G.N. Prasad, J.
1. The appellant is the returned candidate whose election to the Bihar Legislative Assembly from Majhaulia (Scheduled Castes) Assembly constituency has been set aside by the Election Tribunal, Chapra, upon the petition of one of the voters, Sri Gaurishanker Pandey (respondent No. 1). Nomination papers for the election were filed by three candidates, namely, Sri Jildar Ram (the appellant), Sri Jagannath Prasad Swatantra (respondent No. 2) and one Sri Sheo Prasad Harijan, who, however, withdrew his candidature. The poll took place on the 25th February 1962 and the counting was done on the 28th February 1962. As a result of the counting, the Returning Officer announced that the appellant had secured 13.146 votes while his opponent (respondent No. 2) had secured 18,036 votes. 835 other votes were rejected as invalid. The Returning Officer accordingly declared the appellant as duly elected.
2. The election of the appellant was challenged by means of an election petition filed by Sri Gourishankar Pandey (respondent No. 1) on a variety of grounds, such as:
(i) Disqualification attaching to the appellant under Article 191(1) (a) of the Constitution of India;
(ii) Procuring votes by corrupt practices;
(iii) Some of the voters not being qualified to vote either on the ground of being minors or enrolled as voters at two or more places in different constituencies; and
(iv) Grave irregularities in the matter of counting and of acceptance and rejection of polled votes.
3. In this appeal we are mainly concerned with the fourth of the above grounds and, therefore, it will be convenient to set out the relevant averments contained in paragraphs 9 to 11 and 18 of the election petition, which are in the following terms:
"9. That the counting agents of respondents were kept at distant places from the place of the counting which was going on 16 different tables, and they were not allowed to look into the ballot papers which were sorted out by the counting staffs, as a result of which several ballot papers of respondent No. 2 were mixed with the ballot papers of respondent No. 1 and several ballot papers of respondent No. 2 were taken away by the interested staff in order to secure the success of respondent No. 1.
10. That a large number of ballot papers polled in favour of respondent No. 2 were wrongly rejected and the counting agents of respondent No. 2 were not given opportunity to see those ballot papers and raise objections before it was declared to be invalid. The counting of the ballot papers was done contrary to the provisions of Section 64 of the Representation of the People Act, 1951 and Rules 56 and 57 of the Conduct of Election Rules. (sic)
11. That if the counting would have been done property and in accordance with law, the respondent No. 2 would have been declared elected by majority of valid votes.
18. That if the votes illegally and wrongly counted and rejected and produced on behalf of respondent No. 1 by false personation and by committing corrupt practices and the votes of the minors are eliminated, the respondent No. 2 would be declared (Sic) by a majority of valid votes."
4. In his written statement, the appellant traversed all the allegations made against his election and denied that the irregularities, as alleged, were committed by the counting staff or the Returning Officer or that the results of the election were materially affected thereby. According to the appellant, there was no mixing up of the ballot papers and no ballot paper was taken away in the manner alleged in paragraph 9 of the election petition, and that the truth of the matter was
''that the Returning Officer got the ballot boxes opened boothwise after allowing the counting agents of the Respondents to inspect the paper seal etc., and satisfy themselves that it was intact and after satisfying himself that none of the Ballot Boxes were tampered with and then the Ballot papers were taken out of each ballot box and arranged in convenient bundles and scrutinised and after scrutiny the Returning Officer rejected the ballot papers with great care and attention in accordance with the provisions of Rule 56 of Conduct of Election Rules, 1961, and every ballot paper which was not rejected was counted and after counting of all ballot papers contained in all the ballot boxes the Returning Officer made the entries in the result sheet in form 20 and announced the particulars and thereafter the valid ballot papers were bundled together and were kept along with the bundles of rejected ballot papers in a separate packet which was duly sealed and on which the necessary particulars were recorded by him."
The appellant further alleged that the election petition was not maintainable, besides being barred by limitation.
5. Sri Jagannath Prasad Swatantra (respondent No. 2) supported the case set up by the petitioner and further claimed that he should he declared as duly elected.
6. The parties raised the following issues before the Tribunal:
1. Is the election petition maintainable ?
2. Is the election petition barred by limitation, and if so, is it liable to be dismissed?
3. Is the election petition had for nonjoinder of Shri Sheo Prasad Harijan, and, if so, is the election petition liable to be dismissed ?
4. Was respondent No. 1 disqualified under Article 191(1) (a) of Constitution of India for being chosen and being a member of the Bihar Legislative Assembly ?
5. Was the counting of the voles of the constituency in question at the election in question violative of the provisions of Section 64 of the Representation of the People Act and Rules 56 and 57 of the Conduct of Election Rules. 1961 ?
6. Did the respondent No. 1 or his agent commit any of the corrupt practices as alleged in the election petition and its schedules A and B ?
7. Were the ballot papers of respondent No. 2 wrongly rejected and that of respondent No. 1 wrongly accepted at the time of counting ?
8. Was the counting of the ballot papers correct and in accordance with law ?
9. Were the votes in the names of dead and absent voters polled in the favour of respondent No. 1 ?
10. Did the respondent No. 1 receive votes from the voters who were enrolled at more than one place and who were disqualified to he voters ?
11. Was the polling station for the voters of village Jamunia illegally changed ?
12. Is the election of the respondent No. 1 fit to he declared void ? If so, is the respondent No. 2 entitled to be declared elected member to the Bihar Legislative Assembly from the constituency in question ?
13. To what relief, if any, is the petitioner entitled ?
7. Issues 9, 10 and 11 were, however, not pressed. The Tribunal has held that the election petition is maintainable, that it is not barred by limitation and that it is not bad for the non-joinder of Sri Sheo Prasad Harijan. The Tribunal has further held that the appellant was not disqualified for being chosen as a member of the legislature under Article 191 of the Constitution and that the corrupt practices alleged against the appellant or his agents have not been proved. The Tribunal, therefore, answered issues Nos. 1, 2, and 3 in favour of the election petitioner and issues Nos. 4 and 6 in favour of the appellant. The decision of the Tribunal upon issues 6, 7 and 8 is that 18 ballot papers which were in favour of Jagannath Prasad Swatantra were wrongly rejected as invalid at the time of counting by the Returning Officer against the provisions of Rules 56 of the Conduct of Election Rules, 1961; that 46 other ballot papers were wrongly counted in favour of the appellant, instead of in favour of Jagannath Prasad Swatantra; and that 165 other ballot papers which have been rejected as invalid under the provisions of Rule 57 of the said Rules were wrongly counted in favour of the appellant. Thus, the Tribunal has found that 211 votes had been wrongly counted in favour of the appellant and that 64 more votes should have been counted in favour of Jagannath Prasad Swatantra. Therefore, the total number of valid votes secured by the appellant was 13,146 minus 211 or 12,935, and the total number of valid votes secured by Sri Jagannath Prasad Swatantra was 13,036 plus 64 or 13,100. In other words, Sri Jagannath Prasad Swatantra had secured the majority of valid votes, but the result of the election was materially affected on account of the improper rejection, improper reception and wrong counting of votes as indicated above. Upon these findings, the Tribunal has declared the election of the appellant as void, and has further declared that Sri Jagannath Prasad Swatantra has been duly elected.
8. Being aggrieved by the decision of the Election Tribunal, Sri Jildar Ram has come up to this Court in appeal.
9. The first contention of Mr. B.P. Rajgarhia, who appeared in support of the appeal, is that a serious error was committed by the Tribunal in acceding to the prayer made before it by the Election-petitioner for inspection of the ballot papers. It is urged that the allegations contained in the election petition are too vague to justify an order for inspection of the ballot papers, which cannot be allowed as a matter of course. In support of his contention Mr. Rajgarhia has relied upon the decision of their Lordships of the Supreme Court in Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249 wherein if has been laid down that an order for inspection of ballot papers can only be justified if two conditions are fulfilled: (i) that the election petition contains an adequate statement of the material facts on which the petitioner relies in support of his case and, (ii) that the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, an inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the election petition, not supported by material facts, or to fish out evidence to support such picas.
10. The question for consideration, therefore, is whether the two conditions justifying an order for inspection of the ballot papers were fulfilled in this ease. 1 have already set out the averments made in paragraphs 9 and 10 of the election petition. It was alleged therein, inter alia, that several ballot papers of respondent No. 2 (Shri Jagannath Prasad Swatantra) were mixed up with the ballot papers of respondent No. 1 (Shri Jildar Ram) and that a large number of ballot papers polled in favour of respondent No. 2 were wrongly rejected and that the counting of the ballot papers was done contrary to the provisions of Section 64 of the Representation of the People Act, 1951, and Rules 56 and 57 of the Conduct of Election Rules, 1961. It appears that before applying to the Tribunal for inspection of the ballot papers, the election petitioner had examined not less than eight witnesses in support of his allegations as to irregularities in the matter of scrutiny and the counting of the ballot papers conducted by the Returning Officer. Thereafter the election petitioner filed a petition before the Tribunal on 13-8-1962 for leave to inspect the ballot papers which had been rejected by the Returning Officer at the time of counting as well as the ballot papers which were counted as having been polled in favour of the appellant. The Tribunal heard the parties on this matter at a great length and ultimately allowed the prayer for inspection of the ballot papers for reasons recorded by it in its order dated the 16th August 1962. In arriving at this decision, the Tribunal referred to the pleadings of the parties and came to the conclusion that the election petitioner had made specific allegations as to mixing up of the ballot papers and some of the ballot papers polled in favour of respondent No. 2 having been illegally rejected by the Returning Officer. The Tribunal pointed out that it was in view of the allegations and counter-allegations made by the parties that issues Nos. 5, 7 and 8 had been framed, and for a proper determination of the said issues, it was necessary to examine if the ballot papers of respondent No. 2 were really mixed up with the ballot papers of the appellant and counted as his ballot papers. It was also necessary to examine if the rejected ballot papers had been rightly rejected by the Returning Officer at the time of counting. The Tribunal took the view, and in my opinion rightly, that "all these cannot he done without inspection of the ballot papers in question."
11. It is manifest that the Tribunal was conscious of the true principle of law on the point and it was satisfied that in order to decide the dispute between the parties in a correct manner, it was necessary to allow the prayer for inspection of the ballot papers. The precise manner in which the inspection was conducted has been set out by the Tribunal in paragraph 44 of its judgment. It appears that the inspection was conducted in presence of the learned counsel of the parties as also of the Tribunal. Further, it appears that after inspection, the ballot papers were replaced "in the same manner in which they were kept previously and were resealed in the presence of me learned counsel of all the parties". What happened thereafter was this :
"Later on the petitioner filed a petition alleging that such and such ballot papers were wrongly counted in favour of respondent No. 2 and such and such ballot papers were wrongly rejected by the Returning Officer at the time of counting. Accordingly the question of sorting out those ballot papers became necessary and this was done in the presence of the learned counsel of all the parties and in my presence and also in the presence of the Bench Clerk of the Tribunal. The sorting was done on 23-12-62, 17-2-63, 22-2-63 and 23-2-63. On each day the procedure adopted by me at the time of inspection was also adopted at the time of sorting out the relevant ballot papers. No grievance was made by any of the parties in this matter as well The petitioner got 136 rejected ballot papers exhibited and they were Exts. 6 to 6(Z109). Out of the ballot papers counted in favour of respondent No. 1 petitioner got 485 ballot papers exhibited and they are Exts. 5 to 5 (Z458). Subsequently the learned counsel for the petitioner filed two lists mentioning therein some of the exhibited ballot papers saying that he does not press them ........ The petitioner has also filed eight other lists of the ballot papers out of Exts. 5 series under different heads and the learned Counsel of the petitioner submitted that he presses the same for consideration of the Tribunal. In all the lists furnished by the petitioner the exhibit number of the ballot paper, ballot paper number and the number of the booth to which it relates have been mentioned At the top of each of the said eight lists I have put list number for convenience and they are lists Nos. 1, 2, 2(a), 3, 4, 5, 6, and 7. The total number of all the ballot papers mentioned in the said lists comes to 426."
12. It is thus apparent that the Tribunal took great care to insure that only those ballot papers were brought on the record which were relevant for decision of the dispute between the parties. The Tribunal had undoubtedly to be satisfied whether in fact there had been irregularities in the matter of counting and acceptance and rejection of the ballot papers on the part of the Returning Officer, and the Tribunal could not possibly have been in H position to come to a correct decision on these matters unless it had itself inspected the relevant ballot papers which it bad, in all fairness, done in presence of both the parties.
13. The contention of Mr. Rajgarhia is that by allowing the prayer for inspection of the ballot papers, the Tribunal had in effect permitted the election petitioner to fish out evidence to support his pleas made vaguely in the election petition. According to the learned counsel, the materials which were collected as a result of the inspection of the ballot papers should have been set out in the election petition itself, being matters which must be deemed to be within the knowledge of the petitioner, having regard to the elaborate rules contained in the Conduct of Election Rules for ensuring proper scrutiny and counting of votes. In this connection Mr. Rajgarhia laid particular stress upon the following observations made by their Lordships in Ram Sewak Yadav's case, AIR 1964 SC 1249.
"There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the Returning Officer, inspecting any reject td votes, and to demand a re-count. Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of voles at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a re-count. It is in the light of the provisions of Section 83(1) which require a concise statement of material facts on which the petitioner relics and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a recount that the application for inspection must be considered."
There might have been some force in this contention if the election petitioner had been one of the contesting candidates, as was the fact in Ram Sewak Yadav's case, AIR 1964 SC 1249. But the opportunity which is expected to be available to a candidate or his agents of knowing the exact manner in which the ballot boxes were scrutinised and opened and, the votes were counted could not have been avail able to the election petitioner who, in the present case, was only one of the voters. Therefore, the observation of their Lordships upon which Mr. Rajgarhia relies cannot be applied with all its force to the facts of the present case. Besides, a study of the decision in Ram Sewak Yadav's case, AIR 1964 SC 1249 shows that in that case the petitioner had not adduced any evidence in support of his case set out in me election petition, but had merely asserted in his application for inspection that he was "almost sure" that on inspection and scrutiny of the ballot papers, the allegations contained in the various paragraphs of his election petition would be proved. It was in that context that their Lordships observed that the allegation of the petitioner
"that he was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that there had been wrong counting on account of improper reception, refusal or rejection of votes was wholly insufficient to justify a claim for inspection. He had to place before the Tribunal evidence prima facie indicating that an order for inspection was necessary in the interests of justice, which he failed to do".
In the instant case, the facts are entirely different. As already indicated, before applying for inspection of the ballot papers, the election petitioner had examined a number of witnesses who bad deposed in support of the allegations of improper reception, refusal or rejection of votes contained in paragraphs 9, 10 and 11 of the election petition. The substance of the evidence given by the first eight witnesses examined by the election petitioner, between the 6th and the 8th August 1962, was that some of the ballot papers were rejected by the Returning Officer, although they bore seals on the symbol of Jagannath Prasad Swatantra, which was a pair of bullocks, and that several ballot papers which bore seals on the symbol of the pair of bullocks were mixed up with the ballot papers which bore seals on the symbol of the appellant, namely, the symbol of a cycle, and as a result thereof ballot papers containing seals on the symbol of a pair of bullocks were counted in favour of the appellant, instead of in favour of his rival candidate. It is, therefore, not correct to say that there was no material before the Tribunal at the time when it allowed the prayer for inspection of the ballot papers from which it could have been prima facie satisfied that an order for inspection was necessary in the interest of justice. What was required of the petitioner was to set out in his petition an adequate statement of the material facts on which he relied in support of his case. But I do not read Ram Sewak Yadav's case AIR 1964 SC 1249 as lying down [hat all the particulars brought out as a result of the inspection of the ballot papers should have been incorporated in the election petition. These are matters of evidence which, under the well recognised rules of procedure, are not required to be mentioned in the pleadings of the parties. In this connection reference may be made to the earlier decision of the Supreme Court in Bhim Sen v. Gopali, 22 Ele LR 288 (SC), wherein it was observed that in a case like this, definite particulars about the number and nature of void votes that had been counted and particulars in regard to the allegations of this kind could only be supplied after inspection of the ballot papers, and that the allegations made in the election petition which were similar to the allegations which are to be found in the present election petition must be regarded as being the material particulars of facts on which the petitioner relies in support of his case. Bhim, sen's case, 22 Ele LR 288 (SC) was referred to by their Lordships in Ram Sewak Yadav's case AIR 1964 SC 1249 and a clarification was made that it did not lay down any general principle that a party is entitled to claim an order for inspection of the ballot papers without making allegations of material facts in support of his plea. At the same time, it was pointed out that the nature of the allegations must depend upon the facts of each case. In my opinion, as a mere voter, the election petitioner before us, not being himself a candidate at the election, could have done no more than state in his election petition, and to lead some evidence to the effect, that there bad been improper reception, refusal or rejection of votes at the lime of counting, in consequence of which the result of the election was materially affected, and that if the votes bad been properly counted, then if would have been found that Jagannath Prasad Swatantra, and not Jildar Ram, had secured the majority of valid votes. Upon the facts of the present case, I am, therefore, of the opinion that the election petition did contain an adequate statement of the material facts upon which the petitioner relies in support of his case, and that, in the circumstances, the Tribunal was amply justified in allowing the inspection of the ballot papers. The first contention of Mr. Rajgarhia must, therefore, fail.
14. The second contention of Mr. Rajgarhia is that the Tribunal was not justified in basing its decision on a consideration of the ballot papers because the ballot papers have not been proved in accordance with the law. They have simply been tendered in evidence without formal proof as if they are public documents, which according to Mr. Rajgarhia, they are not. In support of his contention that ballot papers are not public documents, Mr. Rajgarhia has relied upon the meaning assigned to the expression "public document" by Lord Blackburn in Maria Mangini Sturla v. Fillipo Tomasso Mattia Freccia, (1880) 5 AC 623, which was also adopted by Harwell, J. in Mercer v. Denne, (1904) 2 Ch 534. But decisions of English Courts are of no avail on this matter which is governed by statutory provision contained in the Indian Evidence Act, 1872. Section 74(1) of that Act provides that documents forming, records of the acts of official bodies are public documents, and by reason of Sub-section (2) of Section 74 ''public records kept in any State of private documents" are included within the concept of public documents.
The ballot papers bearing the seals or marks put by the voters and ballot papers put by the voters in the ballot box are undoubtedly records of the Election Commission indicating the manner in which the voters have cast their votes or shown their preference for one candidate or the other. Such ballot papers have, under the relevant election rules, to be kept under proper seals even after the counting of votes in accordance with statutory rules contained in the Conduct of Election Rules, 1961. In other words, such ballot papers are to be preserved as public records by the State and they have to be made available to an Election Tribunal under the orders of the Tribunal passed in suitable cases. I have, therefore, no doubt in my mind that such ballot papers put by the voters in the ballot boxes are records of the acts of the Election Commission which is a public body or, at any rate, public records kept by the State of Private documents, and as such they are public documents within the meaning of Section 74 of the Evidence Act. They can be tendered in evidence in original in suitable cases, without having to be formally proved like other private documents by calling witnesses competent to prove them.
It is manifest that the usual method of proof of private documents cannot apply in the matter of proof of ballot papers which have been put by the voters into the ballot boxes. The reason is that both the Representation of the People Act and the statutory rules framed thereunder insist upon secrecy of voting and, therefore, it is not possible to call any witness who can testify to the fact as to which particular voter has indicated his choice in a particular ballot paper. Further, Section 94 of the Representation of the People Act, 1951, provides that no witness or other person shall be required to state for whom he has voted at an election. It follows that the ordinary method of proof of private documents cannot apply to the proof of ballot papers which have been put by the voters inside the ballot box. It cannot he maintained that even the Election Tribunal is not entitled to look into the ballot papers when called upon to decide whether there has been improper reception or rejection of validly polled votes. If, therefore, the Tribunal is entitled to have an access to such ballot papers, that they can only be brought on the record without formal proof, and this, in turn, can be possible only if such ballot papers are deemed to be public documents within the meaning of Section 74 of the Evidence Act. I have, therefore, no hesitation in repelling the contention of Mr. Rajgarhia that the Tribunal was not entitled to come to its decision upon a consideration of the ballot papers.
15. The third contention of Mr. Rajgarhia is that there was no material before the Tribunal to enable it to determine that any of the votes east in favour of respondent No. 2 was counted by the Returning Officer in favour of the appellant. It is urged that the ballot papers sent up to the Tribunal were of two categories, namely, those which were declared as invalid and those which were counted as valid. But merely by looking at the packets of ballot papers of the latter category, it was not possible to ascertain which ballot paper was counted in favour of which candidate. In support of his contention Mr. Rajgarhia drew our attention to Rules 56(4), 56(5) and 57(3) of the Conduct of Election Rules and to Rules 12(d) (v), 12(d) (vi) at page 54, Rule 16(q) at page 58 and Rule 8 at page 63 contained in the Hand-Book for Returning Officers for the year 1961 issued by the Election Commission of India. In substance, the contention of Mr. Rajgarhia is that these rules do not enjoin that after the counting of the ballot papers it over, the Returning Officer should put back into the ballot boxes valid papers candidate-wise.
It seems to me, however, that there are several difficulties in the way of Mr. Rajgarhia on this matter. It appears from the record that the appellant had himself made an application before the Tribunal on the 6th November 1962 in which he had prayed that his lawyer might be permitted to inspect "the ballot papers counted in favour of respondent No. 2". This prayer, however, was not allowed for reasons recorded by the Tribunal in its order dated the 8th November 1962, the principal reason being that the appellant had not applied for recrimination within time in accordance with Section 97 of the Representation of the People Act, 1951. But the point to be noticed is that the statement made by the appellant in his petition dated the 6th November 1962 constituted an admission, made after the inspection of the ballot papers, which was done in presence of his counsel, that the ballot papers counted by the Returning Officer in favour of the two candidates were kept in separate bundles. This is amply borne out by what the Tribunal had itself noticed during the inspection. The relevant observation of the Tribunal is to be found in paragraph 52 of its judgment which reads:
"At the time of inspection of the ballot papers also it was found that the packet meant for keeping valid ballot papers of a particular polling station contained the ballot papers of both the candidates and the ballot papers of one candidate consisted of small bundles, each bundle containing 50 ballot papers. If after making small bundles in this way there used to remain ballot papers whose number was less than 50, then small bundles of those ballot papers also used to be made. It was noticed that there were some loose sheets of ballot papers also, the number being very few. Those loose sheets used to be kept along with some small bundle of a candidate in whose favour the ballot papers of that bundle and the loose sheets of ballot papers were counted. It seems that after scrutiny of the separate bundles of some polling stations some ballot papers were incorrectly kept and when on scrutiny the mistake was detected those ballot papers were transferred to the proper bundle. Therefore, the valid ballot papers counted in favour of one candidate relating to a particular polling station were quite distinguishable from the valid ballot papers of another candidate kept in the same packet."
The fact that this conclusion of the Tribunal is correct will become clear if we refer to Instructions Nos. 5 and 8 at pages 62 and 63 of the Official Hand-Book for Returning Officers. Instruction No. 5 enjoined upon the counting supervisors and their assistants to sort out the ballot papers and to put
"each ballot paper validly marked for a candidate in the compartment place assigned to that candidate and put each of the doubtful ballot papers in the compartment place marked 'D' ('D' denoting doubtful ballot papers)".
According to Instruction No. 8, "after all the ballot papers have been so sorted", the supervisor was required to
"count the ballot papers in each of the stacks making them up in lots of 50 and the balance in one lot, tie them up in separate bundles, and note the result of the counting in ink in Part II of the ballot paper account in Form 16 and sign the same''.
Instruction No. 9 enjoined upon the counting supervisors to
"put the Ballot Paper Account on top, 'D' bundle immediately below, and below that, the bundles for candidates 1,2,3 etc", and thereafter to "tie up in one packet and leave the packet with the Returning Officer."
The procedure to be adopted by the Returning Officer is as indicated in instruction No. 15 at pages 54 to 58 of the Hand-Book. According to these instructions, the Returning Officer had to take the packets sent up to him by the Supervisor "one by one", and then to scrutinise each of the ballot papers in the "doubtful" bundle and come to his decision with regard to each doubtful ballot paper as to whether it should be finally rejected or accepted as valid.
The Returning Officer had also to make a test check of the bundles of valid ballot papers in order to see that they had been correctly sorted and did not contain any ballot paper which ought to have been rejected. After completing his scrutiny, the Returning Officer was required to put in the bundles of the appropriate candidates those "doubtful" ballot papers which, in his opinion, contained a valid vote in favour of that candidate and to transfer the ballot papers rejected by him in the "bundle of rejected ballot papers", and "after scrutinising all the bundles in the packet and making the necessary transfers" in accordance with his decision, the Returning Officer was enjoined to
''revise the entries in Part II of the Ballot Paper Account--not by overwriting or scoring out the supervisor's figures but by making the necessary plus and minus entries after those figures and initialling them"
and at the same time putting his signature on the ballot Paper Account. Instruction No. 15(q) to the Returning Officer was in the following terms:
"Finally have all the bundles of valid ballot papers and the bundle of the rejected ballot papers made up into a separate packet and sealed. Do not put the Ballot Paper Account in the packet. Write on the packet the name of the constituency, the number and name of the polling station and the date of counting".
This latter instruction is in accord with Rule 67(3) of the Conduct of Election Rules, 1961, which provides;
"The valid ballot papers shall thereafter be bundled together and kept along with the bundle of rejected ballot papers in a separate packet which shall be sealed and on which shall be recorded the following particulars, namely:
(a) the name of the constituency,
(b) the particulars of the polling station where the ballot papers have been used, and,
(c) the date of counting."
The various rules and instructions referred to above leave no room for doubt that the valid ballot papers of each candidate were made into separate bundles, and such bundles made candidatewise were ultimately put into a larger packet and sealed in accordance with Rule 57(3) of the Conduct of Election Rules, 1961. The loose-sheet of ballot papers which the Tribunal found to be kept along with the bundle of each candidate were evidently those ballot papers which the Returning Officer, at the time of scrutiny and counting, had picked out from the doubtful bundle as a result of his decision that they were valid ballot papers in favour of that candidate along with whose bundle they were ultimately kept. There is, therefore, no substance in the contention of Mr. Rajgarhia that the Tribunal had no means to determine which particular ballot paper had been counted in favour of which candidate.
16. An argument was, however, put for ward by Mr. Rajgarhia on the basis of instruction No. 8 at page 63 of the Hand-Book referred to above. It was urged that having regard to the requirement of putting the valid ballot papers in lots of 50, it was incumbent upon the Returning Officer to make bundles in such lots. If, for example, he found at the time of counting that after making bundles of 50 in respect of each candidate, there was left behind a balance of say 30 ballot papers, in favour of one candidate and 20 ballot papers in favour of the oilier candidate, then he had to make another bundle of 50, and for this purpose the valid ballot papers of the two candidates had to be mixed up, because under the instruction there could not have been separate bundles of 30 and 20 of such ballot papers. If this contention of Mr. Rajgarhia is correct, then of course the Tribunal could have no means of finding out which particular ballot paper was counted in favour of which candidate. But I have no hesitation in holding that there is no substance in this contention. In the first place, it is not correct to say that instruction No. 8 upon which Mr. Rajgarhia has relied did not contemplate bundles of less than 50 ballot papers. On the other hand, the instruction to the Counting Supervisor was to make bundles in lot of 50 "and the balance in one lot" and then to tie them up in separate bundles. This clearly shows that after making bundles in lots of 50, if there was left a balance of say 30 valid ballot papers in favour of a particular candidate, then those 30 ballot papers had to be put in one lot and made into a bundle, even though that bundle contained less than 50 ballot papers. Likewise, the Counting Supervisor had to make a separate bundle of say 20 ballot papers in respect of the other candidate and to put that smaller bundle along with bundle in lots of 50 in respect of the latter candidate. Instruction No. 8, by no means, contemplated that bundles in lots of 50 were to be made by mixing up 30 ballot papers of one candidate with 20 ballot papers of rival candidate. Secondly, the task of making these bundles bad to be performed by the Counting Supervisor before the stage of counting was reached, and not by the Returning Officer at the time of counting or thereafter. The instructions nowhere show that any bundling bad to be done at the second stage, that is to say after the ballot papers had been sent up by the Counting Supervisors to the Returning Officer. I am, therefore, clearly of the opinion that the ballot papers of the two candidates were not mixed up after counting as suggested by Mr. Rajgarhia.
17. In support of his contention that there was mixing up of the ballot papers of the two candidates after counting, Mr. Rajgarhia, however, relied upon the evidence of Ramadhar Singh (R.W. 5) and Mandeo Tewari (R. W. 6), both of whom were the counting agents of the appellant. R. W. 5 has deposed :
"After the counting of the ballot papers by S. D. O. was done, the ballot papers used to be tagged in small bundles of 50 each. These small bundles used to be done for each of the candidates separately, A separate packet for each candidate with respect to those small bundles used to be made and then the packets of both the candidates used to be kept in a bigger packet. If there used to remain some ballot paper of any candidate after making small bundle of 50 each, then these ballot papers of one candidate and such ballot papers of another candidate used to be kept together in a small bundle and this small bundle used to be kept in the packet of that candidate whose ballot papers were bundled first."
To the same effect is the evidence of R. W. 6, who deposed :
"After counting by the S. D. O. the ballot papers of both the candidates used to be bundled at one place (objected to). There used to be separate bundle for the rejected ballot papers."
It is contended that the evidence of these two witnesses has been rejected by the Tribunal on untenable grounds. It is urged that the Tribunal was not correct in making the observation in paragraph 54 of its judgment that the case of bundling of ballot papers after counting was not put forward by the appellant until the evidence on the side of the petitioner was closed and that it was put forward for the first time in the evidence of R. W. 4. That, however, was not the only ground which induced the Tribunal to reject the case of bundling of ballot papers after counting. The Tribunal has also pointed out that while opposing the election petitioner's prayer for inspection, it was not suggested on behalf of the appellant that no useful purpose would be served by allowing the prayer for inspection because after the counting, the ballot papers of the two candidates, which were accepted as valid, were mixed up and then replaced into the ballot box. During the inspection also, no suggestion was made on behalf of the appellant that the ballot papers picked out as the ballot papers counted in favour of the appellant and marked Exts. 5 series were not correctly picked up as such. Another reason which the Tribunal has given for not accepting the evidence of R. Ws. 5 and 6 has been stated as follows :
"I may mention at this place that at the instance of respondent No. 1 the Returning Officer was summoned to depose in the present case and in pursuance of the summons of the Tribunal he also attended the court hut respondent No. 1 did not choose to examine him. Thus the best evidence which could be available as to the procedure adopted at the time of counting was withheld."
In my opinion, the reasonings of the Tribunal on this matter are perfectly sound and, therefore, I do not feel impressed with the evidence of R. Ws. 5 and 6. In my opinion, the Tribunal has come to a correct conclusion which it has summed up in paragraph 54 of its judgment in the following terms :
"I find that after the ballot papers of a ballot box were taken, they were sorted out candidatewise and the ballot papers which were liable to be rejected were sorted out at a different places, then there used to be small bundles of the ballot papers of each candidate and after scrutiny of the ballot papers in these bundles, the bundle of the ballot papers of both the candidates kept in one packet in such a way that the ballot papers of one candidate were distinguishable from the ballot papers of the other candidate. There is thus no substance in the contention on behalf of respondent No. 1 that it cannot be said with certainty which ballot paper of Exts. 5 series was counted in favour of which candidate and I hold that the ballot papers (Exts. 5 series) were the ballot papers which were counted in favour of respondent No. 1 at the time of counting."
18. The fourth contention of Mr. Rajgarhia relates to the question whether the Tribunal was right in holding that 211 voles had been wrongly counted in favour of the appellant, that 46 of them ought to have been counted in favour of respondent No. 2 and that 18 other ballot papers had been wrongly rejected by the Returning Officer and should have been counted in favour of respondent No. 2. In substance, the contention of Mr. Rajgarhia is that this finding of the Tribunal is based upon a misconception of the provisions of Rules 56 and 57 of the Conduct of Election Rules, 1961, and of Sub-rules (1) and (m) of Rule 15 at pages 56-57 of the Hand-Book for Returning Officers. In order to appreciate the contention put forward before us on this point, it will he convenient to have an idea of the structure of the prescribed ballot paper and the manner of indicating the voter's choice there on for one of the two contesting candidates. The printed ballot papers had three portions. On the top portion were printed the name of the appellant and the symbol of his party which was a cycle. Towards the bottom were printed the name of Jagannath Prasad Swatantra and the symbol of his party which was a pair of bullocks. These two portions or columns of the ballot paper were intervened by a shaded or blank portion at the middle, running right across the whole length of the ballot paper from left to right. For the purpose of indicating his choice for one candidate or the other, the voter used to be provided with a rubber stamp by means of which he had to put a mark on the symbol or column of the candidate for whom he wished to vole. The mark had to be put in such a way as to give a clear indication of the voter's choice. There could be no difficulty in ascertaining the voter's choice if the mark existed clearly on the column of one of the two candidates. Similarly, if the mark existed in the shaded (or blank) portion of the ballot paper, then that had to be taken as a clear indication of the fact that the voter did not like to exercise his vote in favour of either of the two candidates. All ballot papers of the first category had to be accepted as valid and counted in favour of the candidate on or against whose symbol the mark of the rubber stamp occurred; and likewise, all ballot papers of the second category had to be excluded at the time of counting the votes. But it cannot be assumed that in every case the voter must have recorded his vote in the correct way or put the mark in such a careful manner as to give a clear indication of his choice in favour of one or the other candidate or of neither of them. In other words, there might be several cases in which the ballot paper has been rendered invalid and several other cases in which it was doubtful to which candidate, if at all, the vote has been given. It was for meeting such contingencies that it was provided in Rule 56(2) of the Conduct of Election Rules, 1961, that the Returning Officer "shall reject" a ballot paper on various grounds, among which the following are relevant to the present purposes:
"(a) if it bears any mark or writing by which the elector can be identified, or
(b) if no vote is recorded thereon, or
(c) if votes are given on it in favour of more than one candidate, or
(d) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given."
In accordance with these rules, certain directions were incorporated for the guidance of the Returning Officers in the Hand-Book issued by the Election Commission in 1961. Instruction No. 15(1) at page 56 enjoined upon the Returning Officers to reject a ballot paper only-
"(i) when there is no mark at all, on the front or back; or
(ii) when the mark is in blank area, that is to say, at the back or entirely in the shaded area; or
(iii) when there are marks against two or more candidates; or
(iv) when there is any writing or mark by which the voter can be identified; or
(v) when the ballot paper is mutilated beyond recognition or
(vi) when the ballot paper is not genuine."
At the same time, it was provided in instruction No. 15(m) at page 57, not to reject any ballot paper simply because -
"(i) more than one mark has been made in the column of one candidate; or
(ii) besides a clear mark in the column of not more than one candidate, there an; marks on the back or on shaded area; or
(iii) the mark is only partially within the column of one candidate and the rest of the mark is in the blank area or outside the ballot paper; or
(iv) the original mark is patently in the column of one candidate but an impression due to wrong folding appears in the column of another candidate; or
(v) there is a mark in the column of one candidate, but a smudge appears against that of another candidate; or
(vi) there is no distinguishing mark, provided you are satisfied that the omission has been due to any mistake or failure on the part of the Presiding Officer or Polling Officer; or
(vii) the mark indicating the vole is indistinct or made more than once, if the intention that the vote is for a particular candidate clearly appears from the way the paper is marked."
It is in the light of these rules and instructions that the Tribunal, upon an examination of the various ballot papers, has come to the conclusion that there had been several cases of improper rejection of valid ballot papers which should have been counted in favour of respondent No. 2, and several other cases of improper reception of invalid ballot papers in favour of the appellant and some cases in which votes had been cast in favour of respondent No. 2, but the Returning Officer had wrongly counted them in favour of the appellant. Since, however, these findings of the Tribunal have been seriously challenged before us by Mr. Rajgarhia, we have ourselves looked into the relevant ballot papers in order to satisfy ourselves as to how far the conclusions of the Tribunal are correct.
19. * * * *
20. It is true that most of these ballot papers bear more than one mark and that has given rise to some confusion as to which are the original marks put by the voter and which are mere impressions created on account of wrong folding or any other cause A decision on a matter like this cannot rest on mere speculation. At the same time, it is not difficult to ascertain which of the marks are the original ones and which of them are mere folding impressions. A sure lest is to examine the reverse of the ballot papers against natural light. By doing so, a reflection will be noticed of some depression caused on the ballot paper, obviously by the pressure put on it by the voter while affixing the mark with the rubber stamp No such reflection of depression can be created merely by some ink impression having been caused due to folding on some other part of the ballot paper. Therefore, it can safely be assumed that the point at which such reflection of depression is noticeable is the point where the original mark was put by the voter.
21-29. List No. 6 of the election petition contained only two ballot papers Exts. 5y and 5z(9), both of which had a mark on the cycle column. But the Tribunal has excluded them us invalid on the ground that they also bear "clear thumb impression surely of the voter on the back side", on account of which "the electors are identifiable" I have looked into both these ballot papers and I find that the view taken by the Tribunal is correct and that the Returning Officer was bound to reject both these ballot papers in accordance with Rule 56(2) of the Conduct of Election Rules. 1961.
30-31. * * * * (After examining the findings of the Tribunal their Lordships came to the conclusion that out of 13,146 votes counted by the Returning Officer in favour of the appellant, a deduction should be made of 98 votes, leaving a balance of 13,048 votes in his favour. Similarly to 13,036 votes counted in favour of respondent No. 2, must be added 59 more votes, thus making up the total number of votes cast in his favour as 13,095 and therefore it must follow that the results of the election were materially affected on account of improper rejection and reception of votes and of wrong counting of votes, and that it was respondent No. 2, and not the appellant, who had secured the majority of validly polled votes.)
32. Mr. Rajgarhia has, however, contended that there is no guarantee that all the 13,036 votes counted by the Returning Officer in favour of respondent No. 2 were validly polled or correctly counted in his favour and, there fore, in order to come to a correct conclusion as to which of the two candidates had secured the majority of the validly polled votes, it is necessary that all the 13,036 votes must be scrutinised likewise. I am, however, of the opinion that this argument is not available to the appellant. The case put forward by the appellant in paragraph 6 of his written statement was that
"no irregularity of any kind was committed by any one at the time of counting of votes and announcing the result of election".
Further, in paragraph 9(iii), it was alleged, inter alia, that
"no objection is alleged to have been taken either by any of the contesting candidates or their Election Agents or their Counting Agents to any irregularity or illegality of any kind at the time of counting".
In paragraph 9(iv), it was said that the Returning Officer had rejected the ballot papers with great care and attention in accordance with the provisions of Rule 56 of the Conduct of Election Rules, 1961, and every ballot paper which was not rejected was counted.
In other words, it was not the case of the appellant that a single vote was counted in favour of respondent No. 2, although it was invalid. It was also not the case of the appellant that any of his validly polled votes was wrongly counted in favour of respondent No. 2. Upon the pleadings, therefore, we must proceed upon the assumption that all the 13,036 votes which were counted by the Returning Officer in favour of respondent No. 2 were validly polled in his favour and that it is not open to the appellant to contend that apart from 13,146 votes which had been counted by the Returning Officer in his favour, there was any other vote which should have been counted in his favour. It seems to me, therefore, that it is too late to raise such a contention now and that it must be held that the appellant had secured 13,048 votes, while his rival had secured 13,095 votes. Upon this finding, the decision of the Tribunal must he upheld.
33. On behalf of the respondents it was urged that the election of the appellant is fit to be declared void on the further ground of a disqualification attaching to him under Article 191(1) (a) of the Constitution, inasmuch as the appellant, who was admittedly holding an office of profit under the State Government, being the Gram Sewak of Mohiuddinpur Gram Panchayat, must be deemed to have continued in that office, although his resignation was accepted by the District Panchayat Officer. Motihari, with effect from the 1st January 1962, prior to the filing of the nomination for the election on the 20th January 1962. The argument is that the District Panchayat Officer was not competent to accept the resignation of the appellant who had been appointed as Gram Sewak by the State Government, which alone was the authority competent to accept his resignation
This point has been elaborately considered by the Tribunal in paragraphs 21 and 22 of its judgment and it has been pointed out there that the State Government had delegated its power to the District Panchayat Officer in this behalf as far back as in 1953. I am, therefore, unable to accept this contention of the respondents.
34. It remains to consider two more contentious put forward before us on behalf of the appellant. One of them is that the election petition is fit to be dismissed on the ground of non-joinder of Shri Sheo Prasad Harijan, who also had filed his nomination for the election, as he was a necessary party, although he had withdrawn his candidature prior to the scrutiny which took place on the 22nd January 1962. In view, however, of the provisions of Section 82 of the Representation of the People Act, 1951, the election petitioner was bound to join as respondents to his petition only the contesting candidates, and since Shri Sheo Prasad Harijan had withdrawn his candidature, it is manifest that he was not a contesting candidate within the meaning of Section 82, even though he may have been a "candidate" for the election as defined in Clause (b) of Section 79 of the Act. The use of the words "contesting candidate" in Clause (a) of Section 82 must imply that it does not contemplate a candidate who has withdrawn his candidature in accordance with Section 37 of the Act. This contention of Mr. Rajgarhia must, therefore, fail.
35. The other contention of the learned counsel is based upon the finding of the Tribunal to the effect that the affidavit appended by the election petitioner to his petition suffered from vagueness and did not comply with the requirements of the proviso to Section 83(1) of the Representation of the People Act, 1951. It is urged that upon this finding alone, the Tribunal should have dismissed the election petition in limine. The affidavit contemplated by the proviso to Section 83(1) is in regard to particulars of any corrupt practice that the petitioner alleges. But Sub-section (3) of Section 90 of the Act which enjoins upon the Tribunal to dismiss an election petition in limine refers only to non-compliance with the provisions of Section 81 or 82, and not to the non-compliance with any of the provisions of Section 83. It must follow that the Tribunal could not have dismissed the election petition in limine under Section 90(3) on the ground of non-compliance of any of the requirements of Section 83. The point is now concluded, so far this Court is concerned, by the Bench decision in Mahesh Prasad Sinha v. Manjay Lal, AIR 1964 Pat 53, wherein it was pointed out by Untwalia, J. that prior to the amending Act 27 of 1956, the penalty provided by the law for non-compliance with the provisions of Section 83 was a dismissal of the election petition by the Election Commissioner, under Section 85 or by the Election Tribunal under Section 90(3) of the Act, but no such consequence is provided in the Act as it stands after the amendment of 1956. His Lordship has further pointed out:
"It is, therefore, clear that even for the non-filing of the affidavit along with the election petition as required by the proviso in question, the whole of the petition cannot be dismissed in limine. It may well be that in that event the allegations of corrupt practices in the petition have got to be struck out as being unnecessary under Order 6, Rule 16 of the Code of Civil Procedure or some other consequences may follow even though not specifically provided for in the Act. .... ... .......
But I have no doubt in my mind that, if the election petition is accompanied by an affidavit, the allegations of corrupt practices made in the election petition cannot be struck out merely because the affidavit is not in the prescribed form or is a defective one."
In Kidwai Hussain Kamil v. Yadav Ham Sewak, AIR 1964 All 86, it was pointed out by the Lucknow Bench of the Allahabad High Court upon a consideration of the relevant provisions of the Representation of the People Act, 1951, that the proviso to Section 83 of the Act is not in the nature of mandatory provision, the non-compliance of which would entail the summary dismissal of the election petition, though its effect could be considered at the time of final hearing of the petition. In the instant case, the allegations of corrupt practices have failed, but since they are clearly separable from the other allegations made in the election petition, the decision arrived at by the Tribunal cannot be interfered with on the ground of non-compliance with the requirements of the proviso to Section 83(1) of the Act. I have, therefore, no hesitation in overruling this contention of Mr. Rajgarhia.
36. For the reasons set forth above, the decision of the Election Tribunal must be upheld. Therefore, this appeal fails and it is accordingly dismissed with costs. The hearing fee will be assessed at Rs. 250/-.
37. I agree.