2005 Supreme(SC) 56

2005(1) Supreme 634
Supreme Court of India
(From Patna High Court)
R.C. Lahoti, CJI, G.P. Mathur & A.K. Mathur, JJ.
Janak Singh —Appellant
versus
Ram Das Rai and Ors. —Respondents
Civil Appeal No. 9228 of 2003
Decided on 11-1-2005
Counsel for the Parties :
For the Appellant : Prabha Shankar Mishra, Sr. Advocate, Gaurav Aggarwal, Tathagat Harsh Vardhan, Upendra Mishra, Dhruv Kr. Jha, Amitesh Chandra Mishra, Ansul and Prashant Kumar, Advocates.
For the Respondents : Naresh Kaushik, Abhishek Maratha, Ms. Shilpa Chohan and Ms. Lalita Kaushik, Advocates.

Important points1. The Election Commissioner may consider some measures to appoint some of the personnel from para military force to be deputed inside the polling booth so as to keep eye on local staff who are entrusted to conduct the election.2. The Election Commission should insist the State to utilize the amount made available to them for conduct of election and for no other purpose and strict instructions should be given to the election observers not to accept undue hospitality of state because that would unnecessarily compromise their objectivity and transparency.

Headnote:Representation of the People Act, 1951—Sections 80 and 83—Conduct of Election Rules, 1961—Rule 63—Election Petition—Dismissal with costs—Challenged—Defects in counting of votes—Case of election petitioner not substantiated—Appellant, election petitioner himself or his counting agent could not make out a case that the votes which were caste in favour of election petitioner were counted less—Returning Officer also deposed that he conducted the counting impartially and no illegality was committed—Single Judge of the High Court concluded that there was no irregularity or illegality committed by the Returning Officer or their staff in counting—He found that except arithmetical mistakes there was nothing much—Single Judge held that sufficient particulars were given in the petition—However, grounds sought to be raised before the Returning Officer and before the Election Commission were at variance—Allegations during the trial also were not substantiated by oral or documentary evidence—Whether Single Judge of the High Court was justified in dismissing election petition with costs of Rs. 1000/—(Yes).

       Held : The counting is regulated by the election rules known as The Conduct of Election Rules, 1961. The Conduct of Election Rules, 1961 details how the counting is to be undertaken. Rule 63 of the Act contemplates that if during the course of counting it is found that ballots are not being properly scrutinized and counted the objection can be raised from the side of the candidates and that objection should be raised within the course of counting and if it is found to be correct then the returning officer can direct the recounting and after the recounting is over he shall amend the result sheet in Form 20 to the extent necessary after such re-count and shall announce the amendments so made by him. According to sub-rule 2, the candidate or his agent has a right to apply for re-count of votes either wholly or in part. Therefore, as per Rule 63 the re-counting can be ordered provided there are good reasons for it. Now, in the present case during the course of counting an application was made to the Election Commission of India as Annexure-5 and marked as exhibit-2 wherein it has been stated that there was difference in signature of the presiding Officer on the Ballot papers of Booth Nos. 105 and 106 and 107, it was alleged that Rastriya Janta Dal candidate had received 99 of the votes polled. In respect of another two booths there was another application as Annexure-5/A, although the same could not be produced in original but there was allegation that there were irregularities in the signature of the Presiding Officer of Booth Nos. 225 and 249. He filed an another application for recounting before the Chief Election Commissioner, New Delhi which was marked as Ext. 1 of Annexure 6 of the Election Petition wherein grounds raised that the appellant lost the election by a margin of 265 votes whereas number of votes rejected were 2002 and several votes were wrongly declared invalid. (Para 19)

       These are some of the suggestions which were given by the learned counsel for the respondent No. 1. But before parting with the case, we would like to suggest that the Election Commission should consider posting of some personnel of Para-military force inside the polling booth in addition to the law and order duty outside the polling booths. Some cameras should be installed in the polling booths to keep a vigilance on the local staff on duty. It has come to our notice that sometimes local staff which is appointed to conduct the election become party to the unfair and illegal practice. The para-military staff outside the polling booth maintains law and order situation outside but what transpires inside the polling booth is beyond their reach. Therefore, the Election Commission may consider some measures to appoint some of the personnel from para-military force to be deputed inside the polling booth so as to keep eye on local staff who are entrusted to conduct the election. This will have sobering effect on staff that they are under vigilance of para-military force. It has also come to our notice that the money which is allotted for the conduct of election is utilized for other purpose that is other than for the conducting of the election like purchasing odd items. The Election Commission should insist the State to utilize the amount made available to them for conduct of election and for no other purpose. Some of the funds have also been utilized for entertainment of the election observers. This should be taken care by the Election Commission and strict instructions should be given to observers not to accept undue hospitality of State because that would unnecessarily compromise their objectivity and transparency. (Paras 25 and 26)