Judgment

HEGDE, J.:- This is an appeal under S. 116-A of the Representation of the People Act, 1951 (in short the Act ) brought by the returned candidate whose election from the Mariahu constituency in the district of Jaunpur, in the last mid term election to the U. P. Legislative Assembly, has been set aside by the High Court of Allahabad in an election petition brought by the first respondent in this appeal, who will hereinafter be referred to as the respondent.

2. The appellant, the respondent and five others contested from the Mariahu constituency in the last mid term election. Polling took place on February 5, 1969. The votes were counted on February 10, 1969 and the result was declared on the same day. The Returning Officer declared the appellant to be the successful candidate as having secured 25,552 votes as against 25,483 secured by the respondent, his nearest rival. Margin of difference between the two was 69 votes. After the counting was over, the respondent asked for recounting but that was not granted by the Returning Officer. Thereafter the respondent applied to the Election Commission for inspection of the ballot papers. Inspection asked for was granted and the ballot papers were inspected both by the appellant and the respondent for four days i.e. between 21st and 24th of March 1969. The election petition was filed on March 27, 1969.

3. In the election petition, the respondent contended that some invalid votes, some votes cast in favour and some votes cast in favour of other candidates had been counted in favour of the appellant. The appellant denied all these allegations. In his turn he filed a recrimination petition wherein he also contended that some invalid votes, some votes cast in his favour and some votes cast in favour of other candidates had been counted in favour of the respondent.

4. During the pendency of the election petition both the appellant as well as the respondent applied for re-inspection of the ballot papers. It is unfortunate that the learned trail judge allowed those petitions. This led to serious developments as we shall presently see. There was no occasion for allowing re-inspection of ballot papers as the parties had already inspected the ballot papers. On September 15, 1969, the court ordered sorting out of the ballot papers alleged, either by the appellant or the respondent, as having been wrongly accepted or counted. The sorting out process went on till the 17th of November, 1969. Meanwhile on September 22, 1969 the appellant applied for re-inspection of the ballot papers. A similar prayer was made by the respondent on September 26, 1969. As mentioned earlier those prayers were granted. The inspection of the ballot papers continued simultaneously with the sorting out of the ballot papers referred to earlier and it went on till October 30,1969. On October 30, 1969, it is alleged that during the inspection, the Counsel for the appellant noticed certain facts from which he concluded that the ballot papers might have been tampered with Procedure adopted at the time of inspection was that the advocates on either sides inspected each ballot paper and inspected ballot papers were put in different covers; these covers were closed and sealed and the label thereon was signed both by the appellants Counsel as well as by the respondent s Counsel and at the close of the day those packets were put inside a box which was locked and sealed. According to the appellant on October 30, 1969, his Counsel Shri Misra noticed that the seal on the lock of box No. 3 was missing and that the lock was open. Thereafter when the box was opened, it was found that the envelopes inside the box had been opened and their seals were missing. Their flaps remained unpasted and the labels that were attached on them were all missing. The same day he made the following remarks in the daily sheet maintained by the staff:

"Attended inspection table by 10-30 A.M. Staff could come at 11 A.M. but the work started by 12-15. Inspecti