Suresh Prasad Yadav Vs. Jai Prakash
Mishra & Ors  INSC 271 (13 December 1974)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1975 AIR 376 1975 SCR (3) 21 1975
SCC (4) 822
RF 1975 SC2117 (13)
Election Law-Recount of Ballot papers-Court,
when justified in ordering recount.
Conduct of Election Rules, Rules 38(1) and
93(1)-Custody of "Unused ballot papers" with District Election
Officer a post-election custody-Opening of packet and inspecting and counting
of unused ballot papers, if illegal.
In the election from 168-Katoria Bihar
Legislative Assembly constituency, the Respondent No. 1 was declared elected
having secured 16649 votes as against 16074 polled by the appellant. The votes
rejected as invalid were 1219. The appellant filed an election petition
challenging the election of the returned candidate on the ground that several
irregularities and illegalities were committed in the counting of votes. The
petition was resisted by the returned candidate. The High Court framed issues,
recorded the evidence produced by the parties and held that the allegations had
not been substantiated. It declined the request for a recount and dismissed the
petition. Hence this appeal by the petitioner.
It was contended for the appellant : (i) Four
unauthorised persons were allowed to work as Counting Supervisors at tables 4,
5, 7 and 9 in breach of the rules and this had vitiated the counting, (ii) When
the fact, that, 50 unsigned ballot papers relating to polling station No. 74
were in excess of those actually polled, was brought to the notice of the
Assistant Returning Officer, he, in violation of Rule 93(i) of the Conduct of
Election Rules and to cover up the irregularity, opened that packet and inspected
those unused ballot papers; (iii) The detailed result sheet prepared table wise
in accordance with the instructions of the Election Commission has been
deliberately suppressed to prevent detection of mistakes and manipulations made
in the counting, and (iv) Despite protest, 600 votes were counted twice in
favour of Respondent No. 1.
Rejecting the contentions and dismissing the
HELD : The court would be justified in
ordering a recount of the ballot papers, only where :
(1) the election-petition contains an
adequate statements of all the material facts on which the allegations of
irregularity or illegality in counting are founded.
(2)On the basis of evidence adduced such
allegations are prima facie established, affording a good ground for believing
that there has been a mistake in counting and;
(3) the Court trying the petition is prima
facie satisfied that the making of such an order is imperatively necessary to
decide the dispute and to do complete and effectual justice between the
parties. [23H; 24A-B] (i) There is not even an oblique hint in the election
petition that any unauthorised person was allowed to act as Counting
Super-visor or Counting Assistant. It was made at the stage of final arguments
in the application seeding a recount. Questioning the Returning Officer and the
Assistant Returning officer in this regard during cross- examination, could
hardly constitute an adequate notice to the Respondent of this new plea. That
apart, neither the petitioner nor his chief Counting Agent alleged anything of
this kind. All the four persons are Govt. Officials. The fact that their names
do not appear in Ex. 6 does not exclude the probability of their having been
appointed and kept in reserve by a separate order or orders to act as counting
Supervisors in case of need. That such appointments were made and a waiting
list was prepared is disclosed in the evidence of the Returning Officer, and it
receives further support from the Evidence of R.W. 18 22 and R.W. 19. The
circumstances of this case fully attract the maxim omnia praesumuntur rite esse
acta, and it would be presumed that the aforesaid four persons were rightly and
regularly appointed and admitted into the Counting Hall to act as Counting
Supervisors, by the Returning Officer. On this score no violation of Rule 53 or
any other statutory provision has been established. [24F-H; 24A-E] (ii) The act
of the Returning Officer in opening the packet, and inspecting and counting the
unused ballot-papers found the-rein, far from amounting to an illegality, was
necessary for the due performance of the duty enjoined on him by the Rules. The
language of Rule 93 is clear enough to indicate that the custody of the
District Election Officer or the Returning Officer spoken of in the Rule is a
postelection custody. Indeed, in the present case, an objection was raised that
fifty unused ballot papers in the packet did not bear the mark or signature
required by Rule 38(1). The Returning Officer was therefore, fully competent to
open the packet and inspect and count the ballot papers found therein. [28F; C]
(iii) The absence of a detailed result-sheet showing table wise figures of each
round of counting does not make the verification of the figures collated in the
final result sheet drawn up in Form 20, impossible or even difficult as such
figures can always be checked with the aid of Check Memos which contain table wise
figures of each round. [29G-H] (iv) In the application for a recount submitted
to the Returning Officer, the appellant alleged that 600 votes constituting one
bundle, have been "recounted again". But it was not alleged therein,
even in an embryonic form, that 600 uncounted votes in bundles were detected
lying underneath the table of the Assistant Returning Officer.
Such an allegation appeared for the first
time in the election petition filed 33 days later. The original allegation was
untenable because such an excess was not reflected in the grand total of the
result sheet. The total was correct. The result sheet falsified the subsequent
contention also which had been put forward as an afterthought. [30F-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 208 of 1973.
From the Judgment and order dated the 25th
September, 1973 of the Patna High Court in Election Petition No. 4 of 1972.
K. K. Prasad, K. K. Sinha and S. K. Sinha for
K. P. Varma, D. P. Mukherjee and D. Goburdhan
for respondent No. 1.
U. S. Prasad for respondent No. 3.
The Judgment of the Court was delivered by
SARKARIA, J. Election from 168-Katoria Bihar Legislative Assembly Constituency
took place in March, 1972. The poll was held on March 11, 1972 and the votes
were counted on March 12, 1972. Respondent No. 1 herein, an independent
candidate, %-as declared elected having secured 16649 votes as against 16074
polled by the appellant, a nominee of Indian National Congress (R). There were
three other candidates (Respondents 2 to 4) who secured 2347, 8001 & 1542
votes respectively. The votes rejected as invalid, were 1219.
On April 14, 1972, the appellant filed an
election petition under the Representation of the People Act, 1951 challenging
the election of the returned candidate on the ground that several
irregularities and illegalities were committed in the counting of votes.
The petition was resisted by the returned
candidate. The High Court framed issues, recorded the evidence produced by the
parties 23 and held that the allegations had not been substantiated.
It declined the request for a recount and
dismissed the petition. Hence this appeal by the petitioner.
Mr. Prasad, learned Counsel for the appellant
contends that the following irregularities/illegalities in the counting had
been established :
(1) Four unauthorised persons, viz., Ajudhya
Prasad Singh, Q. M. Zaman, Parvez Ahmed and Radhey Sham Sah were allowed to
work as Counting Supervisors at tables 4, 5, 7 and 9 in breach of the rules,
and this had vitiated the counting.
(2) In the first round of counting at table
No. 4 in the box relating to polling station No. 74, Madhopur U.P. School, 50
unsigned ballot papers were found in excess of those actually polled. When this
was detected and brought to the notice of the Assistant Returning officer, he,
in violation of Rule 93(1) of the Conduct of Election Rules (for short, called
the Rules) and to cover up the irregularity, opened that packet and inspected
those unused ballot papers.
(3) The detailed result-sheet which was inter
alia prepared table wise, in accordance with the instructions of the Election
Commission, has been deliberately suppressed to prevent detection of mistakes
and manipulations made in the counting.
(4) About 600-700 uncounted ballot papers in
bundles were kept below his table by the Assistant Returning Officer. In the
final round of counting, despite protest, 600 votes were counted twice, in
favour of Respondent No. 1. That was why the petitioner who at the end of the
third round was leading by a margin of 2205 votes, was shown having lost by 575
votes to Respondent No. 1, notwithstanding the fact that in the last round
there were only 3800 ballot papers to be counted.
Before dealing with these contentions, we may
recall, what this Court has repeatedly said, that an order for inspection and
recount of the ballot papers cannot be made as a matter of course. The reason
is two-fold. Firstly such an order affects the secrecy of the ballot which
under the law is not to be lightly disturbed. Secondly, the Rules provide an
elaborate procedure for counting of ballot papers. This procedure contains so
many statutory checks and effective safeguards against trickery mistakes and fraud
in counting, that it-can be called almost fool-proof. Although no, hard and
fast rule can be laid down, yet the broad guidelines, as discernible from the
decisions of this Court, may be indicated thus:
The Court would be justified in ordering a
recount of the ballot papers, only where:
(1) the election-petition contains an
adequate statements of all the material facts on which the allegations of 24
irregularity or illegality in counting are founded;
(2). On the basis of evidence- adduced such
allegations are believing that there has been a mistake in counting prima facie
established, affording a good ground for and (3) the Court trying the petition
is prima facie satisfied that the making of such an order is imperatively
necessary to decide the dispute and to do complete and effectual justice
between the parties.
The contentions advanced in this case are to
be tested in the light of these principles.
Since, on the whole, we agree with the
findings and the conclusion of the court below, we will confine the discussion
to the broad features of the case and the legal aspects of the contentions
canvassed before 'US.
The first contention is that four
unauthorised persons were allowed to act as Counting Supervisors at tables Nos.
4, 5, 7 and 9. The argument proceeds that the list of all the persons who were
appointed as Counting Supervisors/Counting Assistants, was summoned from the
office of the District Election Officer, and in response thereto, the list Ex.
6, has been produced. It is argued that since the names of Ajudhya Prasad
Singh, Q. M. Zaman, Parez Ahmed and Radhey Sham Sah do not find mention in Exh.
6, they were never appointed to act a,-, Counting Supervisors. In this
connection, reference has been made to the application filed on April 14, 1972,
by the petitioner for summoning documents, the list Ex. 6, and the Check Memos
(Ex. C/3, Ex. C/4, Ex. C/6 and Ex. C/8). The Check Memos show that the
aforesaid persons actually supervised the counting at tables Nos. 4, 5, 7 and
It may be noted that there is not even an
oblique hint in the election petition that any unauthorised person was allowed
to act as Counting Supervisor or Counting Assistant.
Such an allegation was made for the first
time in the application, dated 3-7-1973. This application seeking a recount was
made at the stage of final arguments, after the parties had closed their
evidence. It is true that in cross-examination the Returning Officer and the
Assistant Returning Officer were questioned by the Counsel for the petitioner
with regard to the authorisation of these persons to act as Counting
Supervisors. But that could hardly constitute an adequate notice to the
Respondent of this new plea which was sought to be smuggled into the case in a
questionable manner at the belated stage. The Respondent could be justified in
assuming that the evidence on this plea which was not even faintly adumberated
in the petition nor put in issue would not be looked into by the Court.
In any case at that stage the Respondent had
no opportunity or right to produce evidence to show that apart from 'the list.
Exh. 6, there was other record showing that
the aforesaid persons were duly appointed by the Returning Officer to act as
25 Be that as it may, it has not been shown
that these four persons who took part in the counting, were unauthorised
persons. It is not disputed that the are all Government officials. The mere
fact that their names do not appear in Exh. 6 does not exclude the probability
of their having been appointed and kept in reserve by a separate order or
orders to act as Counting Supervisors in case of need.
That such appointments were made and a
waiting list of such appointees in reserve was prepared, is clear from the
answer that the Returning Officer (R.W. 14), Mr. Sinha, gave to a Court
question "If an officer of this list did not turn up in time to
participate in the counting then in his place another officer had to be
appointed from the waiting list that was maintained in my office regarding this
matter. That waiting list contained the names of officers reserved whose
services were to be utilised in case, any of the appointed officer did not turn
up or %--as subsequently exempted from working as such inside the counting
hall." In reply to a further question put by the petitioner's Counsel, the
Returning Officer reiterated "There was a reserved list like this in my
office regarding this matter which had been prepared under my orders." The
fact that such a list of officials in reserve was prepared and exists receives
further support from the evidence of R.W. 18 and R.W 19 who had worked as
Counting Supervisors at tables Nos. 6 and 3. respectively.
The petitioner appeared in the witness-box as
P.W. 19 on 7- 5-1973. Even then he did not make any allegation that any
unauthorised persons had been admitted into the Counting Hall. His Chief
Counting Agent who appeared as P.W. 13, also did not allege anything of this
kind. The circumstances of this case fully attract the maximum omnia
praesumuntur rite esee acta, and it would be presumed that the aforesaid four
persons were rightly and regularly appointed and admitted into the Counting
Hall to act as Counting Supervisors, by the Returning Officer. On this score no
violation of Rule 53 or any other statutory provision has been shown.
Now we turn to the second contention of Mr.
Prasad. The argument is that at the first round of counting in the box of
Polling Station No. 74 (Madhopur), fifty unsigned ballot papers were found in
excess of those polled. This irregularity, it is submitted, was brought to the
notice of the Returning Officer by Prof. Yadav, the Chief Counting Agent of the
appellant, but to-no avail.
Part I of Ex. 4 is the Ballot Paper Account
sent by the Presiding Officer of Polling Station No. 74. Its Part 11 contains
the result of the initial counting of those ballot- papers at table No. 4. In
Part 1, in column No. 2(a), the number of unused ballot papers is shown as 397,
and in column 3, the number of ballot papers issued to voters is given as 323.
In Part 11, column 1, the total number of ballot papers found 26 in the ballot
box used at the polling station, is entered as 373, and in column 2, captioned
Discrepancy, if any etc.', it is written "Found fifty excess including one
ballot paper unsigned". The entries in columns 1 and 2 of Part II purport
to bear the signature of the Counting Supervisor, R. Shyam Sah who was not
examined by either side.
It is common ground that when this
discrepancy was brought to the notice of the Assistant Returning Officer and
the Returning Officer, the sealed packet of the unused ballot papers was opened
and the papers were counted. The result of that count is to be found noted on
the back of Ex. 4 by the Assistant Returning Officer, thus :
"On verification by counting the actual
number of unused ballot-papers by opening the statutory packet in presence of
the Returning Officer and the candidates,/agents, it was found that only 347
unused ?) ballot papers have been returned. This settles the discrepancy in the
ballot paper account." Under it is the endorsement of the Returning
Officer to the effect "This was done by (A.R. O?) in my presence."
The Assistant Returning Officer stated in the witness-stand as R.W. 13, that in
the Ballot paper Account, the total number of unused ballot-papers was wrongly
shown as 397, while it should have been 347, which was the actual number of
ballot-papers found in the packet. Thus, the physical verification revealed
that this apparent discrepancy did not actually exist.
The court below has accepted the genuineness
of the endorsements of the Assistant Returning Officer (R.W. 13) and the
Returning Officer (R.W. 14) on Ex. 4 and the evidence of those officers in
preference to the, interested statements of the Counting Agent (P.W. 9) and the
Chief Counting Agent (P.W. 13) of the petitioner. It has also found that only
one unused ballot-paper was found unsigned, and not fifty. We have no good
reason to differ from those findings.
Indeed the main burden of the arguments of
Mr. Prasad, is that the Assistant Returning Officer/Retarning Officer was not
competent to open the packet of unused ballot-papers and inspect the same as
such a course was expressly forbidden by Rule 93 (1) of the Rules. It is
stressed that this illegality vitiating the counting, was itself a good ground
for ordering a recount.
Rule 93 reads "Production and inspection
of election papers.- (1) While in the custody of the district election officer
or, as the case may be, the returning officer- (a) the packets of unused ballot
papers with counterfoils attached thereto;
(b) the packets of used ballot papers whether
valid, tendered or rejected;
27 (c) the packets of the counterfoils of
used ballot papers;
(d) the packets of the marked copy of the
electoral roll or, as the case may be, the list maintained under sub-section (1)
or sub- section (2) of section 152; and (e) the packets of the declaration by
electors and the attestation of their signature;
shall not be opened and their contents shall
not be inspected by, or produced before, any person or authority except under
the order of a competent court.
(2) Subject to such conditions and to the
payment of such fee as the Election Commission may direct,- (a) all other
papers relating to the election shall be open to public inspection;
and (b) copies thereof shall on application
(3) Copies of the returns by the returning
officer forwarded under rule 64, or as the case may be, under clause (b) of
sub-rule (1) of rule 84 shall be furnished by the returning officer, district
election officer, chief electoral officer or the Election Commission on payment
of a fee of two rupees for each copy.
For understanding the import and object of
Rule 93, it would her appropriate to have a short and swift glance at the
scheme of them Rules.
Part V of the Rules makes provision with regard
to "Counting of Votes in Parliamentary and Assembly Constituencies."
It cover&. Rules 50 to 66. Part VI relates to "Voting at Elections by
Assembly Members and in Council Constituencies"'. It includes Rules 67 to
70. Part VII provides for "Counting of votes at Elections by Assembly
Members or in Council Constituencies". It contains Rules 71 to 85.
It will be, seen that Rule 93 has not been
placed in any of the Parts relating to counting of votes. It seems to have been
advisedly placed' in Part TX captioned "Miscellaneous", which in the
serial order comes after the Parts dealing with voting and counting of votes.
Viewed in the light of the scheme of the
Rules, and its setting, the language of Rule 93 seems to us clear enough to
indicate that the custody of the District Election Officer or the Returning
Officer spoken of in the Rule is a post- election custody. Such an indication
is available in the words "unused ballot papers" which repeatedly
occur in this rule. The word "unused" in the context means that which
"was made available for use in the election but remained unused in the
election". Sub-rule (3) of the Rule enables the authorities mentioned
therein to issue copies of the returns forwarded by the Returning Officer under
Rule 64 or Rule 84(1) (b). The supply of such copies will obviously be a
28 Any other interpretation of Rule 93 and
its scope would make it difficult, if not altogether impossible, for the
Returning Officer to perform-the various functions and duties enjoined by the
rules at the stage of counting. This will be clear from a reference to the
other Rules. Take for instance Rule 56 which requires that the ballot papers
shall first, be taken out from the boxes used in a constituency and mixed
together and then arranged in convenient bundles and scrutinised. Subrule (2)
of Rule 56 further requires inter alia that if a ballot paper does not bear any
mark at all or does not bear both the mark and the signature which it should
have borne under the provisions of sub-rule (1) of Rule 38, it shall be
rejected by the Returning Officer. To perform this duty it would be absolutely
necessary for the Returning Officer to inspect such ballot papers. Indeed, in
the present case, in ,objection was raised that fifty unused ballot papers in
the packet did not bear the mark or signature required by Rule 38(1). The
Returning Officer was therefore, fully competent to open the packet and inspect
and count the ballot papers found therein.
Instruction 23 in the Hand Book issued by the
Election Com- mission, also indicates that R. 93(1) operates at a post-
election stage. Under this instruction, the Returning Officer is required to
seal the packets of all the papers relating to the election, specified in
Clauses (a), (b), (c), (d) and (e) of R. 93(1) immediately after the counting
of the votes is over, with his own seal and also with that of the Commission.
After the: sealing, the packets are to be put in a separate steel box which
shall be locked with two locks and each lock shall be sealed. Immediately after
the declaration of the election results the sealed box is to be dispatched to
the District Election Officer who on receipt of the same shall forthright
deposit it in safe custody in the Treasury under double-lock. The key of one of
the locks is entrusted to the Treasury Officer. In Union Territories such a
deposit is to be made by the Returning officer. The secret seals of the
Commission are returned immediately after their required use. Thus, it is clear
that the custody contemplated by Rule 93(1) is the post- election custody.
In the light of the above discussion, the
conclusion is inescapable that the act of the Returning Officer in opening. the
packet, and in inspecting and counting the unused ballot-papers found therein,
far from amounting to an illegality, was necessary for the due performance of
the duty enjoined on him by the Rules.
Accordingly, we overrule this contention.
It is urged that the detailed result-sheet,
prepared candidatewise, table-wise and roundwise, from which figures mentioned
in the final result sheet (Exh. 7) were extracted has been deliberately
withheld to prevent detection of the hanky panky done in the counting. Such a
detailed result sheet, it is maintained, was required to be prepared-and was
admittedly prepared-under instruction No. 17(q) in the Hand Book for Returning
Officers (1970)" issued by the Election 'commission.
The contention appears to be attractive but
does not stand a close examination.
29 Instruction 17(q) in the Hand-Book runs
thus "Side by side, the work of tabulating the result of counting shall be
done. The Check Memos duly signed by the Returning Officer shall be passed on
to an officer seated at a separate table near the Returning Officer/Assistant
Returning Officer. This officer shall fill in the result of counting of each
round of each table in Form 20. It is desirable that a separate sheet for each
round is used for the purpose. Copies of Form 20 may be printed, cyclostyled or
The entries in the form should be made on
loose sheets prepared for the purpose. A copy of Form 20 is at Annexure
XIII." A perusal of Form 20 prescribed under rule 56(7) of the Rules would
show that, it does not require that the final result-sheet should be prepared table
wise, also. It is sufficient if the final result sheet is candidate-wise and
round-wise. The final result sheet (Exh. 7) exactly conforms to the prescribed
The Assistant Returning Officer (R.W. 13) in
cross examination said :
"On the above table where the entries
used to be made in the result sheets from the check- memos, those entries were
made candidate-wise, table-wise and round-wise. The figures of total votes of
the different rounds of counting, as mentioned in this abstract result sheet,
Exh. 7, (the witness looks into it) were not directly taken from the figures as
they found mention in the different check- memos of the different tables of the
different rounds of counting, but from these check memos the figures were first
extracted on the detailed result sheet giving their numbers round-wise,
candidate-wise and table-wise and thereafter those figures were totaled round-
wise and extracted in this Exh. 7." From the statement of R.W. 13
extracted above, it would appear that at first a detailed result sheet in which
figures were tabulated candidatewise, table wise and round wise was I prepared,
and then, there from, all the figures, excepting.those showing-table-wise
break-up, were carried over to the final result sheet, Exh. 7, drawn up in the
prescribed Form 20. This detailed result-sheet, though summoned, is not
forthcoming from the District Election Officer might be, it hag been misplaced.
Might be, it was destroyed by the Counting Staff after the preparation of the
final result-sheet in the prescribed Form. Whatever be the case, the absence of
that document, does not make the checking and verification of the figures
entered in the final result sheet, Exn. 7 impossible or even difficult.
Its preparation is not a requirement of any
statutory provision. It is prepared only as a matter of convenience in view of
the instructions of the Election Commission, by carrying over, collating and
totalling the figures from the Check Memos containing table wise figures of
each round of counting. It is a sort of rough intermediary tabulation intended
to facilitate the compilation of the final result- sheet in the prescribed
form. The basic figures from which the final result-sheet, whether detailed or
abstracted, are worked out are 30 given in the Check Memos pertaining to the
various counting tables. ,Such Check Memos are available and indeed reference
to some of them namely, Exh. C/3, C/4, C/6 and C/8 was specifically made before
us. 'The correctness or otherwise of the figures given in Ex. 7 could easily
'be verified by tallying the same with the aggregate of those given in the
Check Memos. Indeed, no argument has been advanced before us that the figures
given in the final result sheet, Ex. 7, would not agree with the figures taken
and totalled from the Check Memos.
We therefore, repel this contention.
This bring us to the last contention. The
argument advanced by Mr. Prasad is that during the fourth round of counting,
600 to 700 unused and uncounted ballot papers in bundles of 25 each were
detected by the petitioner's counting agent, Jagannath Sah, lying under the
table of the Assistant Returning Officer. Jagannath Sah protested. The
Assistant Returning Officer, however, put those uncounted ballot papers in the
lot of counted votes. P.W. 13 also, on coming to know about it, protested
against that mixing. In support of this contention, ,Counsel has.referred to
the circumstance that at the end of the third round of counting, the appellant
was leading by a margin of 2205 votes. It is urged, this lead of 2205 votes
could not thereafter be turned into a deficit of 575 votes when the total
number of ballot papers that remained to be counted in the last round, was 3800
Like the elusive cloud, this ground of
objection, also, has been ever changing its hue and shape. In the application
'Exh. 3, for a recount which was submitted by the petitioner to the Returning
officer ,at 7 p.m. towards the close of.
the final round of counting-all that was
stated, was :
"It is respectfully submitted that
recounting of 168 Katoria Assembly Constituency be done.
Because one bundle of 600 votes have been
recounted again. All the votes be recounted." It was not alleged therein,
even in an embryonic form that 600 uncounted votes in bundles were detected
lying underneath the table of the Assistant Returning Officer.
Such an allegation, appeared for the first
time in the election petition which was filed about 33 days after the election.
What was earlier said to have been 'counted twice over', had now become
completely 'uncounted'. What was then alleged in Ex. 3 to have been counted on
the table, has now gone underneath the table.
The original allegation in Ex. 3 (which was
repeated in the second application, Ex. 3a, presented at 7-40 p.m.) was
manifestly untenable. because if there was double counting of any ballot
papers, the total of the votes polled should have exceeded by the number doubly
counted. No such excess was reflected in the grand total of the final result
The total was correct. The petitioner bad no
explanation as to why the grand-total of the final result sheet did not show an
excess of 600 or any other number of ballot papers.
It was mainly for this reason, that the
Returning Officer had rejected the applications of the petitioner for a
recount. That is why the petitioner has now come forward with a changed
version, invented as an after-thought.
31 The final result sheet, Exh. 7, falsifies
his present contention also. it shows that at the end of the third round, the
appellant was leading by a margin of 424 votes only. There is no good reason to
doubt the authenticity of the figures given in Exh. 7. As against it, the
notes, Ex. 2 Series, on which the petitioner relies for his contention that at
the end of the third round he was leading by 2205 votes, was a self-serving and
wholly unreliable piece of evidence. These notes (Exh. 2 series) were not
mentioned in the list of reliance filed along with the petition. There is no
reference to any such notes or their contents in the applications Exhs. 3 and
3a. These notes are said to have been made by the Counting Agents of the
petitioner at the time of counting. But in the initial list submitted by the
petitioner on 30-8-1972 for summoning among others his Counting Agents as
witnesses, it was not mentioned that they would produce any such notes.
Subsequently on 28-3-1973 he moved the court requesting that these witnesses be
required to bring their notes.
In these circumstances, the High Court was
right in holding that these notes had been subsequently brought into existence
for the purpose of this petition.
For the foregoing reasons, we are of the
opinion that the appellant has been unable to make out a good case for a
recount of the ballot papers. We dismiss his appeal. He shall pay the costs of
Respondent No. J..
V.M.K. Appeal dismissed.