the counting officials decided to continue with the counting so far as the remaining EVMs were concerned. (ii) After completion of the 16th round of counting, when counting process was in progress in Hall No. 4, the control unit of Polling Station No. 196 too, at Hall No.3, malfunctioned and accordingly, the Returning Officer was informed. When the control unit of Polling Station No. 196 of Hall No.3 started malfunctioning, the Returning Officer informed all the candidates, their agents and counting agents that after completion of 20th round of counting, the control unit of Polling Station No. 196 would be opened. When the control unit of Polling Station No. 196 of Hall No.3 started malfunctioning, the Returning Officer informed all the candidates, their agents and counting agents that after completion of 20th round of counting, the control unit of Polling Station No. 196 would be opened. While 18th round of counting was in progress, the Returning Officer brought two engineers authorised by the Election Commission, but the engineers could not fix the control units and the control units were kept on the Returning Officer's table. Thereafter, the Returning Officer sent a fax message to Delhi seeking instructions from the Election Commission. On receiving Fax message from the higher authority, the Returning Officer was instructed to go ahead and the Returning Officer instructed the engineers to open the control units of Polling Station Nos. 164 and 196 inside the counting hall. Thereafter, the engineers informed that the result of the Polling Station No. 196 could be ascertained, but the result in respect of Polling Station No. 164 could not be ascertained. (iii) The respondent denies that the result of the election of the said LAC has been vitiated, because of malfunctioning of the control units of the EVMs used at Polling Station Nos.164 and 196. The respondent also denies that the result of the election has been materially affected due to malfunctioning of the control units of the EVMs used at the said Polling Stations. The respondent further denies that the result of the election was materially affected due to non-compliance of the provisions of the ROP Act and the Rules of 1961 rendering the election of the returned candidate liable to be declared void. 5. On the basis of the pleadings of the parties, the following issues were framed : "(i) Whether the election petition is maintainable in the light of the specific provisions contained in sections 80A, 81, 83 and 100 of the ROP Act? (ii) Whether the election petition is maintainable in its present form? (iii) Whether the election petition is barred by limitation? (iv) Whether the election petition falls under any of the grounds mentioned in section 100 of the ROP Act? (ii) Whether the election petition is maintainable in its present form? (iii) Whether the election petition is barred by limitation? (iv) Whether the election petition falls under any of the grounds mentioned in section 100 of the ROP Act? (v) Whether the counting of the control unit of the Polling Station No. 164 had to be suspended in the course of counting and during such interval, whether the said control unit was kept without resealing the same and was taken out of Hall No. 3 without resealing and without informing the election petitioner, his election agent or his counting agent present at Hall No. 3 violating thereby rules 60,66A read with rules 56C and 57C of the Rules of 1961? (vi) Whether the counting of control unit of Polling Station No. 196 had to be suspended in the course of counting and during such interval, whether the said control unit was kept without resealing the same and was taken out of Hall No. 4 without resealing the same and without informing the election petitioner, his election agent or his counting agent present at Hall No.4 violating thereby rule 60, rule 66A read with rules 55C, 56C and 57C of the Rules of 1961? (vii) Whether in course of counting, the ECIL engineers interfered with the circuits and wires of the control units of the Polling Station Nos.164 and 196 and whether such interference is in violation of the provisions relating to counting of votes in EVM and sealing of controlling units as provided in the Rules of 1961? (viii) Whether the result of Form 52 Dispur LAC, insofar as it concerns the returned candidate, has been vitiated and materially affected due to malfunctioning of the control units of the EVM used at Polling Station No. 164 and Polling Station No. 196 during the process of counting? (ix) Whether the purported results at Polling Station No. 196 could have been taken into account for declaration of results of No. 52 Dispur LAC? (x) Whether it was necessary for the Election Commission to issue a direction for fresh poll/re-poll in respect of Polling Station Nos. 164 and 196 under section 58 of the ROP Act, and whether, because of the Election Commission's failure to exercise this statutory powers, the result of the election, in so far as it concerns the returned candidate has been materially, affected? 164 and 196 under section 58 of the ROP Act, and whether, because of the Election Commission's failure to exercise this statutory powers, the result of the election, in so far as it concerns the returned candidate has been materially, affected? (xi) Whether the result of the election from No. 52 Dispur LAC, in so far as it concerns the returned candidate, has been vitiated and materially affected due to non-compliance of the provisions of the ROP Act, and the Conduct of Election Rules, 1961, making the election of the returned candidate liable to be declared void? (xii) Whether the election of the respondent from No. 52 Dispur LAC is required to be declared void under the mandates of the ROP Act, and whether the election petitioner is entitled for a declaration of fresh poll at Polling Station Nos. 164 and 196 of No.52 Dispur LAC? (xiii) To what other relief/reliefs, if any, the parties are entitled?" 6. In support of his case, the election petitioner has examined seven witnesses including himself, his election agent, counting agent and the Returning Officer. In denial of the petitioner's case, the respondent has examined four witnesses including himself, his election agent and two officials of the Election Commission, namely, Debajit Khanikar and Deepak Choudhury, who were Assistant Returning Officers at Hall Nos. 3 and 4 respectively. 7. I have heard Mr. N. Dutta, learned senior counsel, for the election petitioner. I have also heard Mr. A.M. Mazumdar, learned senior counsel, and Mr. A.K. Bhattacharjee, learned senior counsel, for the respondent. (29.6.2010) Election Petition [Part-II] Nos. (i) and (ii) 8. As both these issues are closely interwoven, I take up both these issues for discussion and decision together. While considering these two issues, it needs to be noted that though it has been contended, in the written statement, which the respondent has filed, that the election petition is not maintainable, nothing could be submitted, at the time of hearing of the election petition, and nothing has been brought on record to show as to why the election petition can be said to be not maintainable in its present form and/or under sections 80A, 81, 83 and 100 of the ROP Act. This apart, as is warranted by law, the election petition was signed and verified by the election petitioner. This apart, as is warranted by law, the election petition was signed and verified by the election petitioner. There is nothing to show, nor has it been contended, that the election petition was not signed and verified, as is warranted by law, by the election petitioner. These two issues are, therefore, decided in the affirmative. Issue No. (iii) 9. Coming to the Issue No. 3, it may, once again, be noted that though it has been contended, in the written statement, that the election petition is barred by limitation, nothing really surfaces from the materials on record and nothing has been submitted, at the time of hearing of this election petition, to show as to why and how the election petition can be said to be barred by limitation. This apart, under section 81 of the ROP Act, an election petition calling in question any election, may be presented within a period of forty-five days from the date of election of the returned candidate if there is not more than one candidate at the election. In the case at hand, the result of the election was declared on 11.5.2006 and the election petition was filed on 9.6.2006. Thus, the election petition was filed within forty-five days from the date, when the respondent was declared elected. The election petition was, therefore, clearly within the period of limitation. The Issue No. 3 is accordingly answered in the negative. Issue Nos. (v) and (vi) 10. Both these issues are found to be closely inter-linked and inextricably connected with each other. These two issues are, therefore, taken up together for discussion and decision. 11. For correctly appreciating the issues involved and the laws applicable thereto, it is necessary to bear in mind the relevant provisions of the ROP Act and the Rules of 1961. The relevant provisions of the ROP Act, the Rules of 1961 and the instructions contained in the Hand Book of the Returning Officer's are, therefore, reproduced hereinbelow indicating as to what these provisions and instructions convey. 12. Section 61A of the ROP Act, read as under : "61A. Voting Machines at elections. The relevant provisions of the ROP Act, the Rules of 1961 and the instructions contained in the Hand Book of the Returning Officer's are, therefore, reproduced hereinbelow indicating as to what these provisions and instructions convey. 12. Section 61A of the ROP Act, read as under : "61A. Voting Machines at elections. - Notwithstanding anything contained in this act or the rules made thereunder, the giving and recording of votes by voting machines, in such manner as may be prescribed, may be adopted in such constituency or constituencies as the Election Commission may, having regard to the circumstances of each case, specify. Explanation - For the purpose of this section, "voting machine" means any machine or apparatus, whether operated electronically or otherwise, used for giving or recording of votes and any reference to a ballot box or ballot paper in; this Act or the rules made thereunder shall, save as otherwise provided, be construed as including a reference to such voting machine, wherever such voting machine is used at any election." 13. From a careful reading of section 61A of the ROP Act, it becomes clear that any reference to ballot box or ballot paper in the ROP Act and the Rules framed thereunder shall, save as otherwise provided, be construed as including a reference to such voting machine, wherever such voting machine is used at any election. 14. Section 49E of the Rules of 1961 provides as under : "49E. Preparation of voting machine for poll. - (1) The control unit and balloting unit of every voting machine, used at a polling station, shall bear a label marked with, - (a) the serial number, if any, and the name of the constituency; (b) the serial number and name of the polling station or stations as the case may be; (c) the serial number of the unit; and (d) the date of poll. (2) Immediately before the commencement of the poll, the Presiding Officer shall demonstrate to the polling agents and other persons present that no vote has been already recorded in the voting machine and it bears the label referred to in sub-rule (4). (2) Immediately before the commencement of the poll, the Presiding Officer shall demonstrate to the polling agents and other persons present that no vote has been already recorded in the voting machine and it bears the label referred to in sub-rule (4). (3) A paper seal shall be used for securing the control unit of the voting machine and the Presiding Officer shall affix his own signature on the paper seal and obtain thereon the signature of such the polling agents present as are desirous of affixing the same. (4) The Presiding Officer shall, thereafter, fix the paper seal so signed in the space meant therefor in the control unit of voting machine and shall secure and seal the same. (5) The seal used for securing the control unit shall be fixed in such manner that after it has been sealed, it is not possible to press the "result button" without breaking the seal. (6) The control unit shall be closed and secured and placed in full view of the Presiding Officer and the polling agents and the balloting unit placed in the voting compartment." (emphasis added) 15. From what rule 49E of the Rules of 1961, it becomes clear that before commencement of the poll, a paper seal shall be used for securing the control unit of the voting machine and the Presiding Officer shall affix his own signature on the paper seal and obtain thereon the signature of those polling agents, who may be present and desirous of affixing their signatures thereon. The Presiding Officer shall, thereafter, fix the paper seal, so signed, in the space meant therefor in the control unit of voting machine and shall secure and seal the same. 16. Rule 49E(5), when read with rule 49E(6), clearly mandates the Presiding Officer of every polling station to ensure that the seal, used for securing the control unit, is fixed in such manner that after it has been sealed, it is not possible to press the "result button" without breaking the seal and the control unit shall be closed, secured and placed in full view of the Presiding Officer and the polling agents and the balloting unit placed in the voting compartment. 17. From the provisions so embodied in rule 49E, what becomes evident is that there must be a paper seal placed on the EVM in the manner as indicated above. 17. From the provisions so embodied in rule 49E, what becomes evident is that there must be a paper seal placed on the EVM in the manner as indicated above. The seal shall contain not only the signature of the Presiding Officer, but also of the polling agents of those candidates, who may be present and desirous of affixing their signatures on the said seal. It is also the duty of the Presiding Officer to ensure that the seal, used for securing the control unit, remains fixed so that it is not possible for anyone to press the "result button" without breaking the seal. 18. In short, thus, the seal of the EVM, as warranted by rule 49E; must remain intact and it must be ensured by the Presiding Officer and the Returning Officer that the seal remains intact and no one is allowed to press the "result button" without breaking the seal. 19. I may, now, turn to the Handbook of the Returning Officer wherein the relevant instructions with regard to mock poll read as under : "HAND BOOK OF THE RETURNING OFFICER (Chapter XIII CONDUCTING THE MOCK POLL) 15.1 Before commencing the poll, the Presiding Officer has to satisfy not only himself but all polling agents present that the voting machine is in perfect working order and that no votes have already been recorded in the machine. For such satisfaction, he should first show to all present that all counts have been set to ZERO by pressing the 'Clear' button in the Result Section of the control unit. On pressing this button, the display panels will show that the number of votes recorded for each candidate is ZERO. 15.2 He should, then, conduct a mock poll by recording a few votes at random for each of the contesting candidates. These votes may be recorded by asking the polling agents to press any of the candidates button on the balloting unit according to their own choice. A careful note should, however, be kept of the votes, so recorded, so that the votes so recorded can be tallied with the votes recorded by the machine, when the result is ascertained at the completion of the mock poll. The result of the mock poll can be ascertained by pressing the button marked 'Result' in the Result Section of the control unit. The result of the mock poll can be ascertained by pressing the button marked 'Result' in the Result Section of the control unit. On that button being pressed, the display panels will show the number of votes recorded for each candidate sequentially beginning with the contesting candidate number 1. After the result has been ascertained and tallied, the machine should again be cleared and all counts should be set to ZERO by pressing the 'Clear' button. 15.3 The detailed instructions as to the operations, on the voting machine for conducting the mock poll, are given in Chapter 4 of the 'Electronic Voting Machine Manual' brought out by the manufacturing company. These instructions should be carefully studied and meticulously followed, because these very instructions will apply, when the actual poll is taken." 20. Coming to the seal, which is required to be placed on the EVM and the controlling unit, it may be pointed out that the relevant instructions, contained in this regard, in the Handbook of the Returning Officer, read as under : "FIXING GREEN PAPER SEAL IN THE CONTROL UNIT 16.1 In the conventional system of voting where balloting papers and ballot boxes are used, the ballot boxes are sealed and secured by fixing a green paper seal specially got printed by the Commission. Once the green paper seal is fixed in a ballot box and the lid of the box is closed, the box cannot be opened and the ballot papers contained therein cannot be tampered with or taken out for counting unless the green paper seal is torn. Similar safeguard has been provided in the voting machine so that once the poll commences, nobody should be able to tamper with the voting machine. To achieve and ensure this, provision has been made for fixing the same green paper seal which is used for securing a ballot box, in the control unit of the voting machine. 16.2 There is frame provided for fixing the paper seal on the inner side of the door of the inner compartment of the Result Section of the control unit. (In the case of voting machines manufactured by Bharat Electronics Limited, the said frame provides for fixing two paper seals and accordingly two paper seals are to be used in the control units of the voting machines manufactured by that company). (In the case of voting machines manufactured by Bharat Electronics Limited, the said frame provides for fixing two paper seals and accordingly two paper seals are to be used in the control units of the voting machines manufactured by that company). The seal should be so fixed that its green surface is seen through the aperture from the outer side. 16.3 It should be ensured that no damaged paper seal is used in any case and if any paper seal gets damaged in the process of fixing, it should be replaced then and there before the door of the inner compartment is closed. Damaged paper seal should not be thrown as damaged paper seals are also to be kept in a sealed envelope. 16.4 Before a paper seal is used, the Presiding Officer should affix his signature in full immediately below the serial number of the paper seal. It shall be got signed by such of the candidates or their polling agents as are present and are desirous of affixing their signatures. The Presiding Officer should verify that the signatures of the polling agents on the paper seal tally with their signatures on their letters of appointment. After fixing the paper seal, the door of the inner compartment should be closed by being pressed fit. It should be closed in such a manner that the two open ends of the paper seal project outwards from the sides of the inner compartment. 16.5 After the Green Paper Seal has been fixed and secured, and signed by the Presiding Officer and the polling stations, the door of the inner compartment over the "Clear" Button and "Result" Buttons should be pressed fit and closed. Then the inner door should be sealed with the Special Tag. Before the Special Tag is used, the Presiding Officer will write the serial number of the Control unit on the Special Tag. 16.6 After writing the serial number of the Control unit on the Special Tag, the Presiding Officer will put his signature on the BACK SIDE of the Special Tag. He will ask the candidates, polling agents, present in the polling station, before the commencement of the poll to put their signatures on the back, if they so desire. He will also read out the pre­printed serial number on the Special Tag and ask the candidates/polling agents present to note down that serial number." (emphasis added) 21. He will ask the candidates, polling agents, present in the polling station, before the commencement of the poll to put their signatures on the back, if they so desire. He will also read out the pre­printed serial number on the Special Tag and ask the candidates/polling agents present to note down that serial number." (emphasis added) 21. A careful reading of what para 16 contains, as a whole, shows that in the case of conventional system of voting, where ballot papers and ballot boxes are used, the ballot boxes are sealed and secured by fixing a green paper seal specially got printed by the Election Commission so as to ensure that once the green paper is fixed in a ballot box and the lid of the box is closed, the ballot box cannot be opened and the ballot papers contained therein cannot be tampered with or taken out for counting unless the green paper seal is torn. Similar safeguards have been provided in the voting machine so that once the poll commences, nobody should be able to tamper with the voting machine and, in order to achieve and ensure this, provision has been made for fixing the same green paper seal, which is used for securing a ballot box, in the control unit of the voting machine. 22. In fact, there is a frame provided for fixing the paper seal on the inner side of the door of the inner compartment of the Result Section of the control unit and the seal should be so fixed that its green surface is seen through the aperture from the outer side. Instruction No. 16 also shows that it must be ensured that no damaged paper seal is used in any case and if any paper seal gets damaged in the process of fixing, it should be replaced then and there before the door of the inner compartment is closed. Damaged paper seal should not be thrown away as damaged paper seals are also to be kept in a sealed envelope. Rule 16(4) also mandates that Presiding Officer shall affix his signature, in full, immediately below the serial number of the paper seal. It shall be signed by such of the candidates or their polling agents as may be present and are desirous of affixing their signatures. Rule 16(4) also mandates that Presiding Officer shall affix his signature, in full, immediately below the serial number of the paper seal. It shall be signed by such of the candidates or their polling agents as may be present and are desirous of affixing their signatures. The Presiding Officer should verify that the signatures of the poling agents on the paper seal tally with their signatures on their letters of appointment. After fixing the paper seal, the door of the inner compartment should be closed by being pressed fit. It should be closed in such a manner that the two open ends of the paper seal project outwards from the sides of the inner compartment. 23. The above instructions, given as regard electronic voting machines, clearly indicate that by all means and under all circumstances, the controlling units must be kept sealed so that there is no possibility of its being tampered with or handled without removing the seal. 24. Let me, now, come to rules 49T and 49V of the Conduct of Election Rules, 1960, which read as under : "49T. Sealing of voting machine after poll. - (1) As soon as practicable after the closing of the poll, the Presiding Officer shall close the control unit to ensure that no further votes can be recorded and shall detach the balloting unit from the control unit. (2) The control unit and the balloting unit shall, thereafter, be sealed and secured separately in such manner as the Election Commission may direct and the seal, used for securing them, shall be so affixed that it will not be possible to open the units without breaking the seals. (3) The polling agents present at the polling station, who desire to affix their seals, shall also be permitted to do so. 49V. Transmission of voting machines, etc., to the Returning Officer. - (1) The Presiding Officer shall, then, deliver or cause to be delivered to the Returning Officer at such place as the Returning Officer may direct, - (a) the voting machine; (b) the account of votes recorded in Form 17C; (c) the sealed packets referred to in rule 49U; and (d) all other papers used at the poll. (2) The Returning Officer shall make adequate arrangements for the safe transport of the voting machine, packets and other papers for their safe custody until the commencement of the counting of votes." 25. (2) The Returning Officer shall make adequate arrangements for the safe transport of the voting machine, packets and other papers for their safe custody until the commencement of the counting of votes." 25. Acareful reading of rule 49T indicates that soon after closing of the poll, the Presiding Officer shall close the control unit to ensure that no further votes can be recorded and shall detach the balloting unit from the control unit. The control unit and the balloting unit shall, thereafter, be sealed and secured separately in such a manner as the Election Commission may direct and the seal, used for securing them, shall be so affixed that it will not be possible to open the units without breaking the seals. The polling agents present at the polling station, who desire to affix their seals, shall also be permitted to do so. 26. Rule 49V, if read carefully, indicates that the Presiding Officer, having taken precaution to ensure that the controlling units are properly sealed, deliver, or cause to be delivered, to the Returning Officer, at the assigned place, the EVM consisting of balloting unit and the controlling unit together with all requisite papers. 27. In the light of what rules 49T and 49V contain, let me, once again, turn to the Handbook of the Returning Officers and take note of instruction No.48.1, which relates to sealing of voting machine after close of the poll. The relevant instructions read as under : "HANDBOOK OF RETURNING OFFICER (SEALING OF VOTING MACHINE AFTER THE CLOSE OF POLL) 48.1 After the poll has been closed and the account of votes recorded in the voting machine has been prepared in Form 17C and copies thereof furnished to the polling agents present, the voting machine should be sealed and secured for transportation to the counting/collecting centre. 48.2 For sealing and securing the voting machine, the balloting unit(s) and the control unit should be disconnected and the power switch in the control unit should be switched 'OFF'. The balloting unit(s) and the control unit should be put back in their respective carrying cases. The carrying cases should, then, be sealed by passing a thread through the two holes provided for the purpose on both sides of the carrying cases and putting thread seal with the Presiding Officer's seal on an address tag showing the particulars of the election and the polling station. The carrying cases should, then, be sealed by passing a thread through the two holes provided for the purpose on both sides of the carrying cases and putting thread seal with the Presiding Officer's seal on an address tag showing the particulars of the election and the polling station. The particulars, on the address tag, shall be the same as mentioned in para 16.2 of Chapter XII. The candidates or their polling agents, as are present and desirous of putting their seals, should also be allowed to do so. 48.3 The names of the candidates/polling agents, who have affixed their seals on the carrying cases of the balloting unit(s) and control unit, should also be noted, by the Presiding Officer in the declaration which he makes at the close of the poll vide Part IV of Annexure XXX." 28. A close reading of what is contained as regards sealing of voting machine, in the handbook of instructions, shows that after close of the poll, voting machine should be sealed and secured for transportation to the counting/collecting centre and, for this purpose, control unit should be disconnected from the balloting units and the power switch, in the control unit, should be switched off. The balloting units and the control Unit should, then, be put back in their respective carrying cases and the carrying cases should, then, be sealed by passing a thread as mentioned in instruction No.48.2. The carrying cases are also required to be sealed in the manner as indicated. All these steps, which are required to be taken to seal the EVM, are indicative of the anxiety of the Election Commission to ensure a free and fair poll so that the voting machines, after the poll is over, cannot be tampered with or is not handled and opened except as provided by law. 29. Instruction Nos.50.1 and 50.2 are meant for ensuring safe transportation and custody of the EVMs. These instructions read : "TRANSMISSION OF VOTING MACHINE AND ELECTION PAPERS TO THE RETURNING OFFICER 50.1 After the voting machine and all election papers have been sealed and secured by the Presiding Officer, the Presiding Officer has to deliver them or cause them to be delivered at such place as you may direct. These instructions read : "TRANSMISSION OF VOTING MACHINE AND ELECTION PAPERS TO THE RETURNING OFFICER 50.1 After the voting machine and all election papers have been sealed and secured by the Presiding Officer, the Presiding Officer has to deliver them or cause them to be delivered at such place as you may direct. 50.2 You should make proper arrangement for the safe transportation and custody of the voting machines and other election papers and materials after the close of the poll from the polling station to the storage centre, where the voting machine and election papers will be stored pending the counting. In this connection, following instructions should be particularly taken note of and followed : (a) It will be desirable to take the sealed voting machine and other election papers and materials after the completion of poll direct to the place fixed for counting of votes. This arrangement will ensure that the sealed voting machines are handled only once before the votes are counted. It must be ensured that there are sufficient arrangement for the safe transportation and custody of voting machines. (b) You should inform the candidate or their election agents sufficiently in advance about the programme of the collecting parties being sent by you. If any, and the route chart for the collection of the voting machine and other election material from the polling station after the conclusion of the poll, so that the candidates may make arrangements, if they so desire, for sending their agents to accompany such collecting parties, The agent of the candidates should, however, make their own arrangements for their transportation and they in no case, should be allowed to travel in the same vehicles in which the voting machines and other election materials and polling parties are transported. SAFE CUSTODY OF VOTING MACHINES AFTER POLL 51.5 If any of the contesting candidates so desires, he may be permitted to post an agent to keep watch at the place, where the voting machines are stored pending the counting, and allow him to affix his own seals to the doors and windows of the building in which voting machines have been stored in addition to the seals that may be affixed by you. It should also be ensured that immediately after all the voting machine have been received and stored, the room is locked forthwith. It should also be ensured that immediately after all the voting machine have been received and stored, the room is locked forthwith. Thereafter, no one is allowed to go in until the morning of the day fixed for counting. If during this interval, for some unavoidable reason, the room has to be opened, you should send for the candidates or their authorized representatives by giving them intimation in writing and open the room in their presence and immediately after the purpose for which the room is opened is over, the candidates, or their representatives should again be allowed to put their seal on the door, lock and windows." 30. From the precautions, which are required to be taken by the Returning Officer to ensure that the voting machine, comprising of balloting unit and its control unit, be sealed as soon as the polling is over and the seal be maintained until the time the counting of votes begins, it becomes abundantly clear that the Election Commission's guidelines make it mandatory for the Returning Officer to ensure that the voting machine is sealed and kept sealed in such a manner that, until time the counting starts, no one is able to tamper with the doting machine. In fact, the provisions of law and the instructions, contained in that behalf, maintain that not only the voting machine has to be sealed, but even the carrying bags, wherein the voting machine is kept, is required to be sealed. 31. Let me, now, turn to rule 66A, rules 55C, 56C, 57C, 60, 61, 63 of the Rules of 1961, which being relevant, are reproduced herein below : "66A. Counting of votes where electronic voting machine have been used. -In relation to the counting of votes at a polling station, where voting machine has been used, - (i) the provisions of rules 50 to 54 and in lieu of rules 55, 56 and 57, the following rules shall, respectively, apply, namely : "55C. Scrutiny and inspection of voting machine. - (1) The Returning Officer may have the control units of the voting machines used at more than one polling station taken up for scrutiny and inspection and votes recorded in such units counted simultaneously. Scrutiny and inspection of voting machine. - (1) The Returning Officer may have the control units of the voting machines used at more than one polling station taken up for scrutiny and inspection and votes recorded in such units counted simultaneously. (2) Before the votes recorded in any control unit of a voting machine are counted under sub-rule (1), the candidate or his election agent or his counting agent present at the counting table shall be allowed to inspect the paper seal and such other vital seals as might have been affixed on the unit and to satisfy themselves that the seals are intact. (3) The Returning Officer shall satisfy himself that none of the voting machine has, in fact, been tampered with. (4) If the Returning Officer is satisfied that any voting machine has, in fact, been tampered with, he shall not count the votes recorded in that machine and shall follow the procedure laid down in section 58 or section 58A or section 64A as may be applicable in respect of the polling station or stations, where that machine was used. 56C. Counting of votes. - (1) After the Returning Officer is satisfied that a voting machine has, in fact not been tampered with, he shall have the votes recorded therein counted by pressing the appropriate button marked "Result" provided in the control unit whereby the total vote polled and votes polled by each candidate shall be displayed in respect of each such candidate on the display panel provided for the purpose in the unit. (2) As the votes polled by each candidate are displayed on the control unit the Returning Officer shall have - (a) the number of such votes recorded separately in respect of each candidate in Part II of Form 17G; (b) Part II of Form 17C completed in other respects and signed by the counting supervisor and also by the candidates or their election agent or their counting agents present; and (c) corresponding entries made in a result sheet in Form 20 and the particular so entered in the result sheet announced. SVC. Sealing of voting machines. SVC. Sealing of voting machines. - (1) After the result of voting recorded in a control unit has been ascertained candidate-wise and entered in Part II of Form 17E and Form 20 under rule 56C, the Returning Officer shall reseal the unit with his seal and the seals of such of the candidates or their election agents present, who may desire to affix their seals thereon so, however, that the result of voting recorded, in the unit, is not obliterated and the unit retains the memory of such result. (2) The control unit so sealed shall be kept in specially prepared boxes on which the Returning Officer shall record the fallowing particulars, namely: (a) the names of the constituency; (b) the particulars of polling station or stations, where the control unit has been used; (c) serial number of the control unit (d) date of poll; and (e) date of counting; (ii) the provisions of rules 60 to 66 shall, as far as may be, apply in relation to voting by voting machines and any reference in those rules to, - (a) ballot paper shall be construed as including a reference to such voting machine; (b) any rule shall be construed as a reference to the corresponding rule in Chapter II of Part IV or, as the case may be, to rule 55C or 56C or 57C." 32. A careful reading of the above Rules show that before the votes, recorded in any controlling unit of a voting machine begins, the candidate, his election agent and his counting agent, present at the counting table, shall be allowed to inspect the paper seal and such other vital seals as might have been affixed on the unit and to satisfy themselves that the seals are intact. Even the Returning Officer is duty bound to satisfy himself by examining the voting machine that the EVM and its controlling units have not been tampered with in fact, rule 66A(4) provides that if the Returning Officer is satisfied that any voting machine has, in fact, been tampered with, he shall not count the votes recorded in that machine and shall follow the procedure laid down in section 58 or section 58A or section 64A as may be applicable in respect of the polling station or stations, where that machine was used. 33. 33. Rule 56C clearly, signifies that the Returning Officer can allow the votes recorded in a voting machine to be counted only after he is satisfied that the voting machine has not been tampered with. Even after the result of the voting recorded in a control unit has been ascertained, the Returning Officer shall be required to reseal the controlling unit in the manner as indicated in rule 57C. 34. Bearing in mind the various precautions, which are required to be taken by a Returning Officer in order to ensure that the voting machine, including its control unit, remains sealed from the time the polling is over until the time the seal is broken in the manner as prescribed above, let me, now, come to, and deal with issue Nos. (v) and (vi). 35. While considering the issues, framed above, it needs to be recalled that the counting, admittedly, began on 11.5.2006, at 8.00 a.m., in two halls of the Cotton College, the two halls being Hall Nos. 3 and 4. While the counting process was on in Hall No. 3, the two control units, used at Polling Station No. 164, did not, admittedly, display any result, when the result button was pressed. Similarly, the lone control unit, used at Polling Station No. 196 and placed in Hall No. 4, too, malfunctioned and could not give the result. There is no dispute that engineers were called, but they could not fix the control units and while the counting, in respect of other polling stations were allowed by the Returning Officer to be continued, the counting of votes from the EVMs, used at Polling Station Nos. 164 and 196, were kept suspended. 36. Thus, apart from the fact that it has not been in dispute that the control units of Polling Station Nos. 164 and 196, placed in Hall Nos. 3 and 4 respectively, had not given any result and the engineers also failed to make the control units functional, it has also not been in dispute that when the said control units did not give the result, the counting, in respect of the votes polled at other polling stations, as recorded by the EVMs, continued. 3 and 4 respectively, had not given any result and the engineers also failed to make the control units functional, it has also not been in dispute that when the said control units did not give the result, the counting, in respect of the votes polled at other polling stations, as recorded by the EVMs, continued. The election petitioner alleges that during the period, when the counting of votes in respect of the said two polling stations, remained suspended, the defective control units were taken out of the respective halls without any information having been given to the Election petitioner, his election agent or counting agent and that, later on, the officials of the Election Commission started saying that the control units had been taken to the District Election Officer's room, which was also located within the campus of the said college. It is also alleged by the election petitioner that, at about 4.00 p.m., the officials of the election Commission called the election petitioner, his counting agents and election agents to Hall No. 3 and informed them that the officials would start counting of votes polled at Polling Station Nos. 164 and 196 and, when the control units, used at Polling Station Nos. 164 and 196, were brought to Hall No. 3, the control units were found with their seals open, whereupon the election petitioner objected to the counting of votes recorded in these two control units and, on the objection so raised by the election petitioner, the Returning Officer (PW2) informed them that he (PW2) would send a fax message to Delhi seeking instructions as to what to do with these two control units and, thereafter, at about 5.30 p.m., the Returning Officer announced that he had received necessary signal from Delhi asking him to go ahead, whereupon the Returning Officer asked some persons, who were claimed to be engineers from the ECIL, to open the said control units, the said persons, then, opened apart both the EVMs and removed the circuits and parts thereof and, then, those persons, who were claimed to be engineers, disclosed that the result of Polling Station No. 196 could be ascertained, but the result, in respect of Polling Station No. 164, could not be ascertained. It is the further case of the election petitioner that he filed an objection, in writing, on 11.5.2006 itself, at 7.15 p.m., requesting the Returning Officer not to declare the result, but the Returning Officer passed an order, on 11.5.2006, which was served on the election petitioner, on 12.5.2006, in respect of the said objection petition, wherein the Returning Officer had stated that as the control units of Polling Station Nos. 164 and 196 did not show the result, the ECIL engineers were summoned, who examined both the machines and opined that there were some defects with the capacitor inside the machines and, on opening the control units, which had been used at the Polling Stations, the result of one of the Polling Stations, namely, Polling Station No. 196, could be ascertained, but the result of the other Polling Station, namely, Polling Station No. 164, could not be ascertained and that the Returning Officer further stated in his said order that as the margin between the leading candidate, namely, Sri Akon Bora, (i.e., respondent herein) and the objector, Sri Atul Bora, i.e., the election petitioner, was more than the votes polled at Polling Station No. 164, it would not affect the outcome of the overall result of the said election and as such, he declared final result in favour of the respondent. 37. Thus, the election petitioner makes two clear allegations, the allegations being (i) that the control units, particularly, the control unit, used at Polling Station No. 196, had been taken out of Hall No. 4 without any information having been given to the election petitioner, his election agent or counting agent, to some undisclosed destination and, later on, the officials of the Election Commission said that the control units had been taken to the office of the District Election Officer, located within the campus of the said college, and (ii) that when the control units of Polling Station Nos. 164 and 196 could not give result, the counting of votes, in respect of the said Polling Stations, remained suspended, but the control units were not resealed, though the said control units, during-the period, when counting in respect of the Polling Station Nos. 196 and 164 were kept suspended, ought to have been kept sealed, as is required under the law. 38. 196 and 164 were kept suspended, ought to have been kept sealed, as is required under the law. 38. Pausing here for a moment, I may point out before dealing with the question as to whether the control units, in question, during the period, when the counting of votes remained suspended, had or had not been kept resealed, what needs to be, first, determined is as to whether the control units, namely, control units of Polling Station Nos. 164 and 196, placed in Hall Nos. 3 and 4 respectively, had or had not been taken out of the counting halls as alleged by the election petitioner. 39. With regard to the above, it is noteworthy that at paragraph 6 and 7 of the election petition, the election petitioner pleaded that the control units of Polling Station Nos. 164 and 196 were taken out of their respective counting halls, without informing the election petitioner, his election agent or his counting agents and, that too, without resealing the same and that they were taken to District Election Officer's room. In reply to said averments, the respondent, in his written statement, at paragraphs 11 and 14, has admitted that the control units were not resealed, but contended that the control units had not been taken out of their respective counting halls. 40. Regarding taking out of the control units from their respective counting halls, the election petitioner, in his evidence, given in affidavit, has deposed, "However, to his utmost shock and surprise he did not find the said control units at Hall No. 3. It was only at that stage, that Sri Jibon Bora was told by the polling officials that the said control units were taken outside the counting hall to DEO's room. ***** ***** *****_ Thereafter, Sri Kamal Bora also informed me and my election agent, Dharmeswar Bora, that the defective control unit of polling station No. 196 has been taken out of Hall No. 4 by the officials of Election Commission without any seal. Upon enquiry, we were told by the officials of Election Commission that the control units of polling station No. 164 and 196 had been taken to the District Election Officer's room". 41. Upon enquiry, we were told by the officials of Election Commission that the control units of polling station No. 164 and 196 had been taken to the District Election Officer's room". 41. On being cross-examined by the respondent, the election petitioner has deposed, as regards the taking out of the EVMs, thus, - "On the day of counting, the EVM, which had been used at Polling Station No. 196, was placed, at Hall No. 4, for the purpose of counting of votes and on that day, when the EVM, placed at Hall No. 4. Was found to have not been functioning properly, the authorities concerned said that they would make another attempt to count the votes after the 20th round of counting. They took the EVM from Hall No. 3 to the Returning Officer's table at Hall No. 4. The Engineers, who had come to rectify the defects, expressed their helplessness in rectifying the defects and said that they would not be able to set the EVM right. I was informed by my election agents that the EVM, in respect of Polling Station No. 196, had been removed from the counting table at Hall No. 3 and taken to the table of the Returning Officer at Hall No. 4. Thereafter, when I came there, I did not find the EVM and I was told by my election agents that the EVM had been taken away to the office of the District Election Officer. The election result could not be declared, because three controlling machines, two from Polling Station No. 164 and one from Polling Station No. 196 were brought to Hall No.3. The District Election Officer told us that if no one had any objection, they would make another attempt to count the votes in respect of Polling Station No. 196 at Hall No.3. We objected to this proposal. The District Election Officer, then, told us that it is the Returning Officer, who would be able to take decision in the matter. The Returning Officer told us that he would not be able to take any decision in the matter and he would seek the views of the Election Commission by sending a FAX to Delhi. After about an hour, an announcement was made that the Election Commission had given a go-ahead signal from Delhi and that the counting of votes would be resumed at Hall No.4. After about an hour, an announcement was made that the Election Commission had given a go-ahead signal from Delhi and that the counting of votes would be resumed at Hall No.4. When we entered into Hall No.4, we found that the EVM was lying open with its seal broken. Suspecting some foul play in the matter, particularly, because we had noticed that the EVM machine had been taken to Hall No. 3 and, then, brought back to Hall No.4, we objected to the counting of the votes and we wanted to walk out; but before doing so, I lodged a complaint, in writing. I did not ask for recounting of votes after the election results were declared (the witness adds that as the election was held with the help of EVM and I knew that the EVM was defective and no correct recounting of votes is possible and I did not, therefore, ask for recounting." (emphasis added) 42. When I put the cross-examination of the election petitioner to microscopic examination, what I notice is that nothing was elicited from the cross-examination of the election petitioner to either show that the control units aforementioned had not been taken out at all or that though the control units were taken out of the said two halls, at that time, they were kept properly sealed. In fact, it was not even suggested to the election petitioner that the control unit, used at Polling Station No. 196, had not been taken out from the hall and/or that when the election petitioner entered the hall, he found the EVM lying there. Thus, the fact that the EVM, used at Polling Station No. 196, had been taken out of Hall No. 4 without the knowledge of the election petitioner, his counting agents and election agents, remained wholly undisputed and unchallenged. 43.. Dutta, learned senior counsel, who puts in appearance on behalf of the election petitioner, is, in the face of the above proven facts of the case, correct in contending that the respondent having not even suggested to the election petitioner, while cross-examining him, that the control units had not been taken out of the respective counting halls, the fact, which surfaces undisputed and stands proved is that the control unit of Polling Station No. 196, which forms the subject-matter of controversy in the election petition, had been taken out of the Hall No. 4. In this regard, the decision of a Division Bench of Calcutta High Court, in AEG Carapiet v. A Y Derderian, AIR 1961 Cal. 359 , has been referred to by Mr. Dutta, learned senior counsel, wherein the court, in AEG Carapiet (supra], held thus, "The law is clear on the subject. Whenever the opponent has declined to avail himself of opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witness. It has been stated, on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponents witness in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated." (emphasis added) 44. It is true, as observed, in AEG Carapiet (supra), that when the opponent declines to avail himself of opportunity to put his essential and material case in the cross-examination, it must follow that he believes that the testimony given could not be disputed at all and that this rule is not merely a technical rule of evidence, but a rule of essential justice. I am, therefore, of the view that when the respondent has not, while cross-examining the election petitioner, even denied the fact that the control unit, used at Polling Station No. 196 and placed in Hall No. 4, had not been taken out of the said place, and when the election petitioner's evidence, given in this regard, has remained wholly undisputed and unchallenged, the evidence, so given by the election petitioner, must be held to have proved that the said control unit had, indeed, been taken out of Hall No. 4 without the election petitioner, his election agent and counting agent having been informed in this regard. We have to also bear in mind that it is not the number of witnesses, but the quality of evidence adduced, which determines the outcome of a trial. When the evidence, given by the election petitioner, has remained unchallenged as aforementioned, there can be no escape from the conclusion, and I do hold, that the election petitioner has proved that the control unit of the EVM, used at Polling Station No. 196 and placed at Hall No. 4, had been taken out of the Hall No. 4 without any information having been given to and without the knowledge of the election petitioner, his election agent and counting agent. 45. Bearing in mind, as indicted above, that the uncontroverted and undisputed evidence of the election petitioner is that the control units, used at Polling Station No. 196, had been taken out from Hall No. 4 without giving any intimation to the election petitioner, his counting agents and election agents, let me, now, turn to the question as to whether the control units, in question, were kept sealed in safe custody during the period, when the counting of votes, in respect of the two polling stations, were kept suspended. 46. While considering the question posed above, it needs to be also borne in mind that rule 60 of the Conduct Rules provides that the Returning Officer shall, as far as practicable, proceed continuously with the counting and shall, during any intervals, when the counting has to be 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. The question, therefore, is this : Whether, as required under the ROPAct, the Rules of 1961, and the instructions issued by the Election Commission, (which we have already discussed above), the control unit of the EVM, used at Polling Station No. 196, had been kept sealed in custody or not during the period, when the counting of votes in the said Polling Station remained suspended? 47. With regard to the above, it needs to be pointed out that the respondent admits the fact that neither the control unit of Polling Station No. 164 nor of the Polling Station No. 196 had been kept sealed during the intervening period between the point of time, when the controlling units malfunctioned and did not give result, until the time some persons, claiming to be engineers from the ECIL, re-examined the EVMs, at about 5.30 p.m., and claimed to have set right the control unit of Polling Station No. 196. The relevant averments, appearing in the respondent's written statement, at paragraph 8, read as under : "On the date of polling at polling station No. 164, after recording of votes for some time, the EVM stopped functioning and a new EVM was brought to use and the voting continued till the end normally. When the counting was started, the two control units, used in polling station No. 164, were brought to table No 9. The first control unit, which recorded part of the votes, was opened and the votes recorded were noted. Thereafter, the second unit was opened for counting. This control unit, after showing the number of candidates as 12, stopped functioning. The counting officials decided to continue the counting with the other EVMs. In the meantime, the officers, in consultation with the Election Commissioner of India, decided to rectify the defective control unit with the help of engineers, but the defect could not be rectified. This control unit, after showing the number of candidates as 12, stopped functioning. The counting officials decided to continue the counting with the other EVMs. In the meantime, the officers, in consultation with the Election Commissioner of India, decided to rectify the defective control unit with the help of engineers, but the defect could not be rectified. As a result, votes recorded in these two control units were left out..............That as regards the statement made in para 7 of election petition, the deponent states that after completion of the sixteenth round of counting, when the counting process was on in Hall No 4, the control unit of polling station No. 196, in table No. 3, malfunctioned and, accordingly, the returning officer was informed about it..............It is true that while 18th round of counting was going on, the returning officer brought two engineers as authorized by the Election Commission, but the engineers could not fix the control unit and the control unit was kept on the returning officers table................... The actual/act in this regard is that the aforesaid control unit was inside the counting hall and, therefore, there was no question of reseating as the election petitioner, election agents and counting agents were present along with the other election candidates." (emphasis added) 48. PW2, Hassan All (Returning Officer) deposed, "The control unit of polling station No. 164 had gone out of order between 12 noon and 1 p.m. The controlling unit of polling station No. 196, which was in Hall No.4, went out of order at about 1 p.m." PW2 further deposed : "When counting of control units of polling station Nos.164 and 196 was suspended, /had not sealed the controlling units but had put them in respective carrying cases without sealing them." (emphasis added) 49. Exhibit 15, which is the record of proceedings of the opening of the EVMs, show that at about 6.44 pm, on 11.5.2006, the EVMS were opened, which proves, correctly submits Mr. Dutta, learned senior counsel, appearing on behalf of the election petitioner, that from 12 noon or 1.00 p.m. to 6.44 p.m., these control units remained unsealed. 50. Exhibit 15, which is the record of proceedings of the opening of the EVMs, show that at about 6.44 pm, on 11.5.2006, the EVMS were opened, which proves, correctly submits Mr. Dutta, learned senior counsel, appearing on behalf of the election petitioner, that from 12 noon or 1.00 p.m. to 6.44 p.m., these control units remained unsealed. 50. Coupled with the above, Sri Deepak Kumar Choudhury (witness No.9 for the respondent), Assistant Returning Officer, who was present in hall No. 4, where the controlling unit of the EVM, used at Polling Station No. 196, had malfunctioned, in his deposition, stated : "I do not know if the EVM has to be sealed, when the counting is suspended. I had, of course, asked the returning officer if I should seal the EVM, but the returning officer told me that since the engineers would examine the EVM, it need not be reseated." (emphasis added) 51. Thus, the controlling unit, with its EVM, used at Polling Station No. 196, remained without being resealed during the period, when counting of votes, in respect of the said Polling Station, remained suspended. This witness, namely, Deepak Kumar Choudhury, has further deposed that the Returning Officer, then, asked him to get the controlling unit carried to the Returning Officer's table, whereupon he put the controlling unit inside their carrying cases and get the same brought to, and placed, at the Returning Officer's table and while the EVM remained so placed at the table of the Returning Officer, the carrying case, wherein the control unit, used at Polling Station No. 196, claimed to have been kept, had not been put under lock and key. I may also pause here to point out that credibility of the evidence, given by this witness (Sri Dipak Kumar Choudhury), has been disputed by the election petitioner, while cross-examining the witness; whereas the petitioner's assertion, as regards the fact, which we have already discussed above, that the EVMs had been taken away to the office of the District Election Officer without having informed the election petitioner, his election agent and counting agents, has remained unchallenged and undisputed by the respondent. 52. Situated thus, it is the unchallenged and unassailed evidence of the election petitioner, which is, otherwise also, corroborated by the evidence of his witnesses and supported by the materials on record, which needs to be accepted. 52. Situated thus, it is the unchallenged and unassailed evidence of the election petitioner, which is, otherwise also, corroborated by the evidence of his witnesses and supported by the materials on record, which needs to be accepted. At any rate, what has come out of the evidence of even the respondent's witnesses, namely, Dipak Kumar Choudhury and Debajit Khanikar, both of whom are Assistant Returning Officers and have been examined as witness Nos. 8 and 9 respectively, is that none of the control units had been kept sealed and, as far as the EVM, including its control unit, used at Polling Station No. 196, is concerned, the same was also not kept under lock and key inside its carrying case, but was left on the table of the Returning Officer. There is no assertion from Dipak Kumar Choudhury that the EVM, used at Polling Station No. 196, which is claimed to have been placed by him on the table of the Returning Officer, remained lying there without being touched and/or removed by anyone until the time the engineers came and examined it after 4.30 p.m. Thus, the possibility of the EVM, used at Polling Station No. 196, having been tampered with cannot be confidently ruled out. In this regard, it is of utmost importance to note that as far as the controlling units, used at Polling Station No. 164, are concerned, the data, stored therein, could not be, admittedly, retrieved. The question as to whether the controlling units, used at Polling Station No. 164, had or had not been sealed and kept in safe custody, is not of great relevance except the admitted position that the said controlling unit were kept sealed during the period, when counting of votes in respect of the Polling Station No. 164 remained, as discussed above, suspended. So far as the controlling unit, used at Polling Station No. 196, is concerned, it is of great relevance to note as to whether the data, stored therein, could have been tampered and it is, for this reason, more important to note as to whether the lone controlling unit, used at Polling Station No. 196, was kept sealed in safe custody except during the period when counting of votes from Polling Station No. 196 had remain suspended. In this regard, there can be no doubt, as surfaced from the record, that the controlling unit, used at Polling Station No. 196, was never kept sealed or in safe custody and in the facts and attending circumstances of the present case, possibility of its tampering with cannot be boldly ruled out. This fact, by itself, is sufficient to hold that the sanctity of the data, stored in the controlling unit of the Polling Station No. 196, had been lost. 53. Even Sri Debajit Khanikar, Assistant Returning Officer (witness No. 8 for respondent), who was in Hall No.3, where control unit of polling station No. 164 malfunctioned and from which result could not ascertained, deposed: "The returning officer told us that the remaining counting should be continued and the EVM, which had started malfunctioning and which had been used at Polling Station No. 164, should be kept aside. I put the EVM into its carrying case along with both its control units and, then, I kept the carrying case inside a trunk and put a lock thereon. I kept the keys of the lock with me." (emphasis added) 54. It needs to be, now, pointed out that though the evidence on record, as given by Debajit Khanikar, Assistant Returning Officer (Witness No.8 for the respondent), is that the EVMs, used at Polling Station No. 164, were kept inside the trunk, though without sealing the same, there is no evidence at all on record to show that the EVM, used at Polling Station No. 196, too, was kept under lock and key. There is not even an iota of evidence on record to the effect that either the Returning Officer or any of the Assistant Returning Officers had kept the unsealed EVM, used at Polling Station No. 196, under lock and key or in safe custody, as had been done in the case of the control units, used at Polling Station No. 164. The evidence, given by Debojit Khanikar, Assistant Returning Officer, as regards keeping the unsealed EVMs, used at Polling Station No. 164, inside a trunk under lock and key, cannot be extended to contend that the EVM, used at Polling Station No. 196 too, had been kept under lock and key. The evidence, given by Debojit Khanikar, Assistant Returning Officer, as regards keeping the unsealed EVMs, used at Polling Station No. 164, inside a trunk under lock and key, cannot be extended to contend that the EVM, used at Polling Station No. 196 too, had been kept under lock and key. Far from this, the evidence on record speaks loud and clear that the EVM, used at Polling Station No. 196, had neither been sealed nor been kept in safe custody of anyone. In short, thus, while the two EVMs, used at Polling Station No. 164, had been kept (though without being sealed) inside, at least, a trunk under lock and key by Debajit Khanikar (Assistant Returning Officer), the control unit of the Polling Station No. 196, admittedly, remained without being resealed or locked throughout. There is also no evidence on record, I may reiterate, to show that the EVM, used at Polling Station No. 196, was ever kept in safe custody of any of the authorised persons. Thus, in contravention of the requirements of the provisions, embodied in rules 60, 66A read with rules 56C and 57C of the Rules of 1961, the two controlling units of the EVM, used at Polling Station No. 164, remained without being re-sealed, when counting of votes, recorded in the said EVM, had remained suspended. Similarly, in contravention of the requirement of the provisions embodied in rules 60, 66A read with rules 56C and 57C, the lone controlling unit of the EVM, used at Polling Station No. 196, too had been taken out of Hall No. 4 without being re-sealed and, during the period, when counting of votes from this controlling unit remained suspended, the EVM was neither kept sealed nor was kept placed in the safe custody of any authorised person. 55.1 may pause here to mention that according to the respondent, the counting, which began at 8.00 a.m. in both the counting halls, continued till the results were declared. From the materials on record, contends the respondent, it cannot be said that the counting ought to have been suspended and, hence, the rigours of rule 60 of the Rules of 1961 cannot be held to have been attracted and would not be applicable to the facts of the present case. 56. From the materials on record, contends the respondent, it cannot be said that the counting ought to have been suspended and, hence, the rigours of rule 60 of the Rules of 1961 cannot be held to have been attracted and would not be applicable to the facts of the present case. 56. I have already pointed out above that rule 60 of the Rules of 1961 provides that the Returning Officer shall, as far as practicable, proceed continuously with the counting and shall, during any intervals, when counting has to be 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 agent as may desire to affix their seals and take sufficient precaution for the safe custody during such intervals. 57. While considering the above submissions, it needs to be noted that rule 60 does not envisage only a situation, when counting, as a whole, is suspended. Even if the counting, in respect of a particular polling station, is required to be suspended, while allowing counting of votes polled at other polling stations to be continued, the period, during which the counting of votes polled at such polling station(s) remains suspended, the ballot papers, boxes and other papers, relating to the polling at such polling station, shall be kept sealed by the Returning Officer with his own seal and the seals of such candidates, or election agents, who may desire to affix their seals. This apart, rule 60 also obliges the Returning Officer to take necessary precaution for keeping the ballot papers, boxes and other papers relating to the election in safe custody. I may, now, pause here to point out that rule 66A of the Rules of 1961 provides for counting of votes, where Electronic Voting Machine (EVM) has been used and it provides that the provisions of rules 50 to 54 and rules 55C, 56C and 57C shall apply. Consequently, when EVMs are used in place of ballot papers, it would logically follow that the EVMs have to be kept sealed with its control units, if the counting of votes, as a result of malfunctioning of an EVM, is required to be. suspended. Rule 55C relates to scrutiny and inspection of voting machines. Rule 56C provides for counting of votes and rule 57C provides for sealing of voting machines. suspended. Rule 55C relates to scrutiny and inspection of voting machines. Rule 56C provides for counting of votes and rule 57C provides for sealing of voting machines. Notwithstanding, therefore, the contention of the respondent that, in the present case, the provisions of rules 50 to 54 have not been violated, none of the provisions contained in the Rules of 1961 have been violated and, hence, the provisions of rule 60, requiring sealing of the EVMs, cannot be said to have been attracted to the present case, it needs to be pointed out that when the materials on record are considered in the light of the provisions of the Rules aforementioned, what clearly emerges is that there has been clear contravention of the provisions of the Rules aforementioned. 58. In the present case, it is an admitted position that the EVMs, which were used at Polling Station Nos. 164 and 196, on developing malfunctioning, could not give the results of votes polled at the said polling stations and had to be kept suspended. The evidence on record, as discussed above, also show that the counting from these two EVMs remained suspended from about 12.00 noon to 5.30 p.m. and, during this period, the EVMs, particularly the one, which was used at Polling Station No. 196, remained lying unsealed without taking such precautionary measures as are warranted by rule 60 inasmuch the Returning Officer had not sealed the EVM, as required by rule 60, nor did he ask the candidates or their election agents to affix their seals, if they so desired. 59. This court, therefore, finds no substance in the contention of the respondent that rule 60, in the facts and circumstances of the present case, had not been violated. 60. What crystallizes from the above discussion is that in contravention of the requirements of the requirement of the provisions, embodied in rules 60,66Aread with rules 56C and 57C, the control units, particularly, the one, which matters, namely, the control unit, used at Polling Station No. 196, was, during the period, when counting of votes, recorded therein, remained suspended, was not kept sealed in safe custody. The issue Nos. (v) and (vi) stand answered accordingly. Issue Nos. (vii) and ix) 60A. Let me, now, deal with issue Nos. (vii) and (ix) inasmuch as both these issues are closely connected with each other. 61. The issue Nos. (v) and (vi) stand answered accordingly. Issue Nos. (vii) and ix) 60A. Let me, now, deal with issue Nos. (vii) and (ix) inasmuch as both these issues are closely connected with each other. 61. While considering this issue, it may be borne in mind that according to the evidence on record, as already held above, the control units, used at Polling Station No. 164, malfunctioned in Hall No. 3 in the sense that it could not give result. Thereafter, the control unit, used at Polling Station No. 196 and placed at Hall No. 4, too was found to have not been giving the result. The Returning Officer called some persons, who claimed to be engineers from the ECIL and, on examining the EVM, used at Polling Station No. 164, the engineers could not make the same functional. It is an admitted position, it may be noted, that as far as the EVM, used at Polling Station No. 164, is concerned, the same could not display complete result and the result, thus, could not be retrieved. As regards the EVM, used at Polling Station No. 196, it is claimed that the engineers of the ECIL rectified the defects in the control units of the EVM, used at Polling Station No. 196, and the result was displayed by the said control units. 62. The question, which arises, now, for consideration is : what the engineers had done and whether what they had done was permissible in law? Before proceeding further, it is of paramount importance to note is that Sri Debajit Khanikar (witness No. 8 for the respondent) has deposed, in his cross-examination, "The Election Commission of India had given all the counting agent a manual, which contained guidelines for handling and operating control units". 63. The manual provides for DO'S and DONT'S. The portion relevant for our purpose, reads as follows : "DONTS 1. Do not exert undue pressure on latches, hinges, etc. 2. Do not keep EVM near heater or other hot objects. 3. Molten sealing wax should not fall on the EVM while sealing. 4. Do not open by force the cover or doors of the various sections. 5. Do not try to open the top portion of the control unit (by unscrewing the screws). 6............................................. 7............................................" (emphasis added) 64. 2. Do not keep EVM near heater or other hot objects. 3. Molten sealing wax should not fall on the EVM while sealing. 4. Do not open by force the cover or doors of the various sections. 5. Do not try to open the top portion of the control unit (by unscrewing the screws). 6............................................. 7............................................" (emphasis added) 64. From a bare reading of the manual containing the guidelines as regard the handling and operation of the control units, it becomes clear that the manual, Handbook for Returning Officer, the ROP Act and the Rules of 1961 are totally silent and did not contain any direction as to what to do, when an EVM does not show any result during counting. In fact, in this regard, a question was specifically put to PW2 (Returning Officer) by the election petitioner and his reply was, "I do not know if, in the guidelines issued by the Election Commission of India or in the Representation of People's Act. 1951 or Rules, there is no provision regarding opening of EVM." 65. Bearing in mind the fact that there is no provision, in the ROP Act and/or in the Rules of 1961 and/or in the guidelines or instructions, issued by the Election Commission of India, as to what the Returning Officer shall do, when an EVM malfunctions and does not give result and, particularly, when there is no provision for opening of the EVM by any engineer or any other authority for the purpose of rectifying the defect, if any, so as to obtain the data, stored therein, for the purpose of counting, let me, now, deal, a little elaborately, with the evidence of the Returning Officer given in this regard. 66. The evidence of the Returning Officer is that when the two control units, used at Polling Station No. 164, and placed in Hall No. 3, did not give complete result, the counting, in respect of other polling stations, continued, the ECIL engineers were called, and though the engineers tried to retrieve the result of the control units, used at Polling Station No. 164, by pushing the result buttons, they did not succeed and, thereafter, the controlling unit of Polling Station No. 196, went out of order in Hall No. 4. 67. 67. The respondent too admits, in his written statement, as regards the control unit, used at Polling Station No. 196, that, thereafter, the control unit of the EVM, used at Polling Station No. 196 and placed in Hall No. 4, was found to have not been giving the result, when the result button was pushed, whereupon the Returning Officer informed the candidates and their representatives that while the counting, in respect of other polling stations would continue, the control unit of the EVM, used at Polling Station No. 196, would be examined after 20th round of counting, but, while the 18th round of counting was in progress, the Returning Officer brought two engineers and those engineers could not retrieve the result. The respondent further avers, in his written statement, that at about 4.30 p.m., the election officials called all the candidates, their election agents and counting agents to Hall No. 4 and informed them that the second control unit of Polling Station No. 164 and the control unit of Polling Station No. 196 would be opened by the ECIL engineers with a view to retrieve the result and, at that time, while the election petitioner raised his verbal objection against counting of votes from the said control units, the other candidates and their representatives did not raise any objection and following the objection, so raised by the election petitioner, to the opening of the control units, and having held discussions with the Election Observer, the District Election Officer and the ECIL engineers, the Returning Officer sent a fax message to Delhi seeking instructions from the Election Commission of India in this regard and, on receipt of reply from the Election Commission, a proceeding was drawn, with the object of opening the control units and that the said proceeding was signed by the election petitioner and also the respondent and, thereafter, the ECIL engineers opened the two control units of Polling Station No. 164 and also the control unit of Polling Station No. 196, but the complete result from the control units, used at Polling Station No. 164, could not be retrieved, whereas the result from the control unit of Polling Station No. 196 could bo retrieved. 68. 68. Thus, there is no dispute that when the counting was in progress, the two control units of the EVMs, used at Polling Station No. 164, did not give result, the engineers were called and it was thereafter that the control unit of the EVM, used at Polling Station No. 196, was also found to have malfunctioned and though the control unit of Polling Station No. 196, according to what the Returning Officer had announced, was to be examined by the ECIL engineers on completion of 20th round of counting, the candidates were called, at about 4.30 p.m., to Hall No. 4, by the Election Officials, when the 18th round of counting was in progress, and they were informed that the two control units, used at Polling Station No. 164, and also the lone control unit, used at Polling Station No. 196, would be opened by the ECIL engineers for retrieving the result, but the election petitioner objected to the counting of votes from the said control units, whereupon the Returning Officer discussed the matter with the Election Observer and District Election Officer and sent a fax message to Delhi seeking instructions from the Election Commission of India in this regard and, on receiving instructions from the Election Commission, the control units were opened and that a proceeding was drawn, in this regard, which was signed by all concerned and that on opening of the said control units, while the engineers could not retrieve the result from the control units, used at Polling Station No. 164, they could retrieve the result from the lone control unit used at Polling Station No. 196. 69. Bearing in mind the above admitted facts, let me, now, revert to the evidence of the Returning Officer (witness No. 2 of the election petitioner). His evidence is that while the counting was going on, the control units developed some defects, engineers were called to look into the control units and the engineers told that the 'capacitors' of the control units would have to be changed and that if the 'capacitors' were changed, the results would be displayed. The report, so given by the engineers, is proved as Exhibit 5. His further evidence is that acting upon the report (Ext. 5), he sought for instructions from the Election Commission of India, Delhi, by sending a fax message. The report, so given by the engineers, is proved as Exhibit 5. His further evidence is that acting upon the report (Ext. 5), he sought for instructions from the Election Commission of India, Delhi, by sending a fax message. Exhibit 6 is the copy of the fax message and, when the fax message was sent, counting was over except in respect of Polling Station Nos. 164 and 196. 70. However, at one stage of his examination, the Returning Officer has deposed, "Acting upon the Election Commission's instructions, dated 8.5.2006,1, at 10.50AM, asked the engineers to examine the controlling units, which had gone out of order. Exhibit 8 contains the said instructions. There is no other instruction received by us from the Election Commission as regards the utilization of engineer at the time of counting of votes"'. (emphasis added) 71. At yet another stage of his evidence, the Returning Officer has deposed, "I, therefore, sent a fax message, which is Exhibit 6. We received no instruction from the Election Commission to our fax message. I, then, talked, over phone, to Mr. Balakrishnan, Deputy Election Commissioner. Mr. Balakrishnan told us that we could take services of authorized engineer for the purpose of changing the 'capacitors'. The talks that we had with Mr. Balakrishnan were not confirmed, in writing, either by us or by the Election Commission. This telephonic conversation took place at about 4.30 p.m. This telephonic conversation was not video graphed. We had talked to Mr. Balakrishnan from the room of the DEO. After talking to Mr. Balakrishnan, we came to Hall No 4. Then, we made an announcement that our engineer would examine the EVMs of polling station Nos. 164 and 196. After the announcement was made, EVMs were brought from Hall No. 3 to Hall No. 4". 72. It is, now, important to note that a careful reading of Exhibit 8 shows that it is a communication, sent by the Election Commission India, informing the Returning Officer about the names of the EVM experts, who had been deputed by the Election Commission of India for counting of polls in Assam. 72. It is, now, important to note that a careful reading of Exhibit 8 shows that it is a communication, sent by the Election Commission India, informing the Returning Officer about the names of the EVM experts, who had been deputed by the Election Commission of India for counting of polls in Assam. It is, thus, abundantly clear that Exhibit 8 is only a communication sent long before the date of counting by the Election Commission to the Returning Officer, giving the names of persons, who had been detailed by the Commission, as EVM experts, for being used for counting of votes at the poll in Assam. Exhibit 8 never empowered the Returning Officer to direct the engineers to open the EVM. No wonder, therefore, that he (Returning Officer) received no specific instructions from the Election Commission of India, at any stage, allowing him to open the EVM or allowing him to utilize the service of the engineers to get the EVM opened. 73. The Returning Officer, however, claims that he got the EVM opened by the engineers on the basis of the instructions received by Mr. Balakrishnan, Deputy Election Commissioner, in this regard. It needs to be noted that Mr. Balakrishnan was only an official of the Election Commission of India and, he, not being the Election Commission, had apparently no authority to take any decision on his own. The authority, if any, to get the EVM opened and/or its part(s) changed lies, admittedly, with the Election Commission of India. This apart, in the face of the fact that there is no provision, as already discussed above, as regards opening of EVM, even Mr. Balakrishnan, an official of the Election Commission of India, cannot be said to have had the authority to allow opening of the EVM. Furthermore, what, at best, Mr. Balakrishnan had, according to the evidence of the Returning Officer himself, told him was that the engineers' service could be obtained by the Returning Officer for the purpose of changing the 'capacitors'. Thus, even Mr. Balakrishnan had not indicated to the Returning Officer, far less authorized him, to allow opening of the control units, nor had Mr. Balakrishnan had, according to the evidence of the Returning Officer himself, told him was that the engineers' service could be obtained by the Returning Officer for the purpose of changing the 'capacitors'. Thus, even Mr. Balakrishnan had not indicated to the Returning Officer, far less authorized him, to allow opening of the control units, nor had Mr. Balakrishnan indicated to the Returning Officer that parts from some other EVMs could be fixed to the defective EVM so as to retrieve the result and, curiously enough, the Returning Officer has conceded that he does not know personally as to what was changed by the engineers in the controlling units. 74. In the light of what have been pointed out above, let me, now, come to, and deal with, the evidence on record as to what the engineers had really done. 75. While considering the question as to what the engineers had done, it is necessary to recall that the returning officer has deposed, "We called our engineers to look into the controlling unit, which had developed the defects. Our engineers told us that the "capacitors" would have to be changed and if the "capacitors" are changed, the correct result would be displayed. The engineer, then, gave me a report in this regard. Ext 5 is the said report." 76. It is, now, necessary to note that Exhibit 5, which is the report of the engineers, does not state that 'capacitor' is to be changed. It merely mentions that there is some technical flaw and by opening the EVM, it can be set at right. Thus, what was required to be done to the EVM, for the purpose of rectifying the defects, had not been spelt out in the engineer's report, namely, Exhibit 5. 77. Be that as it may, the Returning Officer has deposed that acting upon the report, (i.e., Ext.5), he sought for instructions from the Election Commission of India by sending, in this regard, a FAX message, Ext. 6 being the said FAX message. This witness has also deposed, "I decided to take formal instructions from the Election Commission. I, therefore, sent a fax message, which is Exhibit 6. 6 being the said FAX message. This witness has also deposed, "I decided to take formal instructions from the Election Commission. I, therefore, sent a fax message, which is Exhibit 6. We received no instructions from the Election Commission to our fax message." Thus, as against the fax message, (i.e., Exhibit 6) sent to the Election Commission of India, seeking formally, Election Commission of India's permission, to open the EVM, no answer was received. What is also curious to note is that the Returning Officer, as already indicated above, does not know what the engineers did. Exhibit 9 is the report, which the engineers gave after opening of the control unit; but this report too, as rightly pointed out by Mr. Dutta, does not state what the engineers had done, how they had rectified the controlling unit, used at Polling Station No. 196, and what they had changed. In Exhibit 9 too, there is, thus, nothing to indicate that the engineers had merely examined or repaired the 'capacitors'. 78. In fact, the Returning Officer admits in his evidence that the ECIL engineers did not communicate, in writing, to him that they had changed the 'capacitors', which had enabled them to make the controlling unit operational or enabled them to retrieve the result stored in the said unit. The Returning Officer's helplessness, expressed in this regard, is glaringly noticeable, when I find him to have unhesitant admitted, "In fact, the engineers did not give me any report clearly specifying as to what they had changed in the controlling unit or the EVM. I do not personally know what was changed by the engineers in the controlling unit", (emphasis is added) Thus, it bears repetition that nobody knows - not even the Returning Officer - as to what has been changed in the controlling unit, in question, or what corrective measures had been taken by the engineers to make the controlling unit, used at Polling Station No. 196, functional. 79. The question, therefore, is as to what had been communicated by the Returning Officer to the Election Commission of India, seeking their permission to declare the result. 79. The question, therefore, is as to what had been communicated by the Returning Officer to the Election Commission of India, seeking their permission to declare the result. The Returning Officer, has deposed, in this regard, "Beyond the fact that the engineers had suggested that the 'capacitors' need to be changed and on changing the 'capacitors', the result would be available, I had not communicated to the Election Commission of India any other aspects of the failure of the EVM to display the results." 80. Thus, the Election Commission of India was never informed that either the "capacitor" was changed or that 'parts' of the EVM, used in Polling Station No. 196, had been changed or the "parts' thereof had been replaced by the 'parts' brought out from some other EVM, as would be revealed, when we proceed further with the evidence on record. 81. The Returning Officer claims that in response to his fax message (Exhibit 12) sent to the Election Commission of India, the Election Commission of India permitted him to announce the result by a fax message, which is Ext. 13. From a bare reading of all the messages, which have been exchanged between the Returning Officer and the Election Commission of India, including the Election Commission of India's authorization, which stands proved as Ext. 13, it is transparent that it had never been made known to Election Commission of India, at any stage, that the 'parts' of the EVM, in question, were changed or that 'parts' from the EVM, used in Polling Station No. 196, were replaced from the untested and untestified 'parts' of some other EVM. In fact, the Returning Officer himself admits, in his evidence, thus : "As per the instructions of the Election Commission, we were permitted to change only the 'capacitor' and nothing else. I can not say that the stored data were retrieved only by changing the 'capacitors'. Apart from changing this 'capacitor', I am not able to say what the engineers had changed, because I do not know the names of the changed parts of the EVM. The engineers did not tell me if they had changed any part other than the 'capacitors'. I do not know at all what effect the change of 'capacitor' in an EVM would have. The engineers did not tell me if they had changed any part other than the 'capacitors'. I do not know at all what effect the change of 'capacitor' in an EVM would have. I do not know if in the guidelines, issued by the Election Commission of India or in the Representation of Peoples Act, 1951 or Rules, there is no provision regarding opening of EVM. It is not fact that I surrendered my authority to the engineers of the ECIL and allowed them to change parts of the EVM other than the "capacitor's"." (emphasis added) 82. The Returning Officer's further evidence, given with regard to the above, is more revealing and disturbing inasmuch as he has deposed : "The parts were replaced by the engineers from the extra EVM, which we had. The extra EVMs were kept in another room of Cotton College. In the said room, there was no seal. With the extra EVMs, which we had brought in, no mock exercise was carried out to demonstrate to the persons, gathered at the place of counting, that the extra EVMs, brought by us, had no data already stored therein. When the EVM, used at polling station No 164, could not be made operational, the parts from the said extra EVM were also used for making the EVM of polling station No. 196 functional. The extra EVM was also opened." (emphasis added) 83. From the above evidence of the Returning Officer, what becomes crystal clear is that he does not know as to what 'parts' of the EVM of Polling Station No. 196 were changed in order to yield the result. What is also glaringly noticeable is that with the extra EVM, which had been brought to Hall No. 4, for the purpose of taking out 'parts' from there, no 'mock exercise' was carried out to demonstrate that the extra EVM, which was brought out from an unlocked room, had no data already stored therein. 84. There is, in fact, no evidence on record indicating as to how the results, as claimed, were retrieved. When the provisions of the ROP Act and the relevant Rules as well as the guidelines, issued by the Election Commission of India, did not make any provision for opening of an EVM, the EVM could not have been opened. 84. There is, in fact, no evidence on record indicating as to how the results, as claimed, were retrieved. When the provisions of the ROP Act and the relevant Rules as well as the guidelines, issued by the Election Commission of India, did not make any provision for opening of an EVM, the EVM could not have been opened. Far less, its 'parts' could not have been changed, especially from an EVM, which had not been tested and which had not been shown to the candidates to have no data already, stored in its 'parts'. No wonder, therefore, that at no stage of counting, any instruction was received from the Election Commission of India authorizing the Returning Officer to either get the EVM opened or its 'parts' changed, particularly, from an EVM, which is not shown to have no data stored therein before its 'parts' were changed and inserted inside the EVM of Polling Station No. 196. 85. Thus, the sanctity of the data, stored in the EVM of Polling Station No. 196, were completely lost, particularly, when the Returning Officer has admitted, in his evidence, that he had not received any instructions from the Election Commission of India allowing the engineers to either open the EVM or change the 'capacitors' or any 'parts' of the EVM, used at Polling Station No. 196, with such component taken out from any other EVM. The evidence of Returning Officer is more than clear that having received no instructions from the Election Commission of India in response to his fax message (Exhibit 6), he talked to the Deputy Election Commissioner, namely, Balakrishnan, and, on being advised by the Deputy Election Commissioner, he authorized the engineers to open the EVM. I have already indicated above that Mr. Balakrishnan was merely an official of the Election Commission of India and not the Election Commission and, hence, he had no authority to take any decision on his own, particularly, in a matter as grave as the present one, where the relevant rules and guidelines, issued by the Election Commission of India, did not authorize anyone to open an EVM for the purpose of retrieving the data stored therein. 86. There is yet another aspect of the case, which needs extremely careful consideration by this court. 86. There is yet another aspect of the case, which needs extremely careful consideration by this court. This aspect is that the engineers had, according to the evidence of the Returning Officer, done some soldering while setting right the EVM, in question. Did the Returning Officer communicate to the Election Commission of India that the engineers had done soldering to the EVM? The answer given by the Returning Officer, in his evidence, reads: "I had not communicated to the Election Commission of India that the ECIL engineers had done soldering to the EVM. (The witness adds that he did not think it necessary to communicate to the Election Commission of India that the ECIL engineers had done some soldering to the EVM)". 87. Mr. Dutta points out that as per Wikipedia, soldering generates heat as high as 450°C. When put to the learned counsel for the respondent, it could not be disputed that soldering does generate heat as high as 450°C. As regards soldering, the Returning Officer has deposed, "The engineers had opened the lower portion of the controlling units. They did some kind of soldering with the help of electricity. ***** ***** ***** I had not communicated to the Election Commission of India that the ECIL engineers had done soldering to the EVM". 88. It needs to be recalled, as already indicated at para 63, that the EVM is not to be kept near heater or other hot objects. The instructions, contained in the manual, clearly show that the top portion of the controlling unit is not to be opened by unscrewing the screws. Thus, neither the upper portion of the controlling unit could have been opened nor could any soldering been done. Notwithstanding the restrictions imposed that the EVM is not to be kept near the heater or any other hot object, the engineers were freely allowed by the Returning Officer to do soldering. Thus, the clear instructions, given by the Election Commission of India as to how an EVM shall be handled, were violated with impunity. 89. The EVM manual shows that the inner compartment of result section of EVM has 6 buttons including clear button. Material Exhibit 1 shows that the engineers, after opening the EVMs, pressed all the buttons. Thus, the clear instructions, given by the Election Commission of India as to how an EVM shall be handled, were violated with impunity. 89. The EVM manual shows that the inner compartment of result section of EVM has 6 buttons including clear button. Material Exhibit 1 shows that the engineers, after opening the EVMs, pressed all the buttons. Due to pressing of all the buttons by the engineers including the 'clear button', it becomes doubtful whether the actual recording of the votes in the said EVM really remained unaltered. Thus, whatever was being done by the Engineers, and were allowed to be done by the Returning Officer, were contrary to the instructions contained in the EVM manual. 90. Let me, now, come to another immensely important aspect of the entire process of opening of the EVM used at Polling Station No. 196. The sequence of events of opening of the EVMs, as has been deposed to by the Returning Officer, read as follows : "The engineer opened up the controlling unit of the polling station No 164. After more than half an hour, the engineer told us that they would not be able to rectify the controlling unit of polling station No. 164. Then, the engineer opened the controlling unit of polling station No. 196. "***** ***** ***** After the engineer gave their opinion that controlling unit of polling station No 164 would not be restored, we left the controlling unit at the place, where the said examination had taken place. The engineers, ther-, came to the table, where the controlling unit of polling station No. 196 had been kept." (emphasis is added) 91. Thus, the engineers, admittedly, opened the controlling unit used at Polling Station No. 196. 92. The Returning Officer's evidence further reads, "There was only one camera in the hall, where the said examination took place. We had not permitted any other camera inside the counting hall. No mobile phones were allowed inside the counting halls or at the place of examination of the said controlling units. Even at the time, when the EVMs were examined, no mobile phones were permitted inside the counting hall". As against the evidence, so given by the Returning Officer, the video recording, as displayed in the court, during the course of the proceedings of this election petition, clearly reveals use of mobile phone inside the counting hall. 93. Even at the time, when the EVMs were examined, no mobile phones were permitted inside the counting hall". As against the evidence, so given by the Returning Officer, the video recording, as displayed in the court, during the course of the proceedings of this election petition, clearly reveals use of mobile phone inside the counting hall. 93. With regard to the question as to how many video-cameras were used at the place of counting, the evidence of DW8 (Assistant Returning Officer) contradicts the Returning Officer inasmuch as DW 8 has deposed, "As far as I can recollect, there were two video cameras functioning". 94. Contradicting DW8 and supporting the evidence of Returning Officer, DW9 (Assistant Returning Officer) has deposed, "As far as I recollect, there was only one video camera inside the room". 95. The Returning Officer's further evidence with regard to use of the camera is, "To my knowledge, there was video recording of the process of examination, by the engineers, of the EVM, which was used at polling station No. 196". 96. Material Exhibit 1, video recording, shows recording by two video cameras inside the counting hall. However, the material Exhibit 1 does not contain opening of control unit of Polling Station No. 196. In the face of the fact that the video recording gives no indication as regards the opening of the controlling unit of Polling Station No. 196, I find considerable force in the submission, made on behalf of the election petitioner, that what had been recorded by the video recording machine, as regards the opening of the control unit of Polling Station No. 196, has been sliced away. This inference gets strengthened from the fact that the Returning Officer has proved M. Ext. 1 as a cassette, which has been handed over to him by the District Election Officer and which is claimed to contain video recording of the entire process of reopening of the EVMs. Surprisingly, however, the Returning Officer's evidence is that when the cassette was handed over to him, it was not sealed. The Returning Officer has deposed that it was at about 4 p.m. that as per his instructions, the process of counting was video graphed in the Hall Nos. 3 and 4. If Material Ext. Surprisingly, however, the Returning Officer's evidence is that when the cassette was handed over to him, it was not sealed. The Returning Officer has deposed that it was at about 4 p.m. that as per his instructions, the process of counting was video graphed in the Hall Nos. 3 and 4. If Material Ext. 1 was the video recording of the process of counting and when it has the record of opening of controlling unit of Polling Station No. 164, it is strange that M. Ext. 1 does not have the video recording of the opening of the controlling unit of Polling Station No. 196. The omission to produce the video recording of the opening of the EVM, used at Polling Station No. 196, clearly shows that the sanctity of the data, stored in the EVM at Polling Station No. 196, had been completely lost, because none knows as to what had really been done inasmuch as the Returning Officer, who announced the result, did not even know as to what had been done to the EVM and what had led to the retrieving of the result as claimed by the ECIL engineers. No reliance can, therefore, be placed on the votes, which are claimed to have been counted from the controlling unit of the EVM used at Polling Station No. 196. 97. What emerges from the above discussion is that there was complete violation of the provisions relating to the counting of votes stored in the EVM. Consequently, the votes, purported to have been polled at Polling Station No. 196, could not have been taken into account for the purpose of declaring the result of the election. This apart, as already indicated above, the votes, polled at Polling Station No. 164 too has not been taken into account and cannot be taken into account as the result of the polling, at the said two polling stations, is also not known. Thus, the votes, polled at none of the said two polling stations, can be taken into account or could not have been taken into account for the purpose of declaring the result. The issue Nos. (vii) and (ix) are, therefore, decided in the affirmative and against the respondent. Issue Nos. (iv) and (viii); 98. Let me, now, deal with the issue No. IV and issue No. VIII. The issue Nos. (vii) and (ix) are, therefore, decided in the affirmative and against the respondent. Issue Nos. (iv) and (viii); 98. Let me, now, deal with the issue No. IV and issue No. VIII. As both these issues are deeply interwoven, they are taken up together for discussion and decision. 99. While considering the two issues, in question, it deserves to be noted that section 100 of the ROP Act, reads as under : "100. Grounds for declaring election to be void. - (1) Subject to the provisions of sub-section (2) if the High Court is of the opinion - (a) *** *** *** (b) *** *** *** (c) *** *** *** (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected - (i) by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate (by an agent or other than his election agent) (iii) by improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules made under this Act." 100. In the light of the provisions of section 100(d)(iv), there is, indeed, substantial force in the submissions, made by Mr. A.K. Bhattacharjee, learned senior counsel, appearing for the respondent, that mere non-compliance of the provisions of the Constitution or of the ROP Act, or of any rules or orders made under the ROP Act, cannot make the High Court declare the election of the returned candidate void unless the result of the election, so far as it concerns the returned candidate, has been materially affected. 101. While considering the scope of section 100(d)(iv), it is necessary to recall that I have already pointed out above that there has been contravention of the provisions of rules 60, 66A read with rules 55C, 56C and 57C of the Rules of 1961. The instructions, which are issued by the Election Commission of India, would also fall within the expression 'orders' made under the ROP Act. The instructions, which are issued by the Election Commission of India, would also fall within the expression 'orders' made under the ROP Act. Considered in this light, it becomes clear that without any authority or power to open the EVM and to change the 'parts' thereof from an untestified and unverified EVM, as has been done in the present case, there has been complete contravention of the guidelines issued by the Election Commission of India and the entire sanctity of the data, stored in the EVM, which had been used at Polling Station No. 196, got, in the process, wholly lost. 101A. It, therefore, logically follows that the sanctity of the election process, which is required to be maintained and adhered to by all means by a Returning Officer, has been mutilated and violated, in the present case, leading to complete loss of sanctity of the stored data in the EVM, in question. 102. What must also be taken note of is that as far as the EVM, used at Polling Station No. 164, is concerned, where number of votes polled was 506, cannot be taken into account in favour of any of the candidates inasmuch as the EVM, used in Polling Station No. 164, could not, admittedly, give complete result. Similarly, when the EVM, used at Polling Station No. 196, has lost its sanctity and the stored data therein cannot be taken into account, it follows, as a corollary, that 684 numbers of votes, polled at Polling Station No. 196 too, are required to be kept excluded, while determining the result of the election, in question. If the votes, polled at Polling Station Nos. 164 and 196, are so kept excluded, as it ought to have been done by the Returning Officer and must be done now, the consequence is that as many as 1190 numbers of votes, polled at Polling Station Nos. 164 and 196, could not have been taken into account and cannot be taken into account for the purpose of determining the result of the election, in question. In such circumstances, there can be no escape from the conclusion that non-compliance of the provisions of the Act, the Rules and orders mentioned above have materially affected the result of the election, in question, in so far as it concerns the respondent, who was declared to have been elected as the returned candidate from No.52 Dispur LAC. In such circumstances, there can be no escape from the conclusion that non-compliance of the provisions of the Act, the Rules and orders mentioned above have materially affected the result of the election, in question, in so far as it concerns the respondent, who was declared to have been elected as the returned candidate from No.52 Dispur LAC. 103. One can also not ignore the fact that the difference in the margin of votes, between the election petitioner and the respondent, is, according to the result-sheet, 813. And the total number of votes, polled at Polling Station No. 164 and 196, is 1109. Thus, if the total number of votes, polled at the said two polling stations, are kept excluded, it becomes transparent that the total number of votes, polled at Polling Station Nos. 164 and 196, being larger in number than the difference of votes received by the election petitioner and the respondent, the result of the election must be held to have been materially affected. 104. Moreover, since it is not possible to ascertain, now, as to what would have been the result of the election, if the counting of votes, polled at the two polling stations, namely, Polling Station Nos. 164 and 196, could have been done correctly, one has no option but to conclude, and I do conclude, that the result of the election has been materially affected as a result of illegalities committed as already mentioned above. The issue Nos. (iv) and (viii) stand answered accordingly. Issue Nos. (x) and (xi): 105. Both these issues are inextricably connected with each other and are, therefore, taken up together for discussion and decision. 107. While considering the above issues, it may be noted that the election petitioner contends that the Election Commission of India ought to have directed fresh polls/re-poll in respect of both the Polling Stations, namely, Polling Station Nos. 164 and 196, by invoking its jurisdiction under section 58 of the ROP Act. The respondent, on the other hand, contends that the provisions, embodied in section 58, are not attracted to the facts of the present case. 106. 164 and 196, by invoking its jurisdiction under section 58 of the ROP Act. The respondent, on the other hand, contends that the provisions, embodied in section 58, are not attracted to the facts of the present case. 106. As regards the contention of the respondent that section 58 does not come into play in the facts of the present case, it is necessary to note that clause (a) read with clause (aa) of sub-section (1) of section 58 provides, inter alia, that if, at any election, any 'ballot box', used at a polling station, is accidentally or intentionally destroyed or lost, or is damaged or tampered with, to such an extent, that the result of the poll, at that polling station, cannot be ascertained, or any 'voting machine' develops a mechanical failure during the course of the recording of votes, the returning officer shall forthwith report the matter to the Election Commission and the Election Commission shall declare the poll, at that polling station, to be void and order a fresh poll at that polling station unless it is satisfied that the result of a fresh poll, at that polling station, will not, in any way, affect the result of the election or that the mechanical failure of the voting machine or the error or irregularity in procedure is not material. 107. In the case at hand, it is not known as to whether the Voting machines', in question, had developed mechanical failure on the day of counting or the 'voting machines' had already failed to correctly record the votes at the time, when the polling was taking place. This apart, a 'voting machine' stands, in the light of the provisions of section 61A, on the same footing as does a 'ballot box'. When the EVM stands on the same footing as a ballot box, it logically follows, in the present case, that either the EVMs, used at Polling Station Nos. 164 and 196, had developed mechanical failure during the course of recording of the votes, as envisaged by Clause (aa) of sub-section (1) of section 58, or the control units of the EVMs, used at the said two polling stations, were accidentally or intentionally destroyed or lost, or damaged or tampered with, and the correct result of the poll, in respect of the said two polling stations, could not have been ascertained. In either case, therefore, fresh poll ought to have been ordered by the Election Commission. 108. Coupled with the above, Section 64A clearly lays down as follows : "64A. Destruction, loss, etc., of ballot papers at the time of 'counting. -(1) If at any time before the counting of votes is completed, any ballot papers, used at a polling station are accidentally or intentionally destroyed or lost or are damaged or tampered with, to such an extent that the result of the poll, at that polling station, cannot be ascertained, the returning officer shall forthwith report the matter to the Election Commission. (2) Thereupon, the Election Commission shall, after taking all material circumstances into account, either - (a) direct that the counting of votes shall be stopped, declare the poll at that polling station to be void, or (b) if satisfied that the result of a fresh poll at that polling station or place will not, in any way, affect the result of the election, issue such directions to the returning officer as it may deem proper for the resumption and completion of the counting and for the further conduct and completion of the election in relation to which the votes have been counted." 109. From what section 64A provides, it clearly emerges that if one reads Voting machine' in place of the words, 'ballot papers', as appear in section 64A, what would follow is that if at any time before the counting of votes is completed, any Voting machine', used at a polling station, is accidentally or intentionally destroyed, or lost or is damaged or tampered with, to such an extent that the result of the poll, at that polling station, cannot be ascertained, the Returning Officer shall forthwith report the matter to the Election Commission, whereupon the Election Commission shall, after taking all material circumstances into account, direct that the counting of votes shall be stopped, declare the poll at that polling station, to be void unless it is satisfied that the result of a fresh poll, at that polling station, will not, in any way, affect the result of the election. 110. In the case at hand, the EVM, used at Polling Station No. 164, could, admittedly, give no result. 110. In the case at hand, the EVM, used at Polling Station No. 164, could, admittedly, give no result. In such circumstances, the counting of votes, in respect of the said polling station, ought to have been stopped and a fresh poll ought to have been ordered in respect of the said polling station. 111. So far as the EVM, used at Polling Station No. 196, is concerned, the Returning Officer did not keep the EVM sealed and in safe custody during the period, when the counting was kept suspended, and he did not obviously inform the Election Commission of India that during the period, when counting of votes from the said EVM was kept suspended, no precaution, as required, was taken by him to ensure that the EVM is not tampered with nor did he inform the Election Commission of India that the engineers had changed the 'parts' of the EVM and that the data, recorded therein, had lost their sanctity completely. 112. Had the full picture been brought to the notice of the Election Commission of India, the situation would have been different inasmuch as the Election Commission of India was bound, in such a case, to order a fresh poll at Polling Station No. 196 too for the simple reason that the result of the poll, held at Polling Station No. 196, ought to have been treated as indeterminable. 113. Due to the failure of the EVM, used at Polling Station No. 164, to give the result and, in consequence of the fact that the counting of the votes, polled at Polling Station No. 196, had lost its sanctity and the correct number of votes, being polled in favour of each of the candidates (who participated in the said election), being indeterminable, the result of the election ought to have been held, and must be, now, held, to have been materially affected and these facts did call for fresh polls to be held at the said Polling Station. 114. The respondent has cited various situations to indicate that, in the present case, viewed from any angle, the result of the election cannot be said to have been materially affected. 114. The respondent has cited various situations to indicate that, in the present case, viewed from any angle, the result of the election cannot be said to have been materially affected. Suffice it to point out, in this regard, that it is not possible to enter into any speculation and surmises as to who, at the said two polling stations, the voters might have voted for, when the data, stored in the control units of the EVMs, cannot be taken into account and no clue can be gathered to legally ascertain as to what the voters of the said two polling stations had really decided. 115. Thus, the mechanical failure of the EVMs, used at Polling Station Nos. 164 and 196, warranted directions for fresh poll, at the said two Polling Stations, by invoking the provisions contained under section 58 and section 64Aof the ROP Act. 116. The Election Commission of India ought to have, therefore, ordered a fresh poll at both the said polling stations. The failure of the Election Commission to exercise the powers vested in it, under section 58 as well as under section 64A, can be attributed to the failure on the part of the Returning Officer, to lay before the Election Commission complete information. Because of the omission, on the part of the Election Commission, to exercise its powers under the provisions of section 58 and section 64A of the ROP Act, the result of the election cannot be sustained and it must be declared as void. 117. The issue Nos. X and XI stand accordingly answered in the affirmative. Issue Nos. XII and XIII 118. From the discussions, held above, and the conclusions reached, on earlier issues, it clearly surfaces that the declaration of the result of the election, made in favour of the respondent was, wholly illegal and must be held to be void and, in consequence thereof, a declaration is needed to be made by this court in the present election petition that fresh polls ought to have been ordered and must, now, be directed at Polling Station Nos. 164 and 196 of No.50 Dispur LAC. 119. In the result and for the reasons discussed above, as a whole, it is hereby held and declared that the election of the respondent from No. 50 Dispur LAC is void and fresh polls are accordingly directed to be held at Polling Station Nos. 164 and 196 of No.50 Dispur LAC. 119. In the result and for the reasons discussed above, as a whole, it is hereby held and declared that the election of the respondent from No. 50 Dispur LAC is void and fresh polls are accordingly directed to be held at Polling Station Nos. 164 and 196 of No.50 Dispur LAC. The Election Commission of India shall accordingly take necessary steps for ordering and holding fresh polls at the polling stations aforementioned. 120. With the above observations and directions, this Election Petition shall stand disposed of. 121. In the facts and attending circumstances of the present case, I leave the parties to bear their respective costs.