Holding

The appellant failed to make out a prima facie case for a recount; consequently the appeal is dismissed.

Summary

In the 1996 Kerala Legislative Assembly election for the Mararikulam constituency, P.J. Francis was declared elected, defeating V.S. Achuthanandan by 1,965 votes. Achuthanandan filed an election petition alleging corrupt practices, improper reception of void votes, and violations of the Constitution and the Representation of the People Act, 1951, and sought a recount of ballot papers. The High Court dismissed the petition for lack of a cause of action; the Supreme Court remitted it for trial, after which the High Court again dismissed it, finding no prima facie case for a recount. On appeal, the Supreme Court examined whether excess ballot papers, excess votes in a box, and the mixing of parliamentary ballot papers justified a recount, and whether the affiliation of an election officer could be inferred as misuse. The Court held that the appellant had not demonstrated any specific, credible irregularity sufficient to satisfy the prima facie requirement under Rule 63(2) of the Conduct of Election Rules, and therefore dismissed the appeal.

Issues considered

Whether the appellant established a prima facie case for a recount of ballot papers under Rule 63(2) of the Conduct of Election Rules
Whether excess ballot papers, excess votes in a ballot box, or mixing of parliamentary ballot papers constitute sufficient grounds for a recount
Whether the affiliation of the Election Registration Officer with a political party can be inferred as misuse of ballot papers
Whether a prayer for recount must be made before the Returning Officer to be considered
Whether the court may order a recount on the basis of vague or general allegations without specific evidence

Legislation cited

Conduct of Election Rules, 1961s. 45, s. 56, s. 56A, s. 63(2)
Representation of the People Act, 1951s. 16A, s. 83, s. 94

Subjects

election petitionrecountballot paperscorrupt practicesRepresentation of the People ActConduct of Election Rulesprima facie caseLegislative Assembly electionKerala

Judgment

---+ V.S. ACHUTHANANDAN
v.
P.J. FRANCIS AND ANR.
A

JANUARY 31, 2001

[DR. A.S. ANAND CJ., R.C. LAHOTI AND B
SHIVARAJ V. PATIL, JJ.]

Election Laws:

Legislative Assembly election-Respondent declared elected-Election c
petition filed by appellant alleging corrupt practices and non-observance of
la11~Recount of ballot papers demanded-Making out a prima facie case-
Held, appellant failed to make out a prim a facie case for recount of votes
[conduct of Election Rules, 1961-Rule 63(2)}.

Appellant and Respondents I and 2 were the contesting candidates for
D
a Legislative Assembly constituency election. Respondent No. I was declared
elected defeating the appellant by a margin of 1965 votes. The appellant filed

·-,- an election petition before High Court for declaring the election of the
respondent void and declaring the appellant as elected on the ground that the
respondent indulged in corrupt practices along with his counting agents and E
election duty officials, improper reception of void votes and non-compliance
of the Provisions of the Constitution and Representation of the People Act,
1951. The High Court dismissed the election petition on the ground that the
allegations in the petition did not disclose a cause of action warranting trial
and re-count of ballots. In appeal, this Court remitted the case back to High
Court for trial on merits and affording the parties an opportunity of leading F
evidence. The High Court, after examining the witnesses and evidence,
dismissed the election petition forming an opinion that no case for re-count
of the ballot papers was made out by the appellant. Hence the appeal.

The appellant contended that to make out a case for recount of ballots, G
a 'primafacie' case was only required to be shown and not a 'good case' with
;;;ii---- high degree of proof as held by the High Court. The appellant further
contended that the following three facts, i.e., (i) the utilisation of 2100 excess
ballot papers to the advantage of the respondent No. 1 by the Election
Registration officer, who is known to have affiliation with the political party
713 H
714 SUPREME COURT REPORTS !2001] I S.C.R.

A of respondent No. I, (ii) the number of polled ballots found to be in excess of
the ballot papers issued to different polling stations and (iii) the finding of a
number of parliamentary election ballot papers getting mixed up with
+ -
legislative assembly ballot papers, were sufficient grounds for direction of a
re-count of ballot papers.

B Dismissing the appeal, the Court

HELD : I. I. The conduct of the parties in the High Court clearly
-,....
suggests that the appellant himself entertained a doubt about the contents of
the envelope containing ballot papers and apprehended that the envelope, if
opened, the contents thereof would falsify his own plea. There was no substance
c in the plea of the appellant that the envelope was not produced from a proper
custody. On the evidence adduced, seen in the light of conduct of the appellant
and the respondent No.I, no fault can be found with the finding arrived at by
the High Court that neither the printing of the ballot papers in excess of the
number of registered voters was contrary to any statutory provisions nor the
excess ballot papers were misused as alleged in the election petition. From
D
the submission of the Election Registration officer that he was a member of
Kerala Gazetted officers Union, which is sponsored by the political party of
the respondent, it cannot be inferred that the Election Registration officer
was helping respondent No. l by misusing excess ballot papers to the advantage
of respondent No. I. Thus no case of any illegality or irregularity much less
.,. .
E the provisions of the Act or Rules made thereunder having been breached
was made out.1720-G-H; 721-A-B-CI

1.2. The court on appreciation of evidence found that the contention of
the appellant that the figures of the votes issued and the votes found in the
ballot box referring to a polling station as 729 and 828 respectively is factually
F incorrect and therefore the plea of the appellant that the number of votes _II:..
found in that ballot box exceeded the number of votes issued at the polling
station, therefore, falls to ground. The fact um of two votes found in excess
each in the ballot boxes of two polling station is also immaterial. The variation
is so marginal as not to have any material effect on the result of the election.
CJ 1722-E-FI

l.3. Mixing up of Forms 16 referable to parliamentary election witl'i
Form 16 referable to legislative assembly election was a bonujide mistake,
which could have been positively identified by summoning the record of Form
16 referable to parliamentary election. The record of election papers referable
I-I to parliamentary constituency was weeded out and destroyed after a lapse of
V.S. ACllUTHANANDAN v. !' ..I. FRANCIS 715

6 months from the date of election as no election petition was filed challenging A
the election of parliamentary seat and the appellant also did not make a
prayer for summoning that record before the expiry of the said period of 6
months. The possibility of ballot papers cast for parliamentary election having
been taken into account and included in the ballot papers of legislative
assembly election is very remote, virtually nil, as the two ballot papers are of B
different size, with names of different candidates and different election
symbols. Even if a single ballot paper would have been wrongly included at
the counting, the counting agent of any of the political parties would have
taken a strong exception to it then and there. It is pertinent to note that it is
also not the case of the appellant in the election petition that the counting
was vitiated on account of ballot papers referable to parliamentary election C
having been included in the bundle of ballot papers referable to legislative
assembly election at the time of counting. It appears that when the bundle of
Form-16 was opened in the court the mistake of about four Form 16 referable
to parliamentary election having been placed in the bundle of Form 16
referable to legislative assembly election came to the fore and the appellant
sprang up to cash on such discovery. The mistake appears to be bona fide D
and inadvertent. The appellant cannot be permitted to make out a case for re-
count of ballot papers on a ground for which there is no foundation laid by
him, not even a whisper in pleadings and which does not appear to have a ring
of truth, even primafacie. 1723-8-C, E-F-G-H; 724-AI
E
1.4. A prayer for re-count in terms of Rule 63(2) of the Conduct of
Election Rules, 1951 was not made by or on behalf of any of the contesting
candidates including the appellant before the Returning Officer which the
appellant would ordinarily have made if there was any truth in any of the
pleas canvassed by the petitioner before the High Court or this Court. The
averments made in the petition and the material brought on record by the F
appellant did not make out a case for re-count. The petitioner has indulged in
a roving enquiry and has tried to fish out materials in the hope that the re-
count if allowed may probably twist the balance of votes in his favour, which
in the facts and circumstances of the case is nothing beyond a wishful thinking
of the petitioner. A proof of prima facie case of availability of good grounds G
was needed for recount of ballot papers which the appellant has failed to
produce. 1724-B; 725-H; 726-A-CI

Ram Sewak Yadav v. Hussain Kami/ Kidwai & Ors., AIR (1964) SC
1249; Suresh Prasad Yadav v. Jai Prakash Mishra & Ors., AIR (1975) SC
376; Bhabhi v. Sheo Govind & Ors., AIR (1975) SC 2117 and MR. H
716 SUPREME COURT REPORTS [2001] I S.C.R.

A Gopalakris/11111n v. Thachady Prabhakaran & Ors., 119951 Suppl. 2 SCC
IO I, relied on.

V.S. Achuthanandan v. P.J. Francis & Anr., 11999) 3 SCC 237 referred
to.

B CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4681 of
2000.

From the Judgment and Order dated 17 .6.2000 of the Kerala High Court .,..,
in E.P. No. 11of1996-C

C Dr. A.M. Singhvi K. Sudhakaran, Ms. Malini Poduval, P.K. Bansal and
Ms. Lan Singlu Rongmei for the Appellant.

K. Rama Kumar. Roy Abraham and Himinder Lal for the Respondents.
..,.,,_.
The Judgment of the Court was delivered by
R.C. LAHOTI, J. The general election to the Legislative Assembly of
D
the State of Kerala was held on 27th April, 1996. The appellant, the respondent
No. I and the respondent No. 2, contested election from No. 99 Mararikulam
Legislative Assembly Constituency (Alappuzha District). Counting took place
on 8.5.1996 and continued upto the wee hours of 9.5.1996. The respondent .,,...~

No. I was declared elected defeating his nearest rival candidate, the petitioner,
E by a margin of 1965 votes. The distribution of votes was as under:

Total number of electors 1,68, 873
Total number of valid votes polled 1,38,452
Total number of rejected votes 2,107
F Total number of tendered votes 14

Votes secured by candidates :

I. V.S. Achuthanandan (appellant) 66337

-
G 2. Peter Markose (respondent No. 2) 3813
r:
3. P.J. Francis (respondent No.I) 68302 ""''
On 22.6.1996 the appellant filed an election petition before the High
Court of Kerala putting in issue the election of the respondent No. I mainly
H on three grounds, namely, (i) corrupt practice committed in the interest of
V.S. ACllUTHANANDAN v. P..J. FRANCIS [R.C. LAHOTL .1.J 7!7

returned candidate by his agents, election agents or the returned candidate A
-+ himself; (ii) the improper reception of votes which were void, and (iii) non
compliance with the provisions of the Constitution and the provisions of the
Representation of the People Act, 1951. It was also alleged that the result of
the election,' in so far as it concerns the returned candidate, was materially
affected on account of the grounds alleged in the petition, as abovesaid. The B
reliefs sought for were declaring the election of respondent No. I as void and
declaring the appellant as elected.

All the mater\al averments made in the petition were denied in the
written statement file·d by respondent No. I wherein preliminary objections to
the maintainability of the petition were also raised. The learned designated C
election Judge heard the parties on the preliminary objections. Vide order
dated 8.1.1997, the High Court directed the election petition to be dismissed
on the ground that the allegations in the petition did not disclose a cause of
action warranting trial of the election petition and also that the averrnents
made in the petition were not sufficient to grant the relief of recount of ballots.
This order was put in issue by the appellant in Civil Appeal No.1808 of 1997 D
filed before this cou11 which was allowed on 22nd March, 1999. The order of
the High Court dated 8.1.1997 was set aside and the case was remitted back
to the High Court for trial of the same on merits and affording the parties an
opportunity of leading evidence. In its order, reported as V.S. Achuthanandan
v. P.J. FranCis & Ant'., [1999] 3 SCC 737, this court held that the election E
petition was not liable to be rejected under Section 83 of the Representation
of the People Act, 1951 read with Order 7 Rule l l(a) of the Code of Civil
Procedure. This court further held:

"Similarly, the learned trial Judge was not justified in rejecting the
election petition without affording the appellant opportunity to place F
on record the circumstances justifying the re-count as prayed for by
him. It is true that on vague and ambiguous evidence no court can
direct re-count. But it is equally true that the doors of justice cannot
be shut for a person seeking re-count without affording him an
opportunity of proving the circumstances justifying a re-count. In his G

·- petition the appellant had given details of the alleged illegalities and
irregularities committed by Respondent 1 which according to him
justified the holding of a re-count. The learned trial Judge relied upon
some judgments where re-count was not allowed after trial and wrongly
dismissed the election petition filed by the appellant without affording
him the opportunity to substantiate the allegations made in the petition H
718 SUPREME COURT REPORTS 12001] I S.C.R.

A or to bring on record the evidencesju"stifying a re-count. ii is a sellled
posilion of law Iha! the court frying an election petition can direct
inspection and re-count of votes if the malerial facts and particulars
are pleaded and proved for directing such re-count in the ilJ/erest
ofjustice. Jn doing so, the provisions of Section 94 of the Act have
to be kept in mind and given due weight before directing inspection
B and re-count.

xxx xxx xxx xxx

C Without commenting upon the merits of the case, lest it may
prejudice the rights of the parties, we feel that the trial Judge was not
justified in rejecting the election petition at the initial stage without
affording the appellant an opportunity to prove the existence of
circumstances prima facie justifying the existence of grounds requiring
re- count."
D
[underlining by us]

On remand, the issues framed by the learned designated election Judge
were put up for trial. The petitioner examined 13 witnesses including himself
and exhibited 35 documents. The respondent No. I examined 2 witnesses
E including himself and exhibited 6 documents. After hearing the learned counsel
for the parties once again the learned designated election Judge has directed
the election petition to be dismissed forming an opinion that no case for re-
count of the ballot papers was made out. The aggrieved petitioner has filed
this appeal under Section l 16A of the Representation of the People Act, 1951
(hereinafter RPA, for short).
F
At the hearing, Dr. A.M. Singhvi, the learned senior counsel for the
appellant submitted, while attacking the judgment of the High Court, that in
order to make out a case for re-count a ·prima facie case' was required to
be shown leaving the issue as to material affect on the result of the election
G to be determined when the result of the re-count was available but the High
Court has committed a grave error of law in insisting on the election petitioner
making out a 'good case' for re-count. In other words, the High Court has
insisted on demanding a higher degree of proof for claiming a re-count, which
error has resulted in vitiating the judgment of the High Court. In the submission
of the learned senior counsel for the appellant the following three circumstances
H were shown to exist prima facie by the election petitioner on the evidence
+
V.S. ACHUTllANANDAN v. P..1. FRANCIS [R.C. LAHOT!, .I.] 719

adduced by hi11:- (i) thai 2100 excess ballot papers were got printed and A
retained by Shri Ayyappan Pillai, the Taluk Tehsildar, who was also the
Election Registration Officer and was shown to have an affiliation or intimacy
with the political paity to which the respondent No. I belongs, raising a high
degree of probability of such excess ballot papers having been misutilised to
the advantage of the respondent No. I; (ii) that on opening the ballot boxes B
it was found that the number of ballots polled were in excess of the ballot
papers issued to different polling stations - a strong pointer to the fact of
gross irregularity having been committed at the polling; and (iii) that a number
of ballot papers issued and used for election of parliamentary candidates were
found to have been mixed up with legislative assembly ballot papers. In the
submission of the learned senior counsel for the election petitioner/appellant, C
the abovesaid facts made out a sufficient ground for directing a re-count of
ballot papers and if only a re-count would have been directed the election
petitioner/appellant would have been found to have secured the highest .
number of votes and should have been declared elected. The learned counsel
for the respondent No. I has disputed the correctness of the submissions so
made and submitted, supporting the judgment under appeal, that the appellant D
was not entitled to any relief and the appeal was liable to be dismissed. We
will examine the worth of the contention so advanced by testing if any of the
three circumstances have been shown to the satisfaction of court to so exist
as to enable a finding of prima facie case for ordering re-count being recorded.
E
Circumstance (1) : It is not disputed that the total number of voters in
the constituency was 1,68,873. There were in all 194 polling stations. The
actual number of ballot papers distributed was 1,69,900, though the total
number of ballot papers got printed was 1,73,000. It was also not disputed
before this court that on the evidence adduced by the parties it was proved
that the ballot papers were got printed under the instructions of the Chief F
Electoral Officer who was the District Collector and Shri Ayyappan Pillai,
P. W. 11 had no role to play either in the printing of the ballot papers or in
appointing the total number of ballot papers to be printed. Any rules or
instructions relevant to fixing the number of ballot papers to be printed for
any constituency were neither brought to the notice of the learned designat~d G
election Judge nor placed before this court. We have, therefore, no reason to
disbelieve the statement of Ayyappan Pillai, P.W.11, as has been done by the
learned designated election Judge that some number of excess ballot papers
are required to be printed as some ballot papers may be defective and may
have to be rejected and provision has to be made for unforeseen myriad
contingencies by keeping a few ballot papers in reserve. ln fact, the learned H
720 SUPREME COURT REPORTS [2001] I S.C.R.

A senior counsel for the appellant did not raise any serious grievance about·
printing of marginally excessive ballot papers than required. The evidence
adduced by the parties goes to show that 2100 excess ballot papers were kept
in the custody of the Taluk Tehsildar. 1,69,900 ballot papers were issued to
+ -
different polling station officers by rounding up the odd number of exact
B requirement of any polling station to the next higher ten. I 000 ballot papers
issued earlier to P.W.2 Mini Antony, who was Deputy Collector (Revenue
Recovery), Alappuzha and Returning Officer for Mararikulam Legislative
Assembly Election Constituency for being used as postal ballots, were found
to be deficient and therefore another 200 ballot papers were issued to her.
Ayyappan Pillai. P. W.11 was transferred after the elections were over and
C subsequently he has retired also. At the time of transfer he handed over the
envelope containing 1900 unused ballot papers to his successor R.D.
Subrah111anyam, R. W. I, while handing over charge of Tehsil. The envelope
then remained in his custody and he produced the same in the High Court.
He deposed that the envelope which was being produced by him before the
High Court was sealed and was in the same position as it was when he had
D received the envelope in his charge. The envelope bore a superscription
certifying the contents of the envelope to be ballot papers 2100 in number
bearing serial numbers 169901to172000. Just below, it was noted that ballot
papers serial numbers 17180 I to 172000 were issued to the Returning Officer,
Mararikulam and the balance in the envelope was 1900.
E
The envelope of unused ballot papers having been produced in the
court. the opportunity should have been utilised by the election petitioner in
making a request to the learned designated election Judge to open the envelope
in the presence of the witness producing the same in the Court or at any time
thereafter so as to verify if the envelope did contain the ballot papers in
F conformity with the superscribed endorsement appearing on the envelope .ii
and the cat would have been out of the bag if that be so. The learned
designated election Judge has noted in the impugned judgment that the
election· petitioner did not seek for opening and examining the contents of
the envelope marked Exhibit-XI. After the hearing was concluded, the
G respondent No. I moved an application praying for opening of the envelope
and examining the contents thereof. This application filed by the respondent
No. I was objected to by the election··petitioner submitting that the envelope .,,,...
was not produced from proper custody and therefore it was not to be opened.
We fail to appreciate the stand taken by the election petitioner. The conduct
of the parties in the High Court clearly suggests that the election petitioner
H himself entertained a doubt about the contents of the envelope Exhibit-Xi and
V.S ACHUTHANANOAN v. P.J. FRANCIS [R.C. LAHOTI, .I.] 721
apprehended that the envelope, if opened, the contents thereof would falsify A
his own plea. There was no substance in the plea of the election petitioner
that the envelope was not produced from a proper custody. In our opinion,
on the evidence adduced, seen in the light of conduct of the election petitioner
and the respondent No. I, no fault can be found with the finding arriv'ed at
by the learned designated election Judge that neither the printing of the ballot B
papers in excess of the number of registered voters was contrary to any
statutory provisions, nor the excess ballot papers were mis used as alleged in
the election petition. It is true that during cross-examination Ayyappan Pillai,
P. W.11, candidly admitted that he was a member of Kerala Gazetted Officers
Union, which was a union sponsored by Congress(!), the political party which
had set up respondent No. I as candidate. Merely from this admission, we C
cannot infer that the officer was helping the respondent No. I by misutilising
excess ballot papers to the advantage of respondent No.1. Thus no case of
any illegality or irregularity much less the provisions of the RPA or Rules
made thereunder having been breached was made out by reference to
circumstance (i).
D
Circumstance (ii) : The petitioner had counting agents appointed when
the ballot boxes were opened and subjected to counting. At the end of the
counting the result of voting at polling stations, as specified in Rule 56 of
. the Conduct of Election Rules, 1951 (hereinafter 'Rules', for short) was recorded
polling station wise in Form 16 and the final result sheet was prepared in Form E
20 in accordance with Rule 56(7). Copies of such Form 16 and final result
sheets in Form 20 were made available to the counting agents for the contesting
candidates. Based on such Form 16 and Form 10 the petitioner compiled the
statement of the ballot papers issued by Presiding Officers at various polling
stations and the total votes found in the ballot boxes and set out the
compilation in a tabular form in sub-para (c) of Para 11 of the election petition. F
The table compiled by the petitioner shows that in almost all the polling
stations (excepting 5) the number of total votes found in the ballot boxes fell
short by I or 2 than the number of ballots issued. In polling station Nos. 2
and 30, the shortage was of 6 and 10 votes respectively. In polling station
Nos.119 and 120, 2 'votes each were found in excess. On these facts, the G
learned senior coun.sel for the appellant very fairly submitted that nothing
much turned out in as much as the possibility of a voter or two not casting
the ballot paper issued to them and taking it away or having wasted the same
could not be ruled out. The excess of 2 ballot papers each in polling station
Nos. 119 and 120 also was not very material. However, according to the
learned senior counsel, it was the excess of 99 ballot papers found in the H
722 SUPREME COURT REPORTS [2001] I S.C.R.
. -~
A ballot" box referable to polling station No.79 which was 1iiaterial and was a +
positive indicator of unauthentic ballot papers having been used and cast in
the election.

"we have very minutely examined this plea of the learned senior counsel
for the appellant and we find that the submission is based on factually wrong
B premises. In the final result sheet (Form 20) figures referable to polling station
No.79 appear at page 118 of the Paper Book (Vol.II}. It appears that the number
of total votes found in the ballot boxes of polling station No.79 was typed
as '828' + I tendered vote. However, this figure '828' contained a typing error
and therefore the first digit of 8 was corrected by hand to read as 7 making
C the figure '728'. The correction so made was initialled by the Returning
Officer. This final result sheet (Forrn-20} runs into 13 pages, each page
containing the number of ballots relating to I 0 to 13 polling stations
approximately and totalled up at the bottom of every page. The total of
preceding page has been carried forward to the next page and then added to
the total of that page. The figure of 728 being the total number of votes found
D in the ballot box referable to polling station No.79 tallies with and fits in with
the total of that page and the grand total at the end. It is pertinent to note
that the figures of total on individual pages or the grand total at the end does
not bear any correction. It is, therefore, very clear that the total votes found ?' ~
in the ballot box of polling station No, 79 was 728 and not 828. In the table
E contained in para 11 (c) of the election petition the petitioner has taken the
figures of the votes issued and the votes found in the ballot box referable
to polling station No.79 as 729 and 828 respectively. The latter figure is
incorrect. The very foundation of the plea that the number of votes found in
that ballot box exceeded the number of votes issued at the polling station falls
to ground. The factum of two votes found in excess each in the ballot boxes
F of polling station Nos. 119 and 120 is immaterial. The variation is so marginal
as not to have any material effect on the result of the election.

Circumstance (iii) : The record of ballot paper account kept in Form 16
[referable to Rules 45, 56(7) and 56A(7)] of the Conduct of Election Rules was
G summoned by the election petitioner and produced in the court by P. W.2,
Mini Antony, the Returning Officer. It is an admitted fact that the elections
of the legislative assembly and parliamentary constituency in Alappuzha
District were held on the same day. Voting of the two was conducted
simultaneously. The same ballot box was used for casting ballots referable to
legislative assembly and parliament both. However, at the time of counting,
H on opening tl1e ballot boxes, the ballot papers were separated and separate
V.S. i\CHUTHANANDAN v. P..l. rRANCIS [R.C. LAHOTI, .I.] 723

bundles of ballot papers relating to legislative assembly and parliament were A
made and then counted. Before the High Court when the bundle of Form 16
of legislative assembly election was opened, it was found to contain a few
Form 16 (about four in number) referable to parliamentary election pla~ed in
the bundle amidst Form 16 referable to legislative assembly elections. Such
forms have been produced at pages 102, 104, I 07 and I 09 of the Paper Book
(Vol.II). The High Court has found that when the election process was over B
and the records were being sorted out, arranged and consigned to safe
custody, some Forms 16 referable to parliamentary election got mixed up with
the Forms 16 referable to legislative assembly election and that it was a
bonafide mistake. Such mistake could have been positively identified by
summoning the record of Form 16 referable to parliamentary election. However, C
the record of election papers referable to parliamentary constituency of
Alappuzha District was weeded out and destroyed after the lapse of 6 months
from the date of election as no election petition was filed challenging the
election of parliamentary seat and the election petitioner did not make a prayer
for summoning that record befoie the expiry of the said period of 6 months.
D
There are additional reasons also as to why we find this ground to be
without any merit and substance. Firstly, the four Form 16 referable to the
parliamentary election and found contained in the bundle of Form 16 referable
to legislative assembly election in question contain the serial numbers of the
ballot papers and those serial numbers are of the ballot papers used in the E
parliamentary election and not of the legislative assembly election. Secondly,
the possibility of ballot papers cast for parliamentary election having been
taken into account and included in the ballot papers of legislative assembly
election is very very remote, virtually nil, as the two ballot papers would be
of different size, with names of different candidates and different election
symbols. Even if a single ballot paper would have been wrongly included at F
the counting, the counting agent of any of the political parties would have
taken a strong exception to it then and there. It is pertinent to note that it
is also not the case of"the petitioner in the election petition that the counting
was vitiated on account of ballot papers referable to parliamentary election
having been included in the bundle of ballot papers referable to legislative G
assembly election at the time of counting. It appears that when the bundle
of Form-16 was opened in the court the mistake of about four Form 16
referable to parliamentary election having been placed in the bundle of Form
16 referable to legislative assembly election came to the fore and the election
petitioner sprang up to cash on such discovery. The mistake appears to be
bona fide and inadvertent. The election petitioner cannot be permitted to H
724 SUPREME COURT REPORTS l2001J I S.C.R.

. A make out a case for re-count of ballot papers on a ground for which there is
no foundation laid by him, not even a whisper, in pleadings and which does
not appear to have a ring of truth, even prima facie.

That apa11 admittedly a prayer for re-count in tenns of Rule 63(2) of the
Conduct of Election Rules, 1951 was not made by or on behalf of any of the
B contesting candidates including the petitioner before the Returning Officer
which the election petitioner would ordinarily have made if there was any
truth in any of the pleas canvassed by the petitioner before the High Court
or this court.

The power vesting in the court seized of an election dispute to order
C for inspection and re-count of the ballot papers has been subject matter of
several decisions of this Court which have by authoritative exposition settled
the law thereon. Without burdening this judgment with the series of available
decisions, it would suffice to mention a few only, namely, Constitution Bench
decision in Ram Sewak Yadav v. Hussain Kami/ Kidwai and Ors., AIR (1964)
D SC 1249, three-Judge bench decision in Suresh Prasad Yadav v. J'.Ai Prakash
Mishra & Ors., AIR (1975) SC 376, Bhabhi v. Shea Govind and Ors,. AIR
(1975) SC 2117 which refers to all the decisions available till then and a recent
decision in MR Gopalkrishnan v. Thachady Prabhakaran & Ors., [1995]
Suppl. 2 SCC IOI to which one of us (Dr. A.S. Anand, J., as his Lordship then
was) is a party. We may briefly restat1~ the principles as under:
E
I. The secrecy of the ballot is sacrosanct and shall not be permitted to
be violated lightly and merely for asking or on vague and indefinite allegations
or averments of general nature. At the same time purity of election process
has to be preserved and therefore inspection and re-count shall be permitted
but only on a case being properly made out in that regard.
F
2. A petition seeking inspection and re-count of ballot-papers must
contain averments adequate, clear and specific making out a case of improper
acceptance or rejection of votes or non-compliance with statutory provisions
in counting. Vague or general allegations that valid votes were improperly
G rejected, or invalid votes were improperly accepted would not serve the
purpose.

3. The scheme of the ru !es prescribed in Part V of the Conduct of
Election Rules, 1961 emphasises the point that the election petitioner who is
a defeated candidate, has ample opportunity to examine the voting papers
H before they are counted, and in case the objections raised by him or his

r
V.S. ACHUTHANANDAN v. l' ..1. FRANCIS [R.C. LAHOTI. J.j 725
election agent have been improperly oyer-ruled, he knows precisely the nature A
of the objections raised by him and.the voting papers to which those objections
related. It is in the light of this backgroun'd that S.83 (I) of the Act has to
be applied to the petitions made .for inspection of ballot boxes. Such an
application must contain a concise statement of the material facts.

4. The dection-petitioner must produce trustworthy material in support B
of the allegations made for a re-count enabling the Court to record a satisfaction
of a prima-facie case having been made out for grant of the prayer. The Court
must come to the conclusion that it was necessary and imperative to grant
the prayer for inspection to d<J full justice between the parties so as to
completely and effectually adjudicate upon the dispute. C

5. The power to direct inspection and re-count shall not be exercised
by the Court to show indulgence to a petitioner who was indulging in a
roving enquiry with a view to fish out material for declaring the election to
be void.
D
6. By mere production of the sealed boxes of ballot-papers or the
documents forming part of record of the election proceedings before the
Court the ballot papers do not become a part of the court record and they
are not liable to be inspected unless the court is satisfied in accordance with
the principles stated hereinabove to direct the inspection and re-count.
E
7. In the peculiar facts of a given case the court may exercise its power
to permit a sample inspection to lend further assurance to the prima~facie
satisfaction of the court regarding the truth of the allegations made in support
l of a prayer for re-count and not for the purpose of fishing out materials.

Once a re-count is validly ordered the statistics revealed by the re- F
count shall be available to be used for deciding the election dispute. However,
if the validity of an order passed by High Court permitting inspection of ballot
papers and directing a recount is brought in issue before the Supreme Court,
the facts revealed by re-count cannot-be relied upon by the election-petitioner
to support the prayer and sustain the order for re-count if the pleadings and G
material available on record anterior to actual re-ce>unt did not justify grant
of the prayer for inspection and re-count.

On the facts as set out hereinabove we are clearly of the opinion that
the avennents made in the petition and the material brought on record by the
election-petitioner did not make out a case for re-count. The petitioner has H
726 SUPREME COURT REPORTS [2001) 1 S.C.R.

A indulged into a roving enquiry and has tried to fish out materials in the hope
that the re-count if allowed may probably twist the balance of votes in his
favour which in the facts and circmstances of the case is nothing beyond a
wishful thinking of the petitioner.

We also do not agree with the submission of the learned senior counsel
B for the appellant that this court had directed the High Court to permit an
inspection and re-count if a prima.facie case was made out for such relief but
the High; Court has unreasonably insisted on availability of 'good grounds'
before allowing the relief of recount. In Suresh Prasad Yadav's case (supra)
the law stated by this Court is that the order for recount of ballot papers
C would be justified if, inter a/ia, 'on the basis of evidence adduced the
requisite allegations are prima.facie established, affording a good ground for
believing that there has been a mistake in counting.' This answers the
submission which is more a play on jugglery of words. What was needed was
proof of 'prima .facie case of availability of good grounds' wherein the
election petitioner/appellant has failed.
D
For the foregoing reasons we find ourselves entirely in agreement with
the view taken by the learned designated election Judge declining the prayer
for re-count and finding the election petitioner not entitled to such relief. The
appeal is devoid of any merit and is liable to be dismissed. It is dismissed
accordingly, though, without any order as to the costs in the facts and
E circumstances of the case.

B.S. Appeal dismissed.