Judgment

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, was 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 and 1542 votes respectively. The votes rejected as invalid, were 1219.

2. 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.

3. 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.

4. Mr. Prasad, learned Counsel for the appellant contends that the following irregularities illegalities in the counting had been established :

(1) Four unauthorised persons, viz., Ajudhy Prasad Singh, Q M. Zaman, Parvez Ahmed and Radhey Sham Sah were allowed to work as Counting Supervisors at tables 4, 5, 7 and 8 in breach of the rules, and this bad 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 tablewise, 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 m the last round there were only 3800 ballot papers to be counted.

5. 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 twofold. 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 statement 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.

6. The contentions advance