2025 INSC 332
SUPREME COURT OF INDIA
(HON’BLE
SANJAY KAROL, J. AND HON’BLE NONGMEIKAPAM KOTISWAR SINGH, JJ.)
VIJAY BAHADUR
Petitioner
VERSUS
SUNIL KUMAR
Respondent
Civil
Appeal No.14311 OF 2024-Decided on 06-03-2025
Civil, Election
U.P. Panchayat Raj
Act, 1947, Section 12-C – Election for post of ‘Pradhan’ – Challenge as to - Election petition – Recount of votes - Whether the
Sub-Divisional Magistrate, was justified in ordering a recount of the votes
cast? - Allegation made is that there is a disparity in the count of votes
informed to the appellant and that finally disclosed in the official form - It
relates to 19 votes, i.e., the difference between 1193 and 1213 - The margin of
victory of the respondent was 37 votes, and so, in a sense, victory of position
would remain yet elusive of the appellant - However, this Court’s concern lies
away from who is in power, and instead is in how one got to power - This
process has to be in accordance with constitutional principles and established
norms - if not, then such a person has to be deprived of the power, and the
decision-making by the people must begin once more - It has also come on record
that deliberate attempts have been made to benefit the ultimate victor such as
the use of police force to remove the appellant from the vicinity of the
polling area - The diary of the Presiding Officer of the polling booths, which
is an essential document recording the casting of votes, could not be found
despite a concerted effort - If the
Presiding Officers’ records are missing and cannot be verified, it can be found
that the final conclusion is within the realm of questionability - Each and
every document pertaining to an election is important and all efforts should be
made to preserve the same - Three of the four candidates question the veracity
of the election and the manner in which it was conducted, and that important
documents pertaining to the election are missing and such absence is
unexplained, we are of the view in the present facts that a recount would be
justified - Judgment of the High Court liable to be set aside and order passed
by the Sub-Divisional Magistrate in Election Petition restored - Registry directed to communicate a copy of this
judgment to the Registrar General, High Court who shall ensure passage of the
same to the concerned Magistrate, enabling them to set a date for recount of
the result after hearing the parties.
(Para
14 to 20)
JUDGMENT
Sanjay Karol, J.:-
PRELUDE
“
At
the bottom of all the tributes paid to democracy is the little man, walking
into the little booth, with a little pencil, making a little cross on a little
bit of paper—no amount of rhetoric or voluminous discussion can possibly
diminish the overwhelming importance of that point.”
-
Winston Churchill -
House
of Commons,
31
October 1944
1.
In the famous Gettysburg Address[Abraham
Lincoln Presidential Library and Museum-
https://presidentlincoln.illinois.gov/gettysburg] delivered on 19th
November, 1863, President Abraham Lincoln uttered possibly the best description
of democracy there ever would be –
“government of the people, by the people, for the
people”
People, unquestionably, are at the center of
this conception. The Indian Constitutional vision exemplifies this position.
Right from the inception of democratic rule, universal adult franchise has
found its place in our system of governance. Each election upholding these
cherished values of public participation, equality and integrity of the vote is
a testament to the vision of the founders. Each and every citizen, when it
comes to choosing representatives in the parliamentary system, is indeed equal,
when in other scenarios they may not be so, for a variety of reasons - class
and caste divisions that are still deeply entrenched, gender inequality, lack
of awareness and opportunities for disabled persons, etc.
This momentary
equality assumes further importance as it signifies the achievability of the
aspiration of equality for all through constitutional mechanisms. Granted that
equality in other spheres cannot only be a product of constitutional
action, and have to be accompanied by social change, but nonetheless, the
strength of constitutional action is manifested thereby.
A.M Ahmadi, CJI,
writing for a Constitution Bench in T.N Seshan v. Union of India[(1995) 4 SCC 611] , while
concerned with an Ordinance promulgated by the President of India being
Ordinance (No. 32 of 1993) entitled “The Chief Election Commissioner and other
Election Commissioners (Conditions of Service) Amendment Ordinance, 1993” to
amend “The Chief Election Commissioner and other Commissioners (Conditions of
Service) Act, 1991” challenged by the then incumbent Chief Election
Commissioner, observed :
“10. The Preamble of
our Constitution proclaims that we are a Democratic Republic. Democracy being
the basic feature of our constitutional set-up, there can be no two opinions
that free and fair elections to our legislative bodies alone would guarantee
the growth of a healthy democracy in the country…” More recently, this Court
in Anoop Baranwal v. Union of India[(2023)
6 SCC 161], the majority speaking through K.M Joseph J., observed :
“124. Unlike demands
of a formal democracy, the hallmark of a substantive democracy and if we may say
so, a liberal democracy must be borne in mind. Democracy is inextricably
intertwined with power to the people. The ballot, is more potent than the most
powerful gun. Democracy facilitates a peaceful revolution at the hands of the
common man if elections are held in a free and fair manner. Elections can be
conflated with a non-violent coup capable of unseating the most seemingly
powerful governing parties, if they do not perform to fulfil the aspirations of
the governed. Democracy is meaningful only if the sublime goals enshrined in
the Preamble to the Constitution receive the undivided attention of the rulers,
namely, social, political and economic justice. The concepts of liberty,
equality and fraternity must not be strange bedfellows to the ruling class.
Secularism, a basic feature of the Constitution must inform all actions of the
State, and therefore, cannot be spurned but must be observed in letter and
spirit. Democracy can be achieved only when the governing dispensation
sincerely endeavours to observe the fundamental rights in letter and spirit.
Democracy also, needless to say, would become fragile and may collapse, if only
lip service is paid to the rule of law.” (Emphasis supplied)
2.
Although there exists copious amounts of literature on a few of the topics
touched upon in the preceding paragraph, i.e., democracy, free and fair
elections, constitutional governance, fundamental rights, etc., this brief
forerunner became important given the context in which this appeal arises.
THE
APPEAL
3.
Before us are, primarily, two persons, opponents in the electoral process, the
appellant, the vanquished and the respondent, the victor. Challenged
herein is the judgment and order dated 27th January 2023 passed by the High
Court of Judicature at Allahabad in Writ-C No.35734 of 2022, under Article
226 of the Constitution of India.
4.
By way of background, it shall suffice to record that the Government of the
State of Uttar Pradesh declared election for the position of ‘Gram Pradhan’ for
the village Chaka @ Chak, Saidabad, Tehsil Handia, in the District of
Prayagraj, vide notification dated 17th March 2021. Voting therefor was to take
place on 2nd and 3rd of May 2021. The genesis of the appellant’s discontent was
the inconsistency between the Presiding Officer’s statement to him that in
polling booths 43, 44 and 45 a total of 1194 votes were cast, and the final
tally given under ‘Form 46’ which showed a total of 1213 votes cast in the said
booths.
PROCEEDINGS
LEADING UPTO THIS APPEAL
5.
Aggrieved by this difference of votes, and, obviously, the end result, wherein
Pradhan’s seat remained 37 votes too far out of his reach, suspecting there to
be a foul play, the appellant wrote to the Election Officer, alleging that
votes in his favour were cancelled by the persons deputed at table Nos.13, 14
and 15 at Nyay Panchayat Utarav, in connivance with respondent No.1. It
was, thus, requested of the Election Officer that he may affect a recount of
the votes of booth Nos.43, 44 and 45. This application was not entertained by
the Officer.
5.1
The appellant then preferred Election Petition No.0210 of 2021 titled
analogously to this appeal. The substance of the allegations made/grievance
agitated before the Sub-Divisional Magistrate in an application under Section
12-C(1) of the U.P. Panchayat Raj Act, 1947[Hereinafter,
‘the Act’] was captured in paragraphs 7 to 10 thereof. The same is
reproduced hereunder : -
“7. That presiding
officer/election officer, after voting was completed; prior to seal of ballot
box, orally informed the petitioner that for the post of Pradhan at polling
booth 43, 44 and 45, total 1194 votes have been casted. Although as per form
46, total 1213 votes were casted. It is clear from the above said counting that
19 (Nineteen) ballot papers were prepared and have been inserted in ballot box
bringing it from outside. Hence this 19 (Nineteen) votes are illegal and liable
to be cancelled. Ballot box was not sealed before the agent of petitioner.
8.That as per the form
46, at polling booth no 43, total21 votes, at polling booth no 44, total 20
votes and at polling booth no. 45, total 20 votes, have been cancelled. Correct
fact is this that Election officer intentionally in order to extend benefit to
defendant Sunil, has cancelled the votes casted in favor of petitioner. As to
why election officer did so, he is the best person to reply the same.
9. That during
counting, counting officer declared that at polling booth no 43, petitioner
Vijay Bahadur got 233 votes, defendant Sunil Kumar got 231 votes, defendant
Santosh 9, and defendant Vinod got 8 votes and 20 ballot papers were declared
invalid. At polling booth no 44, petitioner Vijay Bahadur got 148 votes,
defendant Sunil Kumar got 184, defendant Santosh 23, and defendant Vinod got 2
votes and 20 ballot papers were declared invalid. At polling booth no 45,
petitioner Vijay Bahadur got 133 votes, defendant Sunil Kumar got 136,
defendant Santosh 43, and defendant Vinod got 12 votes and 10 ballot. papers
were declared invalid. Although as per form 46, at polling booth no 43, total
21 votes have been declared invalid and in polling booth no 45, defendant Sunil
Kumar shown have got 136 votes. From above statement, this finding is clear
that election officer who have shown number of votes in form no 46, they are
different from the number of votes declared.”
5.2
By way of evidence, the testimonies of the appellant, one Nitesh Kumar and
Vinod Kumar (one of the contestants in the Election) were recorded along with
that of respondent No.1 herein, either by way of oral testimony or statement
given.
5.3
The appellant sought information under the Right to Information Act, 2005,
seeking the ‘Matpatra Lekha’ and Diary of the Presiding Officer. The competent
authority directed the Assistant Election Officer vide order dated 11th August,
2022 to provide him the documents as sought. However, in his reply dated 30th
August, 2022, the Assistant Election Officer said that the documents could
not be located despite their best efforts and, therefore, could not be
provided.
5.4
The Learned Sub-Divisional Magistrate, having considered the evidence on record
passed order dated 31 st October 2022, acceding to the appellant’s prayer and
directing a recount of the votes cast at Booth Nos.43, 44 and 45. Relevant
extract thereof is as below :
“On the basis of the
written arguments submitted by the petitioner and the oral arguments advanced
by the defendant, I am in conclusion that there are sufficient grounds to get
the recounting done by allowing the present petition. I find it fit in law to
get the recounting done on the post of Gram Pradhan of Gram Panchayat Chaka @
Chakpurandare for maintaining the belief of the petitioner on the judicial
system and the counting process. Thus, on the basis of affording opportunity of
sufficient hearing to the petitioner and defendant No.1 and statement and the
evidence submitted by the parties, the arguments of the learned counsel for the
parties, the arguments of the learned counsel for the parties (S/Sh.Vishnu
Pandey and Ashok Kumar Mishra learned counsel for the petitioner) and the
judgment produced and the arguments of S/Sh. K.K. Shukla and O.P. Mishra,
learned counsel for defendant No.1 advanced intellectually on Issue Nos. 1 to
5, and the submissions and evidence submitted by defendant No.1 on Issue Nos.6,
7, 8, and on the basis of observations made on the issues in totality, I find
the petition filed by the petitioner, the arguments advanced by the learned
counsel for the petitioner, and the judgments liable to be allowed in this
election petition. I find sufficient grounds to get the recounting done by
allowing the election petition. As after uploading the proceeding/ order
of disposing of the petition finally at the Revenue Court Management System, it
would not be possible to upload the recounting result, in such a circumstance
this interlocutory order is being uploaded.
Hence, it is ordered
that while allowing the election petition filed against Election Result dated
02.05.2021 (Proforma-46) of Gram Pradhan (Gram Panchayat) of Gram Panchayat
Chaka @ Chakpurandar of Vikas Khand Saidabad under the Third Phase Panchayat
Election – 2021, the order of recounting passed…”
5.5
Aggrieved by this order, respondent No.1 herein filed a revision bearing
particulars of Election Revision No.146 of 2022. The same was dismissed by
order dated 5th November 2022.
5.6
It is, at this stage, that the writ petition, in which the judgment impugned
herein was passed, came to be filed.
6.
In the writ petition, respondent No.1 herein, argued inter alia:
(a) The challenge on
the part of respondent No.1, (appellant herein) to Form 46 is unfounded for
there is no irregularity in the functions carried out by the election officer.
(b) The petitioner
(respondent herein) has, in support of his position of the actions of the
Election Officer being correct and well-founded, has produced affidavits of
certain
persons declaring that there indeed had been
no irregularity to taint the sanctity of the election.
(c) The 51 votes
declared illegal by the Election Officer has been so done after due inspection.
The Sub-Divisional Magistrate who was arrayed as respondent No.7 had, despite
the Election Officer having done so, in accordance with law, ordered a recount.
(d) No documentary
evidence had been placed on record by the respondent or those who submitted
affidavits in support of their position and neither did the Magistrate consider
the content of the affidavit produced by those in support of the petitioner
while passing the order of recounting of votes.
(e) The order passed
by the Sub-Divisional Magistrate is based on vague and indefinite allegations,
and is further, non- speaking as it does not record any independent finding.
(f) The principle of
the ‘secrecy of the ballot’ stood compromised by the order of recount.
It
was, thus, prayed for that a writ of certiorari be issued, quashing the order
of recount and the further order dated 7th November 2022, fixing 29th November
2022 as the date for the recount. Further, it was prayed that a writ in the
nature of mandamus be issued to the respondent No.1, directing him not to
interfere in the work of the petitioner as ‘Gram Pradhan’.
7.
The writ petition making the arguments as above came to be heard by a learned
Single Judge of the High Court. It is this judgment and order which is
challenged in this appeal. The relevant extract of the impugned judgment is as
under :
“15. The above
material finding is based on without inspection of Proforma-46 as the Election
Tribunal despite power has not called the documents for verification in regard
to verify allegations of difference between the number of votes cast and the
number of vote counted. The above finding is completely based on an oral
assertion as mentioned in the election petition as well as the impugned order
that the Election Officer orally communicated a different number of total votes
cast. The petitioner has not submitted any document I support of their
assertion made in the election petition though the assertion made in election
petition appears to be sufficient but in absence of any supporting documents
are not sufficient to pass any order of recounting as observed above …”
THE CASE OF THE
PARTIES
8.
Aggrieved by the judgment and order, as aforesaid, the appellant has approached
this Court under Article 136 of the Constitution of India. By way of
this special leave petition, it is urged that -
(a) The decision of
the Sub-Divisional Magistrate was in accordance with the judgment of this Court
in Ram Sewak Yadav v. Hussain Kamil Kidwai & Ors. [AIR 1964 SC 1249] That apart, such an order is justified in
view of the averment made in paras 7, 8, 9, 10 and 12 in the Election Petition
as also supported by oral evidence.
(b) The principle of
secrecy of the ballot is not compromised by the order of the Sub-Divisional
Magistrate and as such, the order of the High Court is erroneous.
9.
It is further submitted that :-
(a) An order passed
under Section 12-C of the Act is final and not open to challenge
under Article 226 of the Constitution of India. This is in view
of Article 243-O of the Constitution, which postulates a bar in
respect of interference by the Courts in electoral matters.
(b) The above-named
Act provides for a remedy against an order passed therein, i.e., Section
12-C (6) of the Act by way of revision.
(c) As to when an
order for inspection/recounting of ballot papers can be passed stands clarified
by the Full Bench of the High Court in Ram Adhar Singh v. District
Judge, Ghazipur[1985 SCC OnLine All 246] which
followed the judgments of this Court in Hussain Kamil Kidwai (supra)
and Bhabhi v. Sheo Govind [(1976)
1 SCC 687] which were passed interpreting the provisions of the
Representation of the People Act, 1951[Hereafter
“RPA”]. In view of the above, it is submitted that the High Court erred in
entertaining a writ petition against an order, which was interlocutory in
nature, aimed at doing complete justice inter se the parties.
(d) The
Act does not provide directly for the power of recount but the same is
implicit, having regard to the powers contained in Section 12-C and the same is
to be exercised as per the principles laid down in various decisions
of this Court.
(e) The averments made
in the election petition, more specifically paragraphs 7 to 10 are prima facie
correct, and the High Court erred in setting aside the order of recount without
adverting to findings of improper acceptance and rejection of ballot papers,
returned by the Sub-Divisional Magistrate.
10.
The case of the respondent, as can be understood from the record is as follows:
(a) The appellant has
not produced any document whatsoever to support his claims/assertions and,
therefore, the order of recount is on insufficient basis;
The secrecy of ballots
should not be violated on flimsy grounds that are frivolous, vague and
indefinite.
(b) The respondent, in
favour of the stand taken by the Election Officer has filed affidavits of
certain persons attesting to the absence of irregularity in the process
adopted. Vinod Kumar, who has submitted an affidavit in favour of the recount
supporting the case of the petitioner herein was, in fact, not present at the
polling booth since he was scheduled to enter into matrimony on that date. One
Ajay Kumar, who was the agent of the above-said Vinod Kumar at the polling
booth, has on oath, stated that no irregularity had been committed by the
Election Officer;
(c) Given the above,
Vinod Kumar’s affidavit, was therefore, ostensibly false which in itself is a
punishable offence. The High Court, hence, in the absence of any documentary
evidence to support the oral submissions made by the appellant herein, rightly
set aside the order of recount.
11.
The question that flows from having heard the learned counsel for the parties
apropos the submissions recorded supra, for the consideration of this Court is
whether the Sub-Divisional Magistrate, was justified in ordering a recount of
the votes cast.
ANALYSIS
AND FINDINGS
12. The
U.P. Panchayat Raj Act, 1947, under Section 12 provides for the
constitution of Gram Panchayats, the manner of election thereto, allowances of
the elected members, superintendence of the elections, taking of vehicles and
premises for the purpose of elections, procedure to question the elections,
etc. We are concerned here with Section 12-C which concerns the filing of
applications questioning the elections, since it is this provision of law, to
which the appellant herein took recourse. It reads:
“12-C. Application for
questioning the elections – (1) The election of a person as Pradhan 2 [* * *]
or as member of a Gram Panchayat including the election of a person appointed
as the Panch of the Nyaya Panchayat under Section 43 shall not be called in
question except by an application presented to such authority within such time
and in such manner as may be prescribed on the ground that –
(a) the election has
not been a free election by reason that the corrupt practice of bribery or
undue influence has extensively prevailed at the election, or
(b) that the result of
the election has been materially affected –
i- by the improper acceptance or rejection of
any nomination or;
ii- by gross failure
to comply with the provisions of this Act or the rules framed thereunder.
(2) The following
shall be deemed to be corrupt practices of bribery or undue influence for the
purposes of this Act.
(A) Bribery, that is
to say, any gift, offer or promise by a candidate or by any other person with
the connivance of a candidate of any gratification of any person whomsoever,
with the object, directly, or indirectly of including –
(a) a person to stand
or not to stand as, or withdraw from being, a candidate at any election; or (b)
an elector to vote or refrain from voting at an election; or as a reward to –
i- a person for having so stood or not stood or having withdrawn his
candidature; or ii- an elector for having voted or refrained from voting.
(B) Undue influence,
that is to say, any direct or indirect interference or attempt to interfere on
the part of a candidate or of any other person with the connivance of the
candidate with the free exercise of any electoral right; Provided that without
prejudice to the generality of the provisions of this clause any such person as
is referred to therein who – i- threatens any candidate, or any elector, or any
person in whom a candidate or any elector is interested, with injury of any
kind including social ostracism and ex- communication or expulsion from any
caste or community; or ii- induces or attempts to induce a candidate or an
elector to believe that he or any person in whom he is interested will become
or will be rendered an object of divine displeasure or spiritual censure, shall
be deemed to interfere with the free exercise of the electoral right of
such candidate or elector within the meaning of this clause.
(3) This application
under sub-section (1) may be presented by any candidate at the election or any
elector and shall contain such particulars as may be prescribed. Explanation –
Any person who filed a nomination paper at the election whether such nomination
paper was accepted or rejected, shall be deemed to be a candidates at the
election.
(4) The authority to
whom the application under sub- section (1) is made shall in the matter of – i-
hearing of the application and the procedure to be followed at such hearing;
ii- setting aside the
election, or declaring the election to be void or declaring the applicant to be
duly elected or any other relief that may be granted to the petitioner, have
such powers and authority as may be prescribed.
(5) Without prejudice
to generality of the powers to be prescribed under subsection (4) the rules may
provide for summary hearing and disposal of an application under sub-section
(1).
[(6) Any party aggrieved
by an order of the prescribed authority upon an application under sub-section
(1) may, within thirty days from the date of the order, apply to the District
Judge for revision of such order on any one or more the following grounds,
namely –
(a) that the
prescribed authority has exercised a jurisdiction not vested in it by law;
(b) that the
prescribed authority has failed to exercise a jurisdiction so vested;
(c) that the
prescribed authority has acted in the exercise of its jurisdiction illegally or
with material irregularity.
(7) The District Judge may dispose of the
application for revision himself or may assign it for disposal to any
Additional District Judge, Civil Judge or Additional Civil Judge under his
administrative control and may recall it from any such officer or transfer it
to any other such officer.
(8) The revising
authority mentioned in sub-section (7) shall follow such procedure as may be prescribed,
and may confirm, vary or rescind the order of the prescribed authority or
remand the case to the prescribed authority for re-hearing and pending its
decision pass such interim orders as may appear to it to be just and
convenient.
(9) The decision of
the prescribed authority, subject to any order passed by the revising authority
under this section, and every decision of the revising authority passed under
this section, shall be final.]”
13.
Since the question involved in this appeal appertains to recount of votes, let
us consider the law on this aspect - as has been laid down through various
pronouncements of this Court, in the context of various legislations.
13.1 A Constitution
Bench of this Court in Hussain Kamil Kidwai (supra), in the context
of the 1962 Lok Sabha elections to the Barabanki Constituency, wherein the
appellant before this Court had been declared elected, and the respondent who
was one of the contestants in the election, was aggrieved and his grievance was
heard and eventually allowed by the High Court, observed that an order for
inspection of ballot papers is not to be made as a matter of course and it is
only upon the fulfillment of certain conditions that the same can be permitted.
The relevant extract is :-
“6. An order for inspection
may not be granted as a matter of course : having regard to the insistence upon
the secrecy of the ballot papers, the court would be justified in granting an
order for inspection provided two conditions are fulfilled:
(i) that the petition
for setting aside an election contains an adequate statement of the material
facts on which the petitioner relies in support of his case; and
(ii) the Tribunal is
prima facie satisfied that in order to decide the dispute and to do complete
justice between the parties 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 petition not supported by material facts or to fish out evidence to support
such pleas. The case of the petitioner must be set out with precision supported
by averments of material facts. To establish a case so pleaded an order for
inspection may undoubtedly, if the interests of justice require, be granted.
But a mere allegation that the petitioner suspects or believes that there has
been an improper reception, refusal or rejection of votes will not be
sufficient to support an order for inspection.”
13.2 In Vadivelu
v. Sundaram[(2000) 8 SCC 355] ,
a three-Judge Bench of this Court while concerned with a dispute regarding the
election for the post of President of Vannavalkudi Village
Panchayat, Pudukkottai District in Tamil Nadu, which was governed by the
Tamil Nadu Panchayats (Elections) Rules 1995, held :
“16. …this Court has
consistently taken the view that re- count of votes could be ordered very
rarely and on specific allegation in the pleadings in the election petition
that illegality or irregularity was committed while counting. The petitioner
who seeks re-count should allege and prove that there was improper acceptance
of invalid votes or improper rejection of valid votes. If only the court is
satisfied about the truthfulness of the above allegation, it can order re-count
of votes. Secrecy of ballot has always been considered sacrosanct in a
democratic process of election and it cannot be disturbed lightly by bare
allegations of illegality or irregularity in counting. But if it is proved that
purity of elections has been tarnished and it has materially affected the
result of the election whereby the defeated candidate is seriously prejudiced,
the court can resort to re-count of votes under such circumstances to do
justice between the parties.”
13.3 Sarkaria J.,
writing for the Court in Suresh Prasad Yadav v. Jai Prakash Mishra[(1975) 4 SCC 822], recorded three
scenarios when recount would be justified. The relevant extract of the judgment
is as under:
“6.
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.”
13.4 In Beli Ram
Bhalaik v. Behari Lal Khachi[(1975) 4 SCC
417], wherein the subject matter of dispute was the election of the
respondent therein from the ‘6-Kumarsain Assembly Constituency’ of the State of
Himachal Pradesh, and so, was obviously governed by the RPA, considered a
number of precedents including Hussain Kamil Kidwai (supra), the
Court observed :
“45. ... Since an
order for a re-count touches upon the secrecy of the ballot papers, it should
not be made lightly or as a matter of course. Although no cast-iron rule of
universal application can be or has been laid down, yet from a beadroll of the
decisions of this Court, two broad guidelines are discernible: that the court
would be justified in ordering a re-count or permitting inspection of the
ballot papers only where (i) all the material facts on which the allegations of
irregularity or illegality in counting are founded, are pleaded adequately in
the election petition, and (ii) the Court/Tribunal 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… “
13.5 The law mandates
that secrecy of the ballot should be maintained. In Satyanarain
Dudhani v. Uday Kumar Singh[1993 Supp (2)
SCC 82], the Court held:
“10. It is thus
obvious that neither during the counting nor on the completion of the counting
there was any valid ground available for the recount of the ballot papers. A
cryptic application claiming recount was made by the petitioner-respondent
before the Returning Officer. No details of any kind were given in the said
application. Not even a single instance showing any irregularity or illegality
in the counting was brought to the notice of the Returning Officer. We are of
the view when there was no contemporaneous evidence to show any irregularity or
illegality in the counting ordinarily, it would not be proper to order recount
on the basis of bare allegations in the election petition. We have been taken
through the pleadings in the election petition. We are satisfied that the
grounds urged in the election petition do not justify for ordering recount and
allowing inspection of the ballot papers. It is settled proposition of law that
the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An
order of recount cannot be granted as a matter of course. The secrecy of the
ballot papers has to be maintained and only when the High Court is satisfied on
the basis of material facts pleaded in the petition and supported by the
contemporaneous evidence that the recount can be ordered.”
13.6 In Udey Chand v. Surat Singh[(2009) 10 SCC 170], this Court while
entertaining an appeal by special leave, from a judgment and order of the High
Court of Punjab and Haryana wherein the order of the Election Tribunal
directing recount of the votes cast in the election for the post of Sarpanch,
Gram Panchayat, Village Badshahpur, in a petition filed under Section
176 of the Haryana Panchayat Raj Act, 1994, observed:-
“12. The importance of
maintenance of secrecy of ballot papers and the circumstances under which that
secrecy can be breached, has been considered by this Court in several cases. It
would be trite to state that before an Election Tribunal can permit scrutiny of
ballot papers and order re-count, two basic requirements viz.:
(i) the election
petition seeking re-count of the ballot papers must contain an adequate
statement of all the material facts on which the allegations of irregularity or
illegality in counting are founded, and
(ii) on the basis of
evidence adduced in support of the allegations, the Tribunal must be prima
facie satisfied that in order to decide the dispute and to do complete and
effectual justice between the parties, making of such an order is imperatively
necessary, are satisfied.”
14.
Having considered the law as aforesaid, let us now consider, in light thereof,
the prayer for recount which has been allowed by the Sub-Divisional
Magistrate, but the said direction, set aside by the High Court in view of the
impugned judgment. The allegation made is that there is a disparity in the
count of votes informed to the appellant and that finally disclosed in the
official form. It relates to 19 votes, i.e., the difference between 1193 and
1213. The margin of victory of the respondent was 37 votes, and so, in a sense,
victory of position would remain yet elusive of the appellant. However, this
Court’s concern lies away from who is in power, and instead is in how one got
to power. This process has to be in accordance with constitutional principles
and established norms - if not, then such a person has to be deprived of the
power, and the decision-making by the people must begin once more.
15.
When the officer was present there and he informed the candidate, appellant
herein, of the number of votes cast, why should there be any difference? We
have already observed that each vote has its own value irrespective of its
effect in the final outcome of the election. Its sanctity has to be protected.
It was a four-sided election, i.e., four persons were contesting for the post
of ‘Pradhan’. Three of the four persons submitted by way of affidavit that they
had doubts regarding the propriety of the election, and they would support a
recount of votes.
16.
It has also come on record that deliberate attempts have been made to benefit
the ultimate victor such as the use of police force to remove the appellant
from the vicinity of the polling area. The diary of the Presiding Officer of
the polling booths, which is an essential document recording the casting of votes,
could not be found despite a concerted effort.
17.
The candidates in the election wanting to keep an eye on voting during the day
and inspect records of the same is something which cannot be denied to them. If
the Presiding Officers’ records are missing and cannot be verified, it can be
found that the final conclusion is within the realm of questionability. Each
and every document pertaining to an election is important and all efforts
should be made to preserve the same.
18.
The election in question took place in the year 2021 and the process of law has
culminated by way of this judgment, four years later. For the reasons
aforesaid, that three of the four candidates question the veracity of the
election and the manner in which it was conducted, and that important documents
pertaining to the election are missing and such absence is unexplained, we are
of the view in the present facts that a recount would be justified.
19.
The judgment of the High Court passed in Writ-C No.35734 of 2022
titled Sunil Kumar v. State of U.P. And Ors. dated 27th January 2023
is, therefore, set aside and order dated 31 st October 2022 passed by the
Sub-Divisional Magistrate in Election Petition No.02010/2021, is restored. The
appeal is allowed.
20.
Registry is directed to communicate a copy of this judgment to the Registrar
General, High Court of Judicature at Allahabad, who shall ensure passage of the
same to the concerned Magistrate, enabling them to set a date for recount of
the result after hearing the parties.
Pending
application(s), if any, shall stand disposed of.
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