Supreme Court of India
JASWANT SINGHversusVIRENDER SINGH AND ORS.
- Citation
- 1994 INSC 506
- Decided
- 9 November 1994
Holding
The Supreme Court held that the returned candidate is bound by the earlier dismissal of the Special Leave Petition and cannot re‑agitate the recount order, and that post‑declaration seal irregularities do not constitute a ground to void the election, nor is there a basis to order a partial repoll.
Summary
The appellant Jaswant Singh and the respondent Virender Singh contested the 1991 Haryana Legislative Assembly election, with the respondent declared elected. The appellant filed an election petition under Sections 81 and 83 of the Representation of the People Act, 1951 alleging irregularities, tampering of vote counts and violations of the Election Commission's handbook, and sought a recount and declaration of his own election. The trial court ordered a recount of specific booths; the respondent challenged this order in a Special Leave Petition, which the Supreme Court dismissed, making the recount order final. After the recount, the appellant argued that broken or missing seals on ballot packets and post‑declaration mishandling warranted a partial repoll, but the High Court dismissed the petition and the appellant appealed. The Supreme Court held that the earlier dismissal of the SLP barred re‑litigation of the recount order, that post‑declaration seal irregularities are not grounds for voiding an election under Section 100 of the Act, and that no case was made out for a partial repoll; the appeal was dismissed and the appellant was admonished for contempt of court.
Issues considered
- The validity of re‑challenging the order of recount after the Supreme Court had dismissed the respondent's SLP (constructive res judicata).
- Whether post‑declaration tampering of ballot packet seals constitutes a ground to set aside an election under Section 100 of the Representation of the People Act, 1951.
- Whether failure to strictly comply with sealing and custody rules after the result can void the election.
- Whether the Supreme Court can order a partial repoll under its jurisdiction (Article 142) or under the Representation of the People Act.
- Whether the appellant's language in the stay application and transfer petition amounts to contempt of court.
Legislation cited
- Code of Civil Procedures. 191
- Constitution of Indias. 136, s. 142
- Contempt of Courts Act, 1971s. 2
- Representation of the People Act, 1951s. 100, s. 116A, s. 81, s. 83
Subjects
election petitionrecountpartial repollRepresentation of the People Actpost‑declaration irregularitiesconstructive res judicatacontempt of courtsealing of ballot papersArticle 142
Judgment
A JASWANT SINGH
v.
VIRENDER SINGH AND ORS.
NOVEMBER 9, 1994
B [DR. A.S. ANAND AND FAIZAN-UDDIN, JJ.]
Constitution of India-Article 136-Represeniation of the People Act,
1951-Section 116A-Appeal-Election Petition-Allegations regarding
commission of irregularities and ill(!galities during counting-Order of
recount-Challenged-SLP dismissed-Returned candidate bound by order
c of Supreme Court-He cannot be permitted to reagitate issue of recounting
again.
ELECTION-Representation of the People Act, 1951-Section 100-
Election Petition-Alleged tampering with . election material after ~-···
declaration of result-Not a ground for avoiding an election-Post
D declaration irregularities or illegalities-No ground to avoid an election.
ELZCTION-Representation ofthe People Act, 1951-Section 116 A-
Repoll-Whether it is within province ofSupreme Court to order a repo/1-
Question left open-Besides, allegations contained in petition did not make
out any case for ordering a partial repoll.
E
Contempt of Courts Act, 197 I-Section 2-Contempt-Election
Petition-Order for recount-Application seeking stay offurther arguments
to enable appellant to move Supreme Court-Transfer Petition-Aspersions
cast on the trial judge of the High Court in discharge of his judicial
function-Aspersions derogatory, scandalous and uncalled for-Appellant,
F
an advocate-USP. of objectionable and intemperate language-Contempt
of Court-Unqualified regre: expressed pleading 'lack ofunderstanding'-
Accepted-Appellant was found to be genuinely repentent-However, a
strong admonition and warning issued
G The appellant and respondents were the candidates for the
elections to the Haryana Legislative Assembly. Respondent No. 1 was
declared elected. The appellant filed an election petition u/s 81/83 of
Representation of the People Act, challenging the election of
respondent No. l. The challenge was based mainly on the ground of
commission of irregularities and illigalities during the counting. The
H appellant complained that the method adopted by the Returning
336
JASWANT SINGH v. VIRENDER SINGH 337
Officer was contrary to the guidelines contained in th~ Handbook for A
Returning Officers issued by the Election Commission of India. It was
alleged that there had been erasures, cuttings, over-writings and
tampering with the figures of various votes pol!ed by different
candidates and also in respect of the rejected ballot papers. According
to the appellant, the result prepared by the Returning Officer was
inaccurate and the irregularities committed during the counting of B
votes and preparing of Forms XVI and XX had materially affected the
result of the election in so far as the returned candidate was concerned.
The appellant prayed for the election of respondent No. 1 to be
declared void and set aside. He prayed for a recount and for a
declaration that he be declared as duly elected.
The respondent No. 1 raised some preliminary objections to the
maintainability of the election petition. It was stated that some of the
allegations contained in the election petition were scandulous while
others were vague and the same did not disclose any cause of action.
The Trial Court held that the over-writings, cuttings and erasures D
had made Forms XVI and XX suspicious and the correctness of the
record doubtful An order was made directing recount of votes. The
returned candidate challenged this order of recount in Supreme Court
through a special leave petition, alleging that no ground had been made
out for ordering recount or inspection of the ballot papers because the
petition was deficient in material facts and particulars and that the
impugned order directing a recount/inspection violated the secrecy of
the ballot papers. This petition was dismissed and the
inspection/recount was, thereafter, carried out and a report was
submitted to the High Court. The partial recount falsified the
allegations made by the election petitioner in the petition.
F
After the report of the designated officer was submitted, the
election petitioner filed an application before the High Court quoting
some 'observations; of the Judge made during the hearing and
objecting to the manner in which the two sealed envelopes containing
ballot papers, on which objections had been raised by both sides during G
the recount, were handled by the Court and sought stay of further
arguments to enable the petitioner to approach the Supreme- Court.
Thereafter, a Transfer Petition was filed in the Supreme Court and the
same was dismissed. Neither the petitioner nor his counsel thereafter
appeared in the High Court and the election petition was ultimately
dismissed. Hence this appeal. ·H
338 SUPREME COURT REPORTS (1994) SUPP. S S.C.R.
A In this appeal, the appellant again referred to the suspicious nature
of the election record and reiterated the submissions made in the High
Court, on the acceptance of which recount had been ordered and urged
that the High Court should have ordered a partial repoll and not
merely a recount. The appellant then argued that the manner in which
the Returning Officer had dealt with the election material, after the
B declaration of the result, coupled with the fact that at the time of
recount by the designated officer, seals of some of the packets
containing ballot papers had been found either broken or missing, the
entire election process hact been vitiated. It was submitted that the
Return'ing Officer had retained the ballot papers in his illegal and
unlawful custody for it period of about two days after the declaration of
c the result and had also kept back the secret special seal of the Election
Commission, besides all XVI Forms, .contrary to the rules and the
instructions. According to the appellants, this court would in exercise of
its jurisdiction under Article 142 of the Constitution of India, with a
view to do complete justice between the parties, direct partial repoll.
D The respondent submitted that the pleadings of the election
petitioner were hopelessly vague and since a judicial recount was :iot a
matter of right, the trial Judge could not have ordered a recount in this
case. It was stated that as the allegations were vague and no supporting·
material had been placed on . the record and therefore, the petition
should have been dismissed as not disclosing any cause of action. The
E respondent vehemently complained about the order directing recount
and described it £S totally unjustified and violative of the secrecy of the
ballot papers. The respondent then submitted that since the outer seals
ofall the trunks containing the sealed packets of the ballot papers were
admittedly found to be in.tact, the broken missing seals of scme of the
packets containing ballot papers (in side the trunks) was of no
F consequence. It was argued that since the designated officer had not
found any discrepancy in the ballot papers contained in all those
packets, the grievance made by th~ appellant had no basis. It was
further submitted that the failure to comply strictly with the provision
of the Rules, orders or instruction as to the forwarding of the election
G documents, after close of the poll and declaration of the result could not
in any event avoid the election of the returned candidate in the absence
of any allegation and proof that post-declaration irregularities were
committed, to cover up pre-declaration illegalities, which could have
. materially affected the result of the election petition. It was stated that
the p~rtial repoll woul~ not be ordered by the. Supreme Court, as the
H direction to hold polls, including partial repoll, fell within the province
JASWAN.T SINGH v. VIRENDER SINGH 339
of the Election Commission and was not a relief which could be granted A
by the courts in an election petition that repoll and recount were two
different situations and that the alleged wrongful acceptance or
rejection of votes or irregularities during counting of votes could not
justify a prayer for repoll.
Dismissing the appeal, this Court B
HELD: 1.1. A challenge to the order of recount was made by
respondent No. 1, the returned candidate through special leave petition
which was dismissed by this Court. It was, therefore, not permissible
again for the returned candidate to raise an argument challenging the
correctness of the order of recount, as the earlier order of dismissal of C
the SLP, in the presence of counsel for the parties, would operate as
constructive res judicata. (352-H, 353-A)
N.C. Horo v. Leander Tiur and Ors., [1989) 4 SCC 364 and Bhag Mal
v. Ch. Prabhu Ram and Ors., [1985) 1 SCC 61, relied·on.
D
1.2. The alleged tampering with the seals of some of the packets
containing the ballot papers, after the declaration of the result, is not a
ground for ~voiding an election through an election.petition. (359-D)
1.3. Post declaration non-compliance with the rules or orders or
instructions for the proper custody of the election material by the E
election staff is not one of the grounds on which the election of a
· candicfate can be set aside. Post electoral irregularities may in a given
case be_ used in aid of the allegations relating to pre-declaration
irregularities or iilegali~ies but by themselves they do not afford any
ground to avoid an election. (360-G)
F
1.4. In the instant case, the breaking of the seals or the missing
seals on some of the packets containing the ballot papers, which were
taken out of the boxes duly sealed, were the result of mishandling of the
packets and were not the result of any tampering with the ballot
papers. (363-H, 364-A)
G
Jagannath Rao v. Raj Kishore and Ors., [1972) 4 SCC 795, relied on.
2. In the instant case, the appellant failed to establish that the
election material had not been sealed properly or kept in safe custody,
as per the procedure prescribed by the guidelines and the Rules. No
prayer for repoll was ever made. Besides, the allegations contained in H
340 SUPREME COURT REPORTS [1994) SUPP. 5 S.C.R.
A the petition did not make out any case for ordering a partial repoll.
This Court, therefore, refrained from expressing any opinion on the
question whether it was within the province of this Court to order a
repoll under the Representation of Peoples Act. (364-D-E)
3.1. An advocate has no wider protection than a layman when he
B commits an act which amounts to contempt of court. It is most
unbeffitting for an advocate to make imputations against the judge
only because he does not get the expected result, whkh according to
him is the fair and reasonable result available to him. Judges cannot be
intimidated to seek favourable orders. Only because a lawyer appears
as a party in person, he does not get a licence thereby to commit
C contempt of the court by intimidating the Judges or scandalising the
Courts. He cannot use language, either in the pleadings or during
arguments, which is either intemperate or unparliamentary. These
safeguards are not for the protection of any Judge individually but are
essential for maintaining the dignity and decorum of the Courts and for
upholding the majesty of law. Judges and Courts are not unduly
~ D sensitive or touchy to fair and reasonable criticism of their judgments.
Fair comments, even if, out-spoken, but made without any malice or
attempting to impair the administration of justice and made in good
faith in proper language do not attract any punishment for contempt of
court; However, when from the criticism a deliberate, motivated and
calculated attempt is discernible to bring down the image of judiciary
E in estimation of the public or to impair the administration of justice or
tend to bring the administration of justice into disrepute the courts
must heister themselves to uphold their dignity and the majesty of law.
The appellant, had, undoubtedly committed contempt of the Court by
the use of the objectionable and intemperate language. No system of
·justice can tolerate such unbridled licences on the part ofa person, be
F he a laWyer, to permit himself the liberty of scandalising a court by
casting unwarranted, uncalled for abd unjustified aspersions on the
integrity, ability, impartiality or fairness of a judge in the discharge of
his judicial functions as it .amounts to an interference with the due
course of administration of justice. (366-B-F)
G 3.2. The counsel expressed his 'unqualified regret' on behalf of the
appellant. _The appellant also expressed his apology and pleaded 'lack
of understanding'. In view of unqualified apology tendered by the
appellant and reiterated in absolute terms and being satisfied that the
appellant was genuinely repentent, Coui;t accepts his apology but issues
a strong admonition and warning to him to be more careful in future.
H (366-G, 367-F)
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.] 341
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5332 of A
1993.
From the Judgment and Order dated the 26th July, 1993 of the High
Court of Punjab and Haryana at Chandigarh in Election Petition No. 16 of
1991.
P.N. Misra, S. Misra, Satish Kumar and A.C. Pradhan for the B
Appellant.
Harish N. Salve, Ravindra Bora and Ms. Meenakshi Grover for
Respondent.
The Judgment of the Court was delivered by c
DR. ANAND, J. The appellant through this appeal under Section l 16A
of the Representation of People Act, 1951 (hereinafter the Act) has
challenged the order of the Punjab and Haryana High Court dismissing his
Election Petition No. 16/91.
The elections to the Haryana Legislative Assembly were held along
D
with the elections to the Parliament in respect of the seats falling within the
State of Haryana on 20.5.1991. The appellant and respondent Nos. 1 to 16
were the candidates from 71 Narnaund ·Assembly Constituency.
Respondent No. 1, a candidate sponsored by the Janta Dal was declared
elected by polling 20011 votes. The appellant, a nominee of the Indian E
National Congress secured 19973 votes i.e. 38 less votes than the returned
candidate. Since, the real contest was between the appellant and the
returned candidate respondent No. 1, and the challenge in the Election
Petition is also limited, it is not necessary to notice the votes polled by or
the party affiliations of the other respondents. The polling in the
Constituency took place in 132 polling stations. The counting of ballot F
papers took place in the town of Hansi in PCSD High School. Dr. Avtar
Singh, IAS, SOM, Hansi was the Returning Officer, who declared
respondent No. 1 as duly elected.
The appellant filed an election petition under Section 81/83 of the Act
calling in question the election of respondent No. 1. The challenge, in the G
election petition, was based mainly on the ground of commission of
irregularities and illegalities during the counting. The .appellant alleged that
the Returning Officer was biased in favour of respondent No. 1 and that he
had appointed various members of the counting staff of the choice of
respondent No. l and those members improperly rejected the valid votes of
the appellant and illegally inflated the number of votes polled by H
342 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R.
A respondent No. by accepting and counting invalid votes in favour of
respondent No. I. The facts and particulars in this behalf are mainly
contained in paras 11 to 24 of the election petition.
Referring to the manner of counting, the appellant complained that the
manner of the fixing of tables for counting and the fixing of a barbed wire
B to keep the counting agents of the candidates outside that barbed wire,
resulted in the non-participation of the candidates and their counting agents
in the counting process and was contrary to the guidelines contained in the
Handbook for Returning Officers issued by the Election Commission of
India. It was alleged that 20 tables had been placed for being used for the
purposes of counting in a small hall and that had led to a lot of congestion
c and inspite of the protests of the appellant and other candidates, the
counting continued in the same fashion and therefore it was not possible for
the counting agents appointed by the candidates, including his counting
agents, to properly watch the process of counting of votes and it also
diabled them to raise objections or even note down the particulars of the
votes improperly received in .favour of the returned candidate as also the
D votes improperly rejected in so far as the appellant is concerned. That even
at the dias of the Returning Officer, the candidates and their election agents
could not see the proceeding being carried out by the officer sitting on the
dias. With reference to Form XVI in respect of certain booths, it was
alleged that there had been erasures, cuttings, over-writings and tampering
with the figures of various votes polled by different candidates and also in
E respect of the rejected ballot papers and those cuttings had not been
certified by any officer or the Returning Officer. It was asserted that the
Returning Officer did not announce the number of votes polled by each of
the candidates as incorporated in Form XX. It was further alleged that after
declaring the result and preparing Form XX (Ex. P. 405), the Returning
Officer had ordered another Form XX to be prepared in violation of the
F Rules and Orders with a view to help the returned candidate. That the new
Form XX was prepared on l.7.1991 and during the entire period of 13
days, between the de~laration of the result and the preparation of n~w Form
XX, all the Forms XVI had remained in the custody of the Returning
Officer contrary to the instructions and orders. issued under the Att. The
G appellant after the counting was over but before the result was declared,
applied to the Returning Officer for a recount but his application was
wrongly rejected. According to the appellant the result prepared by the
Returning Officer was inaccurate and the irregularities committed during
the counting of votes and preparing of Forms XVI and XX had materially
~ffected the result of the election in so far as the returned candidate is
H · coni;:erned. The appellant prayed for the election of respondent No. 1 to be
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.] 343
declared void and set aside. He prayed for a recount and for a declaration A
that he be declared as duly elected.
The respondent No. 1 contested the election petition and denied all the
allegations made by the appellant. He also raised some preliminary
objections to the maintainability of the election petition. It was stated that
some of the allegations contained in the election petition were scandalous B
while others were vague and the same did not disclose any cause of action.
It was also asserted that the allegations regarding the commission of
illegalities or irregularities during counting were an after thought since
during the counting no such complaint had been made either to the
Returning Officer or to the observer appointed by the Ejection Commission.
The following preliminary issues were framed by the Court: C
1) Whether the allegations in paragraphs 6 and 9 of the
election petition are scandalous, irrelevant and liable to be
struck off?
2) Whether the averments made in paragraphs 7 to 9, 26 to D
40 are irrelevant and do not disclose any cause of action? If
so, to what effect?
3) Whether the allegations made in paragraphs 11 (a) to 24
lack in material facts and do not disclose a cause of action?
If so, to what effect? E
Issue No. 1 was decided against respondent No. 1 and it was found that
the allegations contained in paras 6 and 9 were by no means scandalous.
Issues 2 and 3 were dealt with together and by reference to a number of
judgments delivered by this Court it was held that the election petition did
not suffer from vagueness or want of material facts and particulars in F
support of the pleas raised in the specified paras of the election petition.
Both the issues were also decided in favour of the appellant and against the
returned candidate. The order of the learned single Judge deciding the
preliminary issues against the respondent No. 1 on 6.12.91 was challenged
by the returned candidate respondent No. 1 in this Court through SLP
(Civil) NO. 1239/92. Learned counsel for the respondent, however, sought G
to withdraw the special leave petition stating that the appellant wished to
urge the questions covered by the impugned judgment in an appeal from the
final judgment in the eleation case, if necessary. The special leave petition
was accordingly dismissed as withdrawn on 6.2.92.
On 1.12.1991, the following issues were framed on merits: H
344 SUPREME COURT REPORTS (1994) SUPP. S S.C.R.
A "I) Whether the result of the election in respect of
respondent No. I has been materially affected on the
grounds described in paragraphs 11 to 39 of the election
peti~ion, and . as a result thereof the election of the
respondent No. I deserve to be set aside/declared void and
the petition, deserves to be declared as duly elected? OPP.
B
2) What is the effect of not raising objection r¢garding
irregularities in counting before the observer appointed by
the Election Commission and the District Election Officer?
OPP."
C Both parties led their evidence. The learned Trial Judge after an
appraisal of the evidence observed:
•
"The evidence of the petitioner led in the court that the
counting agents could not participate in the counting is thus
not credible. I also see force in the arguments of the learned
D counsel for the respondent that the silence of 1he petitioner
and his counting agents at the _time when other officers
visited should be sufficient to silence their protest made
now." ................................................ .
"I, however, find_ that the record prepared with respect to
E the result has been over-written in some of the Fotms XVI
and also in Form XX and the same raise some suspicion
about the correctness of that record. Though, the fixing of
the seat of the supervisor on the other end of the table will
not be deemed to be a breach of the Rules but in the present
F case, it has acquired significance. According to the lay out
given in Annexure XXV, the counting supervisor had to sit
on one side of the table close to the side on which .the
counting agents are provided the sitting place. It was ·
obviously for the purpose that the counting agents should be
able to observe not only the actual counting process, but
G also the preparation of Form XVI, or any other writing
work done by the supervisor. The counting supervisors have
been careless and the result of Assembly Constituency had
been prepared on the back of Form XVI, which was meant
for the Parliament. The same are EXs. P. 306, 311, 347,
H 349, 361, 378, 381, 383 and 388.
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.] 345
Since, the counting agents could not have seen the A
preparation of Form XVI, this mistake has occurred. This,
by itself may not be a ground for vitiating the counting
process, but it does give support to one limb of the
argument of the learned counsel that the participation of the
counting agents was not that effective as the Rules expect."
B
After considering the evidence of Dewan K.S. Puri, hand-writing
expert and his report Ex. P.409 and some of the Forms XVI for certain
booths, the Trial Court opined that the over-writings, cuttings and erasures
had made those documents (Forms XVI and XX) suspicious and the
correctness of the record doubtful. After a detailed discussion in respect of
various booths in relation to Forms XVI, the learned Judge by his order C
dated January 21, 1993 opined :
"To remove the suspicion created by over written figures in
Forms XVI and XX, the preparation of the result on simple
paper in respect of one booth and an unsigned Form XVI
and to do complete justice between the parties, a partial D
inspection of the ballot papers becomes necessary. It is a
case to which the observations made in the above quoted
authorities are attracted.
and directed :
E
I hereby order the opening of the ballot boxes relating to
Booth Nos. 28, 31, 38, 41, 55, 65A, 75, 85, 86 and 98. The
Registrar (Judicial) will appoint a senior officer and two
assistants from the Election Branch to open these boxes and
check the result with the relevant Form XVI relating to
these booths and prepare a report. This inspection shall be F
carried out in the presence of the advocates of both
petitioner and respondent 1. The petitioner and respondent 1
shall also have the right to be present."
The order dated 21.1.1993 directing recount of votes relating to booth
Nos. 28, 31, 38, 41, 55, 65A, 75, 85, 86 and 98 was challenged by G
respondent No. 1 in this Court through special leave petition No. 3230/93.
It was inter alia pleaded in the special leave petition that no ground had
been made out for ordering recount or inspection of the ballot papers
because the petition was deficient in material facts and particulars and that
the impugned order directing a recount/inspection violated the secrecy of
the ballot papers. This Court on 26.3.1993, in presence of learned counsel H
346 . SUPREME COURT REPORTS [1994) SUPP. S S.C.R.
A for the parties, dismissed the special leave petition. The inspection/recount
was, thereafter, carried out as directed and a report was submitted to the
High Court on 31.3.1993, which inter a/ia recorded :
"BOOTH No. 28
B 1. Vote No. 0025695 was actually marked in favour of Shri
Azad Singh, but was found in the bundle of Shri Jaswant
Singh.
2. Vote bearing No. 0025862 was actually marked in favour
of Shri Karam Singh, but was found in the bundle of Shri
c Jaswant Singh.
3. Vote No; 0025536 had been polled in favour of Shri
Virinder Singh, but was found in the bundle of Shri Karam
Singh.
4. Vote No. 0025730 had been polled in favour of $hri
D
.Jaswant Singh, but was found in the bundle of Shri Karam
''s·
. mgh.
5. Vote No. 0025882 was found in the bundle of rejected
votes, however, it was claimed by Shri Virender Singh,·
E respondent that the same had actually been polled in his
favour. He further stated that the marking has been on his
symbol, however, it was smudged.
All these votes had been taken out and sealed separately as
stated above, for the kind perusal of Hon'ble Court.
F BOOTH No.JI
(The packet containing the votes of this booth was already
open from the above side. However, it bore seals on its
sides.)
G
1. Vote No. 0027580 was found in the bundle of rejected
votes but was claimed by Shri Jaswant Singh, that the same
·had been polled in his favour.
The said vote was also taken out and sealed separately ·as
H stated above. ·
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.) 347
BOOTH NO. 38 A
(Oi:te bundle containing the votes of Shri Virender Singh,
respondent was found containing 51 votes instead of 50
votes).
1. Vote No. 0034036 which has been marked at two places B
and is claimed to be an invalid vote by the petitioner was
found in the bundle of Shri Virender Singh, respondent.
2. Vote No. 0033735 which is also an invalid vote being
marked at two places was found in the bundle of Shri
Virender Singh, ~espondent. C
3. Vote No. 0033778 which had actually been polled in
favour of Shri Virender Singh·, respondent was found in the
bundle of Shri Jaswant Singh, petitioner.
4. Vote No. 0033417 which is an invalid vote having been D
marked at two places was found in the bundle of Shri
Jaswant Singh, petitioner.
5,. Vote No. 0033828 which has actually been polled in
favour of Shri Chander Bhan was found in the bundle of
Shri Jaswant Singh, petitioner.
E
6. Vote No. 0033774 which had actually been polled in
favour of Shri Virender Singh, respondent was found in the
bundle of Shri Karam Singh.
All these votes had been taken out and sealed separately for
the kind perusal of Hon'ble Court. F
BOOTH NO. 41
No discrepancy was found while counting the votes of this
booth.
G
BOOTH NO. 55
(The seals of the packet containing the votes of this booth
were intact but were not decipherable).
In this booth also no discrepancy was found on checking. H
348 SUPREME COURT REPORTS (1994) SUPP. 5 s.c:R.
A BOOTH NO. 65-A
(One seal on the packet containing votes of this booth was
broken and the other seal·was not decipherable.
Two bundles pertaining to the votes of Shri Jaswant Singh,
Petitioner contained 51 votes each).
B
l. Vote No. 0058587 which was actually polled in favour of
Shri Virender Singh, respondent was found in the bundle of
Shri Jaswant Singh, Petitioner.
2. Vote No. 0058430 which was actually polled in favour of
c Shri Chander Bhan was found in the bundle of Shri Jaswant
Singh, Petitioner.
3. Vote No. 0058546 which has been rejected by the
Returning Officer was claimed by Shri Jaswant Singh,
petitioner that the same had been polled in his favour.
D
All these votes were taken out and sealed separately for the
kind perusal of the Hon'ble Court.
BOOTH NO. 75
E l. Vote No. 0066791 which was found in the bundle ofShri
Jaswant Singh, petitioner was claimed to be an invalid vote
by Shri Virender Singh, respondent.
2. Vote No. 0067048 which is marked at two places ~d as
such an invalid vote, was found in the bundle of Shri
F Jaswant Singh, petitioner.
3. Vote No. 0066756 which was found in the bundle of
votes rejected by the Returning Officer was claimed by Shri
Virender Singh, respondent that the same had been polled
in his favour.
G BOOTH NO. 85
(The seals of this bundle were already open.)
l. Vote No. 0076599 which was marked in favour .Sh.
Karam Singh, was found in the bundle of Sh. Jaswant
H ~ingh, petitioner.
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.] 349
2. Vote No. 0076615 which was found in the bundle of A
rejected votes had been claimed by Sh. Jaswant Singh,
petitioner that the same had been polled in his favour.
3. Vote No. 0076726 which was found in the bundle of Sh.
Jaswant Singh, petitioner is claimed to b1; an invalid vote by
the respondent, having been marked at two places. B
However, Sh. Jaswant Singh, petitioner claims to be a valid
vote and that the same had been rightly polled in his favour.
BOOTH NO. 86
Seals of this booth were already open.
c
As per Form No. XVI ballot papers bearing serial No.
672869 to 673328 had been issued by the Presiding Officer
for this booth i.e. Booth No. 86 of village Ugalan whereas
the ballot papers bearing serial Nos. 672869 to 673200 are
shown to have been actually used. However, the votes D
which had actually been polled at this both bore serial Nos.
0077061 to 0077392 which found mention in Form No.
XVI pertaining to Lok Sabha Seat.
On thorough checking it was found that in fact the Form
Nos. XVI in respect of Lok Sabha as well as Vidhan Sabha
seats pertaining to this booth were intermingled/exchanged E
due to some clerical mistake. However, the actual votes
counted by the Returning Officer tallied with the names,
symbols and the numbers of the votes polled by each
candidate in his/her favour as per details given in Form No.
XVI in respect of Vidhan Sabha Seat pertaining to this F
Booth. This position was also admitted to be correct by the
petitioner as well as the respondent and also by their
counsels at the time of counting.
BOOTH NO. 98
1. Vote No. 0087654 which had actually been polled in G
favour of Sh. Chander Bhan was found in the bundle of Sh.
Jaswant Singh, petitioner.
2. Vote No. 0087871 which was marked at two places and
as such an invalid vote was found in the bundle of Sh.
Jaswant Singh, petitioner. H
350 SUPREME COURT REPORTS [1994] SUPP. S S.C.R.
A Both these votes were also taken out and.sealed.separately
for the kind perusal·ofthe Hon'ble Court.
Accordingly Fonn· No. XVI in respect of each of the booth
Nos. 28; 31', 41, 55, 65'-A, 78, 85, 86 and 98 having been
prepared separately-were.placed in file No; 4 containing I
B 'to IO pages which is enclosed with this Report for the kind
perusal'. of the Hon 'hie Court. The votes d:sputed/objected
by the parties have not been included in the Fonn No. XVI
in respect of all the Booths. However, the same been· sealed
separately. ·
c As a resume of the above I may submit that leaving aside
the.votes objected/disputed" by either the Petitioner, or. the
Respondent; the Petitioner has further lost 9 votes 'whereas
the-Respondent.has gained 3 more votes." ·
The partial recount; it is thus seen, generally speaking1 falsified- the
D allegations made by the election petitioner in the petition.
After the report of the designated officer was submitted to the Trial
Court; the election petition was.listed for hearing. It appears that arguments
were heard in part on 12th May, 1993, when learned counsel for the
election· petitioner (appellant herein) sought time to prepare the case and·to
E examine "if he can.advance arguments beyond the.pleadings and, the prayer
in the petition." The case was fixed for 13th May 1993. However, on 13th
May 1993 an application came to be filed by the election petitioner himself
before the learned Judge quotiilg some "observations!' of the learned•Judge
made during the hearing the previous. day and objecting to the· manner in
which two sealed• envelopes containing ballot papers, on· which objections
F had, been raised by both sides during the recount were handled by the Court
and sought stay of. further arguments to enable the. election petitioner to
approach-the Supreme-court. The learned Trial Judge made.the following
order and·adjourned the case:
"Counsel for the petitioner has. not appeared• and the
G petitioner himself has made a request that he wants to move
the Hon'ble Supreme Court for transfer of the Election
·Petition front this Court• In view of this statement, the
petition is being adjourned. The petitioner wants to place an
application. for transfer on record. He may file it in the
H Registry, if so advised.
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.) 351
• During the course of arguments yesterday, two sealed A
envelopes relating to polling Booth Nos. 28 and 31 had
been opened in the presence of the parties and their counsel
at the time when the report of the Commissioner who
carried out test checking was being considered. These open
envelopes had remained in my custody in my Almirah
under lock and key. Since, the case is now being adjourned, B
these open envelopes be resealed and the same be handed
over to the Additional Registrar (Judi.) alongwith other
sealed envelopes."
It transpires from the record, that thereafter a Transfer Petition No.
740/93 was filed in this Court and the same was dismissed on 30th August C
199l.
A scrutiny of the record reveals that neither the petitioner nor his
counsel thereafter appeared in the High Court when the case was taken up
for remaining arguments. The learned Judge while dismissing the election
petition observed: D
"As a result of the samp~_c•hecking it has been found that
though figures give'fin form XVI appeared to be doubtful
by over. writing but infact they carried almost the correct
record After sample checking of ten booths, it has been
found that nine votes had been wrongly counted in favour of E
the petitioner. The petitioner cannot claim that wrong
record had been prepared to his disadvantage affecting his
election. The petitioner has thus no cause to challenge the
election of the respondent." (Emphasis ours)
In this appeal, learned counsel for the appellant has again referred to F
the suspicious nature of the election record, particularly various Form XVI
and Fonn XX and reiterated the submissions made in the High Court, on
the acceptance of which recount had been ordered and urged that the High
Court should have ordered a partial repoll and not merely a recount.
Learned counsel, however, did not question the correctness of the report of
the designated officer based on recount/inspection. G
Mr. Harish Salve, learned senior counsel appearing for the respondent
submitted that the pleadings of the election petitioner were hopelessly
vague and since a judicial recount is not a matter. of right and convincing
\ evidence is the touch stone, the learned Trial Judge could not have ordered
a recount in this case. Referring to the pleas raised in the election petition it H
352 SUPREME COURT REPORTS [1994) SUPP. 5 S.C.R.
A was submitted that the allegations contained in para 11 to para 24 of the
election petition detailing the alleged irregularities committed during. the
process of counting were hopelessly vague and devoid of factual
foundations and diq not justify an order of recount and that the petition
should have been dismissed as not disclosing any cause of action. It is
stated that the allegations were hopelessly vague and no supporting material
B had. been placed on the record. It was also pointed out that no objection had
been raised during the counting by the appellant or his agents to RW8
Gulshan Rai, RW9 J.K. Grover and RWIO A.N. Mathur Home Secretary,
who had been appointed as observers by the Election Commission and had
visited the counting hall and therefore the allegations made in the election
petition were an after thought aimed at a fishing enquiry through recount.
c Learned counsel . argued that even though as a result of the recount, the
returned candidate and not the appellant was the gainer, the direction for
recount had been erroneously given and was not at all justified and that this
Court, to keep the record straight, may hold that in the nature of pleadings
which were vague and indefinite and in the absence of any supporting
material, the order of recount was not justified.
D
Mr. Salve then submitted that s'ince learned counsel for the election
petitioner had not disputed that the total number of votes polled by each of
the candidate as reflected in original Form XX, were the same as shown in
the revised Form XX, and that the aggregate figures in both the forms,
candidate-wise, of the valid votes polled by them were the same, no
E grievance could be made about the erasures etc. in Form XX or in some of
Form XVI, on the basis of which Form XX had been prepared. Learned
counsel argued that the appellant was trying to make a capital out of the
erasures and over-writings etc. on some of the Forms XVI, which were
bonafide corrections, and the hollowness of the grievance of the appellant
F stood totally P.Xposed by the report of the recount/inspection~ Learned
counsel vehemently corr.plained about the order directing recount and
described it as totally unjustified and violative of the secrecy of the baUot
papers.
· The submission of Mr. Salve that on account of the lack of material
G facts and particulars in paras 11 to 24 of the election petition no case had
been made out for ordering a recount and therefore the learned Trial Judge
could not have ordered recount does appear to us to be justified, keeping in
view the nature of the pleadings, but this need not detain us because a
challenge to the order of recount was made by respondent No. l, the
returned candidate, through SLP No. 3230/93 which was dismissed by this
H Court.· It is, therefore, not permissible again for the returned candidate to 'J
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.] 353
raise an argument challenging the correctness of the order of recount, as ~e A
earlier order of dismissal of the SLP, in the presence of learned counsel for
the parties, would operate as constructive res judicata. In a somewhat
similar situation in N.C. Horo v. Leander Tiru and Ors., (1989) 4 SCC 364,
an argument similar to the one raised by Mr. Salve was repelled by this
Court. The Bench observed :
B
"Counsel next relied upon the decisiort of this Court in
P.K.K Shamsudeen v. KAM Mappi/lai Mohindeen and
argued that there was no factual foundation established by ·
the respondent have an inspection of ballot papers. In our
opinion, the said decision had apparently no relevance to
the present case. Herein, the High Court by the order dated C
November 17, 1987 has reached the conclusion and
recorded a finding as to the prima facie case calling for
inspection ofballot papers. That conclusion as to the prima
· facie case was based on consideration of relevant evidence
produced by the parties. That order of the High Court has
been upheld by this Court by dismissing the appellant's D
special leave petition. The appellant was bound by that
order and he cannot again contend that there was no
factual foundation established by the respondent for
inspection. The earlier order of the High Court which has
been affirmed by this Court cannot be reopened in this
appeal. " · (Emphasis supplied) E
The view expressed above in Horo 's case (supra) is in consonance with
the opinion of the majority in Bhag Mal v. Ch. Parbhu Ram and Ors.,
(1985) I SCC 61, wherein it was held:
"We may also observe that the appellant filed a special F
leave petition against the High Court's order dated March
IS, 1983, directing recount of the rejected ballot papers of
the appellant and respondent I and that it was dismissed
after the issue of notice and hearing both the parties. We
agree with Mr. Sibal that the order directing recount of the
rejected ballot papers insofar as it is not in excess of the G
jurisdiction of the Tribunal has become final and that it is
not open to the appellant to reagitate that question in this
appeal which is no doubt under Section '116 of the Act, as
the principle of constructive res judicata applies. We do not
agree with Mr. Shanti Bhushan ~at it can be reagitated in
this appeal." H
354 SUPREME COURT·REPORTS [1994) SUPP. S S.C.R.
A We are in respectful agreement with the above view of law and hold
that the returned candidate is bound by the earlier order of this court
dismissing his special leave petition against the order of recount and he
cannot now be permitted to reagitate the issue again.
The recount ordered by the learned single Judge has, however,
B confirmed the correctness of the result of the election as well as generally
the correctness of _the votes polled by the appellant and the returned
candidate, as reflected in various Forms XVI and Form XX. As a matter of
fact, as a result of the recount the appellant has lost 9 votes whereas the
returned candidate has gained 3 votes. The grievance of the appellant that
on ac~ount of the so-called illegalities and irregularities committed during
c the counting and for non-compliance with the provisions of the Act, Rules
and the orders framed thereunder or in the guidelines contained in the Hand
Book during the counting, the result of the election in so far as the returned
candidate is concerned has been materially effected, has been relied during
the recount and none of the allegations has been substantiated or established
as rightly held by the learned Trial Judge.
D
Faced with the result of the recount, the report of tb.e Designated
Officer and the findings of the leamed Trial Judge, learned counsel for the
appellant then argued that the manner ip. which the Returning Officer had
dealt with the election material, after the declaration of the result, coupled
E
at
with the fact that the time of recount by the designated officer, seals of
some of the packets containing ballot papers, as detailed in the report itself, .
had been found either broken or missing, the entire election process .had
been vitiated. It was submitted that the RetUming Officer h~d retained the·
ballot papers· in his illegal and unlawful custody for a period of about two
days "after the declaration of the result" and had also kept back the secret
special seal of the Election Commission, besides all XVI forms, contrary to
F
the rules and the instructions and the state in which some of the packets of
the ballot papers were found at the time of recount in the High Court was
indicative of the manner in which the election record had been tampered
with after the declaration of the result. It was asserted that the trunks
containing the election material had not been deposited for safe custody in
G the Treasury forthwith as required by the Rules, orders and instruction on
·the subject and instead had been deposited in the Treasury only on 19th
June 1991. According to the appellant, the Returning Officer had actedJn
violation of Rules 57 and 93 and Instruction No. 23 (7) and 23 (9) of the
Hand Book containing the instructions to the Returning Officers. Learned
counsel urged that in the case of all such booths in respect of which ballot,
H papers had been found to be in packets with broken seals. as well as the'
. ~
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.] 355
packets on which the seals were found to be missing, a repo/I and not A
merely a recount should have been ordered by the High Court and since,
repoll had not been ordered, this Court may in order to do complete justice
between the parties and tc maintain purity of the elections, order a partial
repoll in respect of all those booths. Learned counsel submitted that repoll
can be ordered by the court while deciding an election petition and in
support of this Submission relied upon the judgment in A. C. Jose v. Sivan B
Pillai and Ors., [1984] 2 SCC 656. According to the learned counsel, this
Court can in exercise of its jurisdiction under Article 142 of the
Constitution of India, with a view to do complete justice between the
parties, direct partial repoll in respect to the booths whereof the seals on the
packets containing the ballot papers had either been found broken or
missing during the recount by the designated officer. C
In response. Mr. Salve submitted that since the outer seals of all the
trunks containing the sealed packets of the ballot papers were admittedly
found to be in tact, the broken or missing seals of some of the packets
containing ballot papers was of no consequence, because the seals could
have got broken or opened while packing the packets in the trunks or D
during the handling or packing of the packets. It was argued that since the
designated officer had not found any discrepancy in the ballot papers
contained in. all those packets after tallying the same with the entries in
Form XVI and Form XX, the grievance made by the appellant had no basis
or relevance and the appellant was not trying to build up a new case at the
stage of the appeal in the Supreme Court, which was not pleaded either E
initially in the election petition or even through an amendment after the so-
called irregularities came to the notice of the appellant during the process of
recount and therefore he cannot now be heard on that account. It was
further submitted that the·faiiure to comply strictly with the provisions of
the Rules, orders or instructions as to the forwarding of the election
documents, after close of the poll and declaration of the result could not in F
any event avoid the election of the returned candidate in the absence of any
allegation and proof that post-declaration irregularities were committed, to
cover up pre-declaration· illegalities, which could have materially effected
the result of the election petition. It was asserted that Rule 63 applies to
recount before the declaration. of result and the saisi rule or even the G
principle of that rule has no application whatsoever to a recount ordered by
the Court during the Trial of an election petition. Learned counsel went on
to state that the partial repoll, as requested for by the learned counsel for the
election petitioner, cannot be ordered by this court, as the direction to hold
polls, including partial repoll, falls within the province of the Election
Commission and is not a relief which can be granted by the courts in an H
356 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R.
A election petition. It was argued that repoll and recount are two different
situations and that the alleged wrongful acceptance or rejection of votes or
irregularities during counting of votes which alone was the main stake of
the appellants claim could not justify a prayer for repoll.
On a critical a~alysis of the material on the record, we, find that the
B allegation regarding the alleged tampering with the election material after
the declaration of the result, as raised during the arguments before us, has
no factual foundations. As a matter of fact there is evidence on the record to
show that sealing of the packets and trunks was undertaken by the Naib
Tehsildar and the entire record had been sealed before the same was
deposited in the Treasury. Dr. Avtar Singh, Returning Officer had directed
c PW13 to deposit the record with the Treasury and since there is no evidence
available on the record to show that the trunks were not sent to the Treasury
in a sealed condition, it would be futile to contend that the same had been
tampered with after the declaration of the results and before their deposit in
the Treasury.
D PW4 Dr. Avtar Singh, the Returning Officer stated that after Form XX
had been prepared, all the Forms XVI were sealed. They were sealed on
17th June, 1991 in his presence when some of the candidates and their
election agents were also present. He asserted that "all the material that was
to be sealed had been sealed on 17th June, 1991. The sealed material was
put in steel cases." The witness went on to emphasise that the entire record
E had been placed in steel boxes and the boxes were left in the custody of the
Assistant Returning Officer who had deposited the same in the Treasury:
The witness added that "I had seen this record in the Treasury Office on
18th June 1991. At that time the record was in the strong room of the
Treasury. On 18th June 1991 I had gone to the Treasury to see if the record
F had beer deposited with the T~easury properly or not."
PW5 Avinash Chandra Ashri, who was posted as Assistant Treasury
Officer, Hansi, during the relevant period proved the entries in the Register
Ex. P408 with respect to the pad locks and the election material. He stated
that there were two entries in the register and that they both relate to 19th
G June 1991. The witness then went on to add:
"These entries relate to the deposit of the election material
and as per these entries, 27 boxes were got deposited which
related to Hansi constituency and 11 boxes with respect to
Vidhan Sabha Namaun~ constituency. These entries are Ex.
H P. 408/A and Ex.P408/B. When some material is taken out
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.] 3S7
of strong room, an entry is recorded to that effect against A
the said deposit entry. However, with respect to these two
entries, there is no further entry of taking out of the material
from the strong room. The entries Ex. P.408/A lilld
Ex.P.408/B bear my signatures communication Ex.P.408/C
is from the Returning Officer vide which the election
material relating to Narnaund constituency was sent. This B
communication bears my ~ · iatures in token of receipt of
election material on 19th June, 199 l."
It is this statement, which has been strongly relied upon by the learned
counsel for the appellant to urge that the record had not been sent for safe
custody on 17th June and that it had remained with the returning officer till C
19th June, and during that period tampering had been done. The inference
which the appellant wishes to draw, as we shall presently see, is
unreasonable and has no basis.
During the cross-examination, PW5 Ashri was challenged on the
question of making ~ntries in the Register Ex.P .408 and the witness stated: · D
"The entries are made by the Assistant Treasurer and the
same are signed by the Assistant Treasury Officer. All these
entries are not in my hand. The entry mark "B" on the same
page is not In my hand."
E
The Assistant Treasurer, however, was not examined to depose as to on
what day he actually received the trunks and made the entries. We have
ourselves perused the Register Ex.P.408, it contains an entry at "Mark B"
opposite which Narnaund constituency iSi written and it relates to receipt of
election record on 17th June 1991. Whereas Mr. Mishra submitted that the
said entry does not reflect the receipt of the election material relating to F
Narnaund constituency in the sealed trunks on 17th June 1991, Mr. Salve
contended that the said entry could only relate to the receipt of the election
material and urged that this position was fortified by the fact that the
Returning Officer Dr. Avtar Singh PW4 had found the record in the
Treasury on 18th June 1991. It is not anybody's case that election material G
relating to Narnaund Constituency had been deposited in the Treasury on
17th June and 19th June i.e. on two different dates. None of the parties, it
appears, made any effort to have the ambiguity regarding the entry marked
"B" clarified during the examination of the witnesses. The entry at mark
"B" therefore apparently relates to the receipt of election material of
Narnaund Constituency in the Treasury on 17th June, 199 l. In this H
358 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R.
A connection a reference to the statement of PW13 Assistant Returning
Officer would also be of advantage. He desposed:
"The record relating to election after counting was sent to
the Treasury. A list is sent along with the record indicating
the detail of the record and there is also a forwardiiig letter
B addressed to the treasury officer for depositing the record.
The record is deposited with the treasury by Election
Kanungo. I had left for Hissar after the completion of the
result and I had taken with me the result with respect to
Namaund segment of parliamentary constituency Hissar.
There was an election Kanungo appointed by the Deputy
c Commissioner to perform the duties of Kanungo and he was
present during the counting process. So far as I recollect it
was the duty ofNaib Tehsildar to take custody of the record
and the sealing was being done under the supervision of
Naib Tehsildar. The supervision of the work done by the
D Naib Tehsildar was with the Returning Officer. The seal of
the Election Commissioner for the Assembly constituency
was with the Returning Officer. I had no occasion to use
that seal. The entire record relating to the election were
sealed before depositing with the Treasury Officer."
E During the cross-examination, he admitted that Dr. Avtar Singh had
directed him to deposit the record with the Treasury and that he had
deputed Election Kanungo to deposit the record with the Treasury, who had
so deposited it forthwith. Neither the Naib Tehsildar nor the Kanungo were
examined by either of the parties to ascertain as to when the sealing was
done and when they actually delivered the sealed trunks at the treasury. The
F matter was allowed to rest at that only. The evidence of the witnesses
referred to above reveals that the appellant has failed to establish any
breach of rule, order or guideline etc. in the matter of sealing of the
election material and delivering it for safe custody in the Treasury. On the
basis of the material on the record, it appears to us that the capital which the
G appellant now seeks to make out of the missing or broken seals on some of
the ballot papers during the recount is without any foundation. The
evidence and the other material on the record, including the result of
recount, falsifies the allegation that the election material had not been
properly sealed or that the Returning Officer had indulged in any tampering
with the record after the declaration of the result, to further the prospects of
H the election of the returned candidate.
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.) 359
Moreover, it is nobody's case that the figures contained in Fonns XVI, A
taken out of the trunks, were different from the figures contained in the
copies of the relevant Fonn XVI, which the appellant had obtained at the
time of counting itself. Votes polled candidatewise as well as the total
number of votes polled tallied with the Fonns. Recount also established that
the entries in the Fonns, both, XVI and XX, were correct. The grievance of
the appellant, therefore, is futile and the argument is one of despair. The B
fact situation which stands established after the recount shows that the
apprehensions expressed by the appellant have been found to be fanciful
. and without any basis and his grievance untenable.
That apart, we find that even if the arguments raised at the Bar were to
be accepted that there have been some violation of the instructions C
contained in the Hand Book and the rules and orders, in the matter of
•• sealing of the election material, after the declaration Of the election result,
the same cannot avoid the result of the election. The alleged tamper~g with
the seals of some of the packets containing the ballot papers, after the
declaration of the result, is not a ground for avoiding an election through an D
election petition. The election of a returned candidate can only be avoided
on any of the grounds contained in Section l 00 of the Act. That Section
reads:
"Sec. l 00 Grounds for declaring election to be void - ( l)
Subject to the provisions of sub-section (2) if (the High E
Court) is of opinion -
a) that on the date of his election a returned candidate was
1
not qualified, or· was disqualified, to be chosen to fill the
seat under the Constitution or this Act (or the Government
of Union Territories Act, 1963 (20of1963); or F
b) that any corrupt practice has been committed by a
returned candidate or his election agent or by any other
person with the consent of returned candidate or his election
agent; or
G
c) that any nomination has been improperly rejected; or
d) that ~he result of the election; in so far as it concerns a
returned candidate, has been materially affected -
(i) by the improper acceptance or any nomination, or H
't
360 SUPREME COURT REPORTS [1994) SUPP. S S.C.R.
A (ii) by any corrupt practice committed in the interest of .the
returned candidate (by an agent other than his election
agent), or
(iiiJ by the improper reception, refusal or rejection of any
vote or the reception of any vote which is void, or
B
(iv) by any non-compliance with the provisions of the
Constitution or of the Act or of any rules or orders made
under this Act, (the High Court) shall declare the election of
the returned. candidate to be void).
c (2) if in the opinion of (the High Court) a returned
candidate has been guilty by an agent, other than his
election agent, of any corrupt practice but (the High Court)
is satisfied -
(a) that no such .corrupt practice was committed at the
D election by the candidate or his election agent, and every
such corrupt practice was committed contrary to the orders,
and (without the consent), of the candidate or his election
agent;
xxx xxx xxx
E (c) that the candidate and his election agent took all
reasonable means for preventing the commission of corrupt
practices at the election; and
(d) that in all other respects the election was free fi:om ·any
corrupt practice on the part of the candidate or. any of his
F
agents, then (the High Court) may decide that the election
of the returned candidate is not void."
From the plain language of the Section, it would be seen that post
declaration non-compliance w.ith the rules or orders or instructions for the
G proper custody of the election material by the election staff is not one of the
grounds on which the election of a returned candidate can be set aside. A
post electoral irregularities may in a given case be used in aid. of the
allegations relating to pre-declaration irregularities or illegalities but by
themselves they do not afford any ground to avoid an election. In
Halsbury's Laws of England Vol.IS (4th Edn.) at paras 651, 652 and 658,
H while dealing with the sealing of the election material after the declaration
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.) 361
of the election result and forwarding the same, as required by the Rules, and A
the effect of irregularities committed while forwarding the material, it has
been stated:
"651. Sealing up of papers. On the completion of the
. counting at a contested election or at a poll consequent on a
parish or community meeting, the returning officer must B
seal up in separate packets the counted and rejected ballot
papers. The sealed packets of tendered ballot papers, or of
counterfoils and certificates as to employment on duty on
the day of the poll, or of marked copies of the register of
electors and lists of proxies, must not be opened by the
returning officer. C
652. Forwarding of documents. The returning officer must
then forward to the appropriate proper officer the packets of
ballot papers in his possession, the ballot paper accounts, D
and the statements of rejected ballot papers and of the result
of the verification of the ballot paper accounts, the tendered
votes lists, the lists of blind voters assisted by companions,
the lists of votes marked by the presiding officer and the
statements relating to them, and the declarations made by
the companions of blind voters, the.packets of counterfoils E
and certificates as to employment on duty on the day of the
poll, and the packets containing marked copies of registers
and of lists of proxies, endorsing on each packet a
description of its contents, the date of the election or poll to
which they relate, and the name of the constituency,
electora.l area, parish or community, as the case may be, for F
which the election or poll was held..... ..
658. I"egu/arities................................................................. .
failure to comply strictly with the provisions as to
forwarding documents after the close of the poll, is not
sufficient to avoid the election. " G
(Emphasis supplied)
The above statement of law is fully applicable to the situation
appearing in the present case. In Jagannath Rao v. Raj Kishore and Others,
[ 1972) 4 sec 795, a three Judge Bench of this Court was considering an H
362 SUPREME COURT REPORTS [1994) SUPP. S S.C.R.
A allegation that the ballot papers had been tampered with, after the
declaration of results, and its consequences, if any. The relevant and
necessary facts in Jagannath Rao 's case (supra) were:
'
The returned candidate had secured 69 votes more than his nearest
rival, the election petitioner. After the counting was over, the election
B petitioner had asked for a recount which was not granted by the Returning
Officer. The election petitioner thereafter applied to the Election
Commission for inspection of the ballot papers. His request was allowed
and the inspection asked for was granted and the ballot papers were
inspected. Subsequent thereto, an election petition was filed in which it was
contended that some invalid votes as well as some votes cast in his favour
c and some votes cast in favour of other candidates had been wrongly
counted in favour of the returned candidate. Those allegations were denied
by the returned candidate who had also filed a recrimination. petition.
During the pendency of the election petition both the returned candidate
and the election petitioner applied for· re-inspection of the ballot papers.
During the inspection of the ballot papers under orders of the Trial Judge,
D the counsel for the returned candidate noticed certain facts from which he
concluded that the ballot papers might have been tampered with. The
returned candidate filed an application before the court alleging that there
were reasons .to suspect that the ballot papers had been tampered with
during the process of the inspection of the same in the High Court. In fact,
it was alleged that the tampering of ballot papers had been done by one
E
Gopi Nath, a member of the staff of the High Court while the election
material had remained in the custody of the High Court. The Trial Judge on
examination, found that the lock of trunk No. 3 was open. Some other
irregularities were also found including that the missing seals on the
envelopes containing ballot papers found in that box. The Court officer had
F sworn to the fact of the sealing of trunk No. 3 and keeping of the sealed
packets in that trunk during the proceedings for recounting. Commenting
adversely on the manner in which recount had been ordered in the face of
vague pleadings and finding fault with the exercise undertaken by the Trial
Judge, which led to the election of the returned candidate being set aside,
this Court after scrutinising some of the ballot papers, but not all of them, ..
G found that some ballot papers had in fact been tampered with. After a
detailed consideration, it was observed:
"12. From an examination of the material on record, we are
of opinion that there are grounds to believe that there was
large scale tampering of ballot papers and it is most likely
H that the tampering in question was done in the High Court
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.) 363
during the time of the examination of the ballot papers. It is A
nobody's case that the tampering was done at the instance
of or for the benefit of the appellant. That being so there
was no point in the learned Judge trying to find out as to
which candidate had obtained more valid votes. In the
circumstances the only proper course was to proceed on the
basis that the decision of the Returning Officer should be B
presumed to be correct. As held by this Court in Jabar
Singh v. Genda Lal, there is a prima facie presumption in
favour of the validity of the acceptance or the rejection of
the voting papers which had been counted."
The appeal was allowed and reversing the judgment of the High Court, C
the election petition was set aside, thereby upholding the election of the
returned candidate.
The facts in the present case stand at a much better footing. As already
noticed, it is nobody's case that the irregularities were committed in the
matter of sealing and the safe custody of the election material at the D
instance of or for the benefit of the returned candidate. As a matter of fact,
we find that during the recount proceedings, the Designated Officer, did not
generally find any discrepancy between the record of the votes polled by
each of the candidate as reflected in Form XVI of the particular booth, with
the number of votes found in the packets of which either the seals were
broken or missing, when taken out of the trunks of which the seals were E
admittedly intact. The intact seals on the trunks containing the election
material rules out the possibility of any tampering with the seals on the
packets, .contained in those trunks. The position may have been different if
the seals of the trunks had been found broken or missing. The conditions in
which some of the ballot papers were found in the sealed trunk rules out the F
possibility of any tampering, because had some tampering been done
malafide, the packets could have been resealed and properly placed in the
trunks before sealing the trunks. Even otherwise the result of the recount
carried out under orders· of the Trial Court established beyond any doubt
that the figures of the votes polled as reflected in the record maintained
during the counting actually tal!ied with the votes found during the recount G
in respect of each of the candidate in respect of each one of these booths.
There is always a prima facie presumption in favour of the validity of the
acceptance or the rejection of the ballot papers which had been initially
counted and instead of that presumption being rebutted by any cogent
evidence, it has in this case been reinforced by the result of the recount. We /
are, therefore, satisfied that the breaking of the seals or the missing seals on H
364 SUPREME COURT REPORTS (1994) SUPP. 5 S.C.R.
A some of the packets containing the ballot papers, which were taken out of
the boxes duly sealed, were the result of mishandling of the packets and
were not the result of any tampering with the ballot papers. Though, the
election staff should have been more careful while packing the sealed
packets, the missing or the broken seals on some of the packets containing
the ballot papers, cannot advance the case of the appellant. What action the
B authorities may take against the erring staff members under the law is a
different matter and we leave it to them to set their house in order so that in
future no challenge is made to the impartiality of the Election Commission,
whose staff is deputed to seal the election material, on ground such as in
this case - which if proved could have established that the election process
had been fouled, giving a serious affront to the survival of democratic
c institutions and resulted in serious consequences.
In view of our findings that the appellant has failed to establish that the
election material had not been sealed properly or kept in safe custody, as
per the procedure prescribed by the guidelines and the Rules, we are
relieved of the necessity of examining the submission of Mr. Misra that a
D repoll in some of the booths should be ordered by this Court. In the High
Court it was only a prayer for recount which was made. Even when .the
... order of recount was out in issue through special leave petition in this Court
by the returned candidate, the appellant did not come forward to seek an
order of repoll. Besides, the allegations contained in the petition did not
make out any case for ordering a partial repoll. We, therefore, refrain from
E
expressing any opinion on the larger question i.e. whether it is within the
province of this court to order a repoll under, the Representation of Peoples
Act, if the fact situation in a given case so warrants and for· the situation
under which it can be so ordered and leave it to be decided in an
appropriate case at an appropriate time.
F
In view of the above discussion, the order of the High Court calls for
no interference. This appeal consequently fails and is dismissed with costs
which are assessed at Rs. 10,000 (Rupees ten thousand).
Before parting with this judgment, there is however, one matter which
G has caused us considerable concern and we wish to advert to it. After the
recount had been ordered by the learned single Judge in the High Court and
the Deputy Registrar had carried out the inspection of the ballot papers of
the specified booths, the appellant filed an application in the High Court
under Section IS I C.P.C. seeking stay of ihe further arguments to enable
the appellant to move the Supreme Court. In the said application the
H appellant referred to certain "observations" made by the learned Judge
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, J.] 365
during the course of arguments and also referred to the manner in which the A
two packets containing ballot papers which had been objected to by both
the parties and had been kept for scrutiny of the learned single Judge, were
handled by the learned Judge. The appellant went on to say that "by doing
this the Hon'ble Court was pleased to make these ballot papers suspect and
doubtful and these cannot be considered for an) decision on them regarding
their validity or otherwise as these remained in unsealed condition for B
uncertainable time without the petitioner or his counsel being present
there." The learned Judge by his order dated May 13, 1993 recorded the
following proceedings:
"Counsel for the petitioner has not appeared and the
petitioner himself has made a request that he wants to move C
the Hon'ble Supreme Court for transfer of the Election
Petition from this Court. In view of this statement, the
petition is being adjourned. The petitioner wants to place an
application for transfer on record. He may file lt in the
Registry, if so advised.
D
During the course of arguments yesterday, two sealed
envelopes relating to polling booth nos. 28 and 31 had been
opened in the presence of the parties and their counsel at the
time when the report of the commissioner who carried out
test checking was being considered. These open envelopes E
had remained in my custody in my Almirah under lock and
key. Since the case is now being adjourned, these open
envelopes be resealed and the same be handed-over to the
Additional Registrar (Judicial) alongwith other sealed
envelopes."
F
Thereafter, the appellant as already noticed, filed a transfer petition in
this court which was dismissed on 30th August 1993. The transfer petition
like the application (supra) cast aspersions on the learned Judge in the
discharge of his judicial functions and had the tendency to scandalise the
Court. It was an attempt to brow beat the learned Judge of the }ligh Court
and cause interference in the conduct of a fair trial. Not only are the G
aspersions derogatory, scandalous and uncalled for but they also tend to
bring the authority and administration of law into disrespect. The contents
of the application seeking stay as also of the transfer petition, bring the
court into disrepute and are an affront to the majesty of law and offend the
dignity of the Court. The appellant is an Advocate and it is painful that by
filing the application and the petition as a party in person, couched in an H
366 SUPREME COURT REPORTS [1994) SUPP. 5 s.c.~.
A objectiQnable language, he pennitted himself the liberty of indulging in an
action, which ill behoves him and does little credit to the noble profession
to which he belongs. An advocate has no wider protection than a layman
when he commits an act which amounts to contempt of court. It is most
unbeffitting for an advocate to make imputations against the Judge only
because he does not get the expected result, which according to him is the
B fair and reasonable result available to him. Judges cannot be intimidated to
seek favourable orders. Only because a lawyer appears as a party in person,
he does not get a licence thereby to commit contempt of the court by
intimidating the Judges or scandalising the Courts. He cannot use language,
either in the pleadings or during arguments, which is either intemperate or
unparliamentary. These safeguards are not for the protection of any Judge
c individually but are essential for maintaining the dignity and decorum of
the, Courts and for upholding the majesty of law. Judges and courts are not
unduly sensitive or touchy to fair and reasonable criticism of their
judgments. Fair comments, even if, out-spoken, but made without any
malice or attempting to impair the administration of justice and made in
good faith in proper language do not attract any punishment for contempt
D of court. However, when from the. criticism a deliberate; motivated and
calculated attempt is discernible to bring down the image of judiciary in the
estimation of the public or to impair the administration of justice or tend to
bring the administration of justice into disrepute the courts must bister
themselves to uphold the.ir dignity and the majesty of law. ·111e appellant,
has, undoubtedly committed contempt of. the Court. by the use of the
E objectionable and intemperate language. No system of justice can tolerate
such unbridled licence on the part of a person, be he a lawyer, to pennit
himself the liberty of scandalising a Court by castirig unwarranted, uncalled
for and unjustified aspersions on the integrity, ability, impartiality of
fairness of a Judge in the discharge of his judicial functions as it amounts to
an interferer. ;e with the due course of administration of justice.
F
On the attention of the learned counsel for the appellant being draWR to
the pleadings in the application in the High Court and in the transfer
petition in this Court, the counsel expressed his 'unqualified regret' on
behalf of the appellant. The appellant who was present in court also
G expressed his apology and pleaded "lack of understanding". He has
subsequently filed an affidavit on 26th August 1994. Paras l to· 4 of the
affidavit read thus:
"1. That during the course of hearing of the aforesaid
election appeal, the application . filed for staying the
H proceedings pending before the High Court of Punjab and
JASWANT SINGH v. VIRENDER SINGH [DR. ANAND, 1.) 367
Haryana in election petition No. 16 of 1991 as well as A
Transfer Petition No. 740 of 1993 were placed for the
perusal of this Hon'ble Court.
2. That I respectfully submit that the allegations made in the
said petition as well as in the transfer petition which in any
manner cast aspersion on the Hon'ble Judge of the High B
Court or in any manner amounts to interference with due
administration of justice may kindly be allowed to be
deleted from the pleadings and this Hon'ble Court may
kindly ignore the same.
3. That the appellant sincerely, tenders his unconditional C
apology for having made such statements in the stay
application before the High Court as well as in the Transfer
Petition before this Hon'ble Court.
4. That the appellant, respectfully and humbly submit that
he has the highest respect for the judiciary in this country D
and also undertake that he will be careful and will not make
such objectionable statements which either directly or
indirectly scandalise the judicial system of this country. The
appellant also sincerely express his regret for having made
such statements in the stay application and as well as in the
Transfer Petition. The · appellant hereby again tenders his E
unconditional apology and this Hon'ble Court may kindly
accept his unconditional apology and forgive him for the
objectionable statements which he had made in the
application before the High Court as well as in the Transfer
Petition before this Hon'ble Court."
F
In view of the unqualified apology tendered by the appellant and
reiterated in absolute terms by him ·and his learned counsel at the bar and
being satisfied that the appellant is genuinely repentent, we accept his
unqualified apology but issue a strong admonition and warning to him to be
more careful in future and let the matters rest there.
G
A.G. Appeal dismissed.
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