Holding

The Supreme Court held that the Sub‑Divisional Magistrate’s order for a recount was justified due to material discrepancies, missing poll‑booth records, and prima facie evidence of irregularities, and therefore set aside the High Court’s order.

Summary

The appellant Vijay Bahadur contested the election of Gram Pradhan in Chaka village, alleging a discrepancy of 19 votes between the Presiding Officer’s oral statement (1194 votes) and Form 46 (1213 votes) and claiming irregularities such as missing poll‑booth diaries and police interference. He filed an election petition under Section 12‑C of the U.P. Panchayat Raj Act, 1947, seeking a recount, which the Sub‑Divisional Magistrate ordered. The High Court, invoking Article 226, set aside the recount order, holding that the petition lacked documentary support and that the statutory remedy was final. On appeal, the Supreme Court examined the statutory framework, prior precedents on recounts, and the importance of ballot secrecy, concluding that the material discrepancies, missing records, and affidavits of three candidates justified a recount. Consequently, the Court restored the Sub‑Divisional Magistrate’s order and set aside the High Court judgment. The appeal was allowed, directing the magistrate to fix a date for the recount.

Issues considered

The propriety of the Sub‑Divisional Magistrate’s order for a recount of votes under Section 12‑C of the U.P. Panchayat Raj Act, 1947.
Whether the High Court could quash the recount order under Article 226 despite the statutory bar under Article 243‑O and the finality of the order under the Act.
Whether the alleged discrepancy and missing election documents breach the secrecy of the ballot and justify judicial intervention.

Legislation cited

Constitution of India
Representation of the People Act, 1951
Right to Information Act, 2005
U.P. Panchayat Raj Act, 1947s. 12, s. 12-C(1), s. 12-C(6), s. 12-C(7), s. 12-C(8), s. 12-C(9)

Subjects

ElectionGram PradhanRecount of votesDemocracyFree and fair electionsConstitutional governanceFundamental rights

Judgment

[2025] 4 S.C.R. 11 : 2025 INSC 332

Vijay Bahadur
v.
Sunil Kumar & Ors.
(Civil Appeal No. 14311 of 2024)
06 March 2025
[Sanjay Karol* and Nongmeikapam Kotiswar Singh, JJ.]

Issue for Consideration
Allegation of disparity in the counting of votes in the election for
position of ‘Gram Pradhan’. Whether the Sub-Divisional Magistrate,
was justified in ordering a recount of the votes cast.

Headnotes†
U.P. Panchayat Raj Act, 1947 – Election for ‘Gram Pradhan’ –
The genesis of the appellant’s discontent was the inconsistency
between the Presiding Officer’s statement to him that in polling
booths 43, 44 and 45 a total of 1194 votes were cast, and
the final tally given under ‘Form 46’ which showed a total of
1213 votes cast in the said booths – Election Petition – The
Sub-Divisional Magistrate ordered a recount of the votes
casted – Correctness:
Held: The allegation made is that there is a disparity in the count
of votes informed to the appellant and that finally disclosed in the
official form – It relates to 19 votes, i.e., the difference between
1193 and 1213 – The margin of victory of the respondent was 37
votes, and so, in a sense, victory of position would remain yet
elusive of the appellant – However, the concern lies is in how
one got to power – This process has to be in accordance with
constitutional principles and established norms-If not, then such a
person has to be deprived of the power, and the decision-making
by the people must begin once more – When the officer was
present there and he informed the candidate, appellant herein,
of the number of votes cast, then why there was any difference
in number – Four persons contested for the post of ‘Pradhan’ –
Three of the four persons submitted by way of affidavit that they
had doubts regarding the propriety of the election, and they would
support a recount of votes – There was also use of police force

* Author
12 [2025] 4 S.C.R.

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to remove the appellant from the vicinity of the polling area – The
diary of the Presiding Officer of the polling booths, which is an
essential document recording the casting of votes, could not be
found despite a concerted effort – If the Presiding Officers’ records
are missing and cannot be verified, it can be found that the final
conclusion is within the realm of questionability – Each and every
document pertaining to an election is important and all efforts should
be made to preserve the same – The manner in which election
was conducted, and that important documents pertaining to the
election are missing and such absence is unexplained, the recount
in the present facts would be justified. [Paras 14, 15, 16, 17, 18]

Case Law Cited
Ram Sewak Yadav v. Hussain Kamil Kidwai & Ors. [1964] 6 SCR
238 : AIR 1964 SC 1249 – followed.
Vadivelu v. Sundaram [2000] Supp. 3 SCR 642 : (2000) 8 SCC
355; Suresh Prasad Yadav v. Jai Prakash Mishra [1975] 3 SCR
21 : (1975) 4 SCC 822; Beli Ram Bhalaik v. Behari Lal Khachi
(1975) 4 SCC 417; Satyanarain Dudhani v. Uday Kumar Singh
(1993) Supp. 2 SCC 82; Udey Chand v. Surat Singh [2009] 15
SCR 147 : (2009) 10 SCC 170 – relied on.
T.N Seshan v. Union of India [1995] Supp. 2 SCR 106 : (1995) 4
SCC 611; Anoop Baranwal v. Union of India [2023] 9 SCR 1 :
(2023) 6 SCC 161; Ram Adhar Singh v. District Judge, Ghazipur
1985 SCC OnLine All 246; Bhabhi v. Sheo Govind [1975] Supp. 1
SCR 202 : (1976) 1 SCC 687 – referred to.

List of Websites
Abraham Lincoln Presidential Library and Museum https://
presidentlincoln.illinois.gov/gettysburg

List of Acts
U.P. Panchayat Raj Act, 1947; Right to Information Act, 2005;
Representation of the People Act, 1951; Constitution of India.

List of Keywords
Election; Election for ‘Gram Pradhan’; Recount of votes; Democracy;
Free and fair elections; Constitutional governance; Fundamental
rights.
[2025] 4 S.C.R. 13

Vijay Bahadur v. Sunil Kumar & Ors.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14311 of 2024
From the Judgment and Order dated 27.01.2023 of the High Court
of Judicature at Allahabad in WRITC No. 35734 of 2022

Appearances for Parties
Advs. for the Appellant:
S.R. Singh, Sr. Adv., Sushant Kumar Yadav, Prateek Yadav, Mangal
Prasad, Ajay Yadav, Anurag Singh, Prithvi Yadav, Ms. Radha Rajput,
Mitr Rao, Ankur Yadav.
Adv. for the Respondents:
Ms. Sweta Rani, Shaurya Sahay, Aditya Kumar.

Judgment / Order of the Supreme Court

Judgment

Sanjay Karol, J.

PRELUDE
“At the bottom of all the tributes paid to democracy is the
little man, walking into the little booth, with a little pencil,
making a little cross on a little bit of paper—no amount of
rhetoric or voluminous discussion can possibly diminish
the overwhelming importance of that point.”
- Winston Churchill
- House of Commons,
31 October 1944

1. In the famous Gettysburg Address1 delivered on 19th November, 1863,
President Abraham Lincoln uttered possibly the best description of
democracy there ever would be –
“government of the people, by the people, for the people”
People, unquestionably, are at the center of this conception. The
Indian Constitutional vision exemplifies this position. Right from the

1 Abraham Lincoln Presidential Library and Museum- https://presidentlincoln.illinois.gov/gettysburg
14 [2025] 4 S.C.R.

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inception of democratic rule, universal adult franchise has found its
place in our system of governance. Each election upholding these
cherished values of public participation, equality and integrity of the
vote is a testament to the vision of the founders. Each and every
citizen, when it comes to choosing representatives in the parliamentary
system, is indeed equal, when in other scenarios they may not be
so, for a variety of reasons - class and caste divisions that are
still deeply entrenched, gender inequality, lack of awareness and
opportunities for disabled persons, etc.
This momentary equality assumes further importance as it signifies the
achievability of the aspiration of equality for all through constitutional
mechanisms. Granted that equality in other spheres cannot only be
a product of constitutional action, and have to be accompanied by
social change, but nonetheless, the strength of constitutional action
is manifested thereby.
A.M Ahmadi, CJI, writing for a Constitution Bench in T.N Seshan v.
Union of India,2 while concerned with an Ordinance promulgated
by the President of India being Ordinance (No. 32 of 1993) entitled
“The Chief Election Commissioner and other Election Commissioners
(Conditions of Service) Amendment Ordinance, 1993” to amend “The
Chief Election Commissioner and other Commissioners (Conditions of
Service) Act, 1991” challenged by the then incumbent Chief Election
Commissioner, observed :
“10. The Preamble of our Constitution proclaims that we
are a Democratic Republic. Democracy being the basic
feature of our constitutional set-up, there can be no two
opinions that free and fair elections to our legislative bodies
alone would guarantee the growth of a healthy democracy
in the country…”
More recently, this Court in Anoop Baranwal v. Union of India,3
the majority speaking through K.M Joseph J., observed :
“124. Unlike demands of a formal democracy, the hallmark
of a substantive democracy and if we may say so, a
liberal democracy must be borne in mind. Democracy

2 (1995) 4 SCC 611
3 (2023) 6 SCC 161
[2025] 4 S.C.R. 15

Vijay Bahadur v. Sunil Kumar & Ors.

is inextricably intertwined with power to the people.
The ballot, is more potent than the most powerful gun.
Democracy facilitates a peaceful revolution at the hands
of the common man if elections are held in a free and
fair manner. Elections can be conflated with a non-violent
coup capable of unseating the most seemingly powerful
governing parties, if they do not perform to fulfil the
aspirations of the governed. Democracy is meaningful
only if the sublime goals enshrined in the Preamble to the
Constitution receive the undivided attention of the rulers,
namely, social, political and economic justice. The concepts
of liberty, equality and fraternity must not be strange
bedfellows to the ruling class. Secularism, a basic feature
of the Constitution must inform all actions of the State,
and therefore, cannot be spurned but must be observed in
letter and spirit. Democracy can be achieved only when the
governing dispensation sincerely endeavours to observe
the fundamental rights in letter and spirit. Democracy also,
needless to say, would become fragile and may collapse,
if only lip service is paid to the rule of law.”
(Emphasis supplied)

2. Although there exists copious amounts of literature on a few of the
topics touched upon in the preceding paragraph, i.e., democracy,
free and fair elections, constitutional governance, fundamental rights,
etc., this brief forerunner became important given the context in
which this appeal arises.

THE APPEAL
3. Before us are, primarily, two persons, opponents in the electoral
process, the appellant, the vanquished and the respondent, the victor.
Challenged herein is the judgment and order dated 27th January
2023 passed by the High Court of Judicature at Allahabad in Writ-C
No.35734 of 2022, under Article 226 of the Constitution of India.
4. By way of background, it shall suffice to record that the Government of
the State of Uttar Pradesh declared election for the position of ‘Gram
Pradhan’ for the village Chaka @ Chak, Saidabad, Tehsil Handia,
in the District of Prayagraj, vide notification dated 17th March 2021.
Voting therefor was to take place on 2nd and 3rd of May 2021. The
16 [2025] 4 S.C.R.

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genesis of the appellant’s discontent was the inconsistency between
the Presiding Officer’s statement to him that in polling booths 43, 44
and 45 a total of 1194 votes were cast, and the final tally given under
‘Form 46’ which showed a total of 1213 votes cast in the said booths.

PROCEEDINGS LEADING UPTO THIS APPEAL
5. Aggrieved by this difference of votes, and, obviously, the end
result, wherein Pradhan’s seat remained 37 votes too far out of his
reach, suspecting there to be a foul play, the appellant wrote to the
Election Officer, alleging that votes in his favour were cancelled by
the persons deputed at table Nos.13, 14 and 15 at Nyay Panchayat
Utarav, in connivance with respondent No.1. It was, thus, requested
of the Election Officer that he may affect a recount of the votes of
booth Nos.43, 44 and 45. This application was not entertained by
the Officer.
5.1 The appellant then preferred Election Petition No. 0210 of
2021 titled analogously to this appeal. The substance of the
allegations made/grievance agitated before the Sub-Divisional
Magistrate in an application under Section 12-C(1) of the U.P.
Panchayat Raj Act, 19474 was captured in paragraphs 7 to 10
thereof. The same is reproduced hereunder : -
“7. That presiding officer/election officer, after voting was
completed; prior to seal of ballot box, orally informed the
petitioner that for the post of Pradhan at polling booth 43,
44 and 45, total 1194 votes have been casted. Although
as per form 46, total 1213 votes were casted. It is clear
from the above said counting that 19 (Nineteen) ballot
papers were prepared and have been inserted in ballot box
bringing it from outside. Hence this 19 (Nineteen) votes
are illegal and liable to be cancelled. Ballot box was not
sealed before the agent of petitioner.
8. That as per the form 46, at polling booth no 43, total
21 votes, at polling booth no 44, total 20 votes and at
polling booth no. 45, total 20 votes, have been cancelled.
Correct fact is this that Election officer intentionally in

4 Hereinafter, ‘the Act’
[2025] 4 S.C.R. 17

Vijay Bahadur v. Sunil Kumar & Ors.

order to extend benefit to defendant Sunil, has cancelled
the votes casted in favor of petitioner. As to why election
officer did so, he is the best person to reply the same.
9. That during counting, counting officer declared that at
polling booth no 43, petitioner Vijay Bahadur got 233 votes,
defendant Sunil Kumar got 231 votes, defendant Santosh
9, and defendant Vinod got 8 votes and 20 ballot papers
were declared invalid. At polling booth no 44, petitioner
Vijay Bahadur got 148 votes, defendant Sunil Kumar got
184, defendant Santosh 23, and defendant Vinod got 2
votes and 20 ballot papers were declared invalid. At polling
booth no 45, petitioner Vijay Bahadur got 133 votes,
defendant Sunil Kumar got 136, defendant Santosh 43,
and defendant Vinod got 12 votes and 10 ballot. papers
were declared invalid. Although as per form 46, at polling
booth no 43, total 21 votes have been declared invalid
and in polling booth no 45, defendant Sunil Kumar shown
have got 136 votes. From above statement, this finding
is clear that election officer who have shown number of
votes in form no 46, they are different from the number
of votes declared.”
5.2 By way of evidence, the testimonies of the appellant, one Nitesh
Kumar and Vinod Kumar (one of the contestants in the Election)
were recorded along with that of respondent No.1 herein, either
by way of oral testimony or statement given.
5.3 The appellant sought information under the Right to Information
Act, 2005, seeking the ‘Matpatra Lekha’ and Diary of the
Presiding Officer. The competent authority directed the Assistant
Election Officer vide order dated 11th August, 2022 to provide
him the documents as sought. However, in his reply dated
30th August, 2022, the Assistant Election Officer said that the
documents could not be located despite their best efforts and,
therefore, could not be provided.
5.4 The Learned Sub-Divisional Magistrate, having considered the
evidence on record passed order dated 31st October 2022,
acceding to the appellant’s prayer and directing a recount of
the votes cast at Booth Nos.43, 44 and 45. Relevant extract
thereof is as below :
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“On the basis of the written arguments submitted by
the petitioner and the oral arguments advanced by the
defendant, I am in conclusion that there are sufficient
grounds to get the recounting done by allowing the present
petition. I find it fit in law to get the recounting done on
the post of Gram Pradhan of Gram Panchayat Chaka @
Chakpurandare for maintaining the belief of the petitioner
on the judicial system and the counting process. Thus,
on the basis of affording opportunity of sufficient hearing
to the petitioner and defendant No.1 and statement and
the evidence submitted by the parties, the arguments of
the learned counsel for the parties, the arguments of the
learned counsel for the parties (S/Sh.Vishnu Pandey and
Ashok Kumar Mishra learned counsel for the petitioner)
and the judgment produced and the arguments of S/Sh.
K.K. Shukla and O.P. Mishra, learned counsel for defendant
No.1 advanced intellectually on Issue Nos. 1 to 5, and the
submissions and evidence submitted by defendant No.1
on Issue Nos.6, 7, 8, and on the basis of observations
made on the issues in totality, I find the petition filed by
the petitioner, the arguments advanced by the learned
counsel for the petitioner, and the judgments liable to be
allowed in this election petition. I find sufficient grounds to
get the recounting done by allowing the election petition.
As after uploading the proceeding/ order of disposing of
the petition finally at the Revenue Court Management
System, it would not be possible to upload the recounting
result, in such a circumstance this interlocutory order is
being uploaded.
Hence, it is ordered that while allowing the election
petition filed against Election Result dated 02.05.2021
(Proforma-46) of Gram Pradhan (Gram Panchayat) of
Gram Panchayat Chaka @ Chakpurandar of Vikas Khand
Saidabad under the Third Phase Panchayat Election –
2021, the order of recounting passed…”
5.5 Aggrieved by this order, respondent No.1 herein filed a revision
bearing particulars of Election Revision No.146 of 2022. The
same was dismissed by order dated 5th November 2022.
[2025] 4 S.C.R. 19

Vijay Bahadur v. Sunil Kumar & Ors.

5.6 It is, at this stage, that the writ petition, in which the judgment
impugned herein was passed, came to be filed.
6. In the writ petition, respondent No.1 herein, argued inter alia:
(a) The challenge on the part of respondent No.1, (appellant
herein) to Form 46 is unfounded for there is no irregularity in
the functions carried out by the election officer.
(b) The petitioner (respondent herein) has, in support of his position
of the actions of the Election Officer being correct and well-
founded, has produced affidavits of certain persons declaring
that there indeed had been no irregularity to taint the sanctity
of the election.
(c) The 51 votes declared illegal by the Election Officer has been
so done after due inspection. The Sub-Divisional Magistrate who
was arrayed as respondent No.7 had, despite the Election Officer
having done so, in accordance with law, ordered a recount.
(d) No documentary evidence had been placed on record by the
respondent or those who submitted affidavits in support of their
position and neither did the Magistrate consider the content of
the affidavit produced by those in support of the petitioner while
passing the order of recounting of votes.
(e) The order passed by the Sub-Divisional Magistrate is based on
vague and indefinite allegations, and is further, non-speaking
as it does not record any independent finding.
(f) The principle of the ‘secrecy of the ballot’ stood compromised
by the order of recount.
It was, thus, prayed for that a writ of certiorari be issued, quashing
the order of recount and the further order dated 7th November 2022,
fixing 29th November 2022 as the date for the recount. Further, it
was prayed that a writ in the nature of mandamus be issued to the
respondent No.1, directing him not to interfere in the work of the
petitioner as ‘Gram Pradhan’.
7. The writ petition making the arguments as above came to be heard
by a learned Single Judge of the High Court. It is this judgment and
order which is challenged in this appeal. The relevant extract of the
impugned judgment is as under :
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“15. The above material finding is based on without
inspection of Proforma-46 as the Election Tribunal despite
power has not called the documents for verification in
regard to verify allegations of difference between the
number of votes cast and the number of vote counted.
The above finding is completely based on an oral
assertion as mentioned in the election petition as well
as the impugned order that the Election Officer orally
communicated a different number of total votes cast.
The petitioner has not submitted any document I support
of their assertion made in the election petition though
the assertion made in election petition appears to be
sufficient but in absence of any supporting documents
are not sufficient to pass any order of recounting as
observed above …”

THE CASE OF THE PARTIES
8. Aggrieved by the judgment and order, as aforesaid, the appellant
has approached this Court under Article 136 of the Constitution of
India. By way of this special leave petition, it is urged that -
(a) The decision of the Sub-Divisional Magistrate was in accordance
with the judgment of this Court in Ram Sewak Yadav v. Hussain
Kamil Kidwai & Ors.5 That apart, such an order is justified in
view of the averment made in paras 7, 8, 9, 10 and 12 in the
Election Petition as also supported by oral evidence.
(b) The principle of secrecy of the ballot is not compromised by the
order of the Sub-Divisional Magistrate and as such, the order
of the High Court is erroneous.
9. It is further submitted that :-
(a) An order passed under Section 12-C of the Act is final and
not open to challenge under Article 226 of the Constitution of
India. This is in view of Article 243-O of the Constitution, which
postulates a bar in respect of interference by the Courts in
electoral matters.

5 AIR 1964 SC 1249
[2025] 4 S.C.R. 21

Vijay Bahadur v. Sunil Kumar & Ors.

(b) The above-named Act provides for a remedy against an order
passed therein, i.e., Section 12-C (6) of the Act by way of revision.
(c) As to when an order for inspection/recounting of ballot papers
can be passed stands clarified by the Full Bench of the High
Court in Ram Adhar Singh v. District Judge, Ghazipur 6
which followed the judgments of this Court in Hussain Kamil
Kidwai (supra) and Bhabhi v. Sheo Govind 7 which were
passed interpreting the provisions of the Representation of the
People Act, 19518. In view of the above, it is submitted that the
High Court erred in entertaining a writ petition against an order,
which was interlocutory in nature, aimed at doing complete
justice inter se the parties.
(d) The Act does not provide directly for the power of recount but
the same is implicit, having regard to the powers contained
in Section 12-C and the same is to be exercised as per the
principles laid down in various decisions of this Court.
(e) The averments made in the election petition, more specifically
paragraphs 7 to 10 are prima facie correct, and the High Court
erred in setting aside the order of recount without adverting to
findings of improper acceptance and rejection of ballot papers,
returned by the Sub-Divisional Magistrate.
10. The case of the respondent, as can be understood from the record
is as follows:
(a) The appellant has not produced any document whatsoever
to support his claims/assertions and, therefore, the order of
recount is on insufficient basis;
The secrecy of ballots should not be violated on flimsy grounds
that are frivolous, vague and indefinite.
(b) The respondent, in favour of the stand taken by the Election
Officer has filed affidavits of certain persons attesting to the
absence of irregularity in the process adopted. Vinod Kumar,
who has submitted an affidavit in favour of the recount supporting

6 1985 SCC OnLine All 246
7 (1976) 1 SCC 687
8 Hereafter “RPA”
22 [2025] 4 S.C.R.

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the case of the petitioner herein was, in fact, not present at the
polling booth since he was scheduled to enter into matrimony
on that date. One Ajay Kumar, who was the agent of the above-
said Vinod Kumar at the polling booth, has on oath, stated that
no irregularity had been committed by the Election Officer;
(c) Given the above, Vinod Kumar’s affidavit, was therefore,
ostensibly false which in itself is a punishable offence. The High
Court, hence, in the absence of any documentary evidence to
support the oral submissions made by the appellant herein,
rightly set aside the order of recount.
11. The question that flows from having heard the learned counsel for the
parties apropos the submissions recorded supra, for the consideration
of this Court is whether the Sub-Divisional Magistrate, was justified
in ordering a recount of the votes cast.

ANALYSIS AND FINDINGS
12. The U.P. Panchayat Raj Act, 1947, under Section 12 provides
for the constitution of Gram Panchayats, the manner of election
thereto, allowances of the elected members, superintendence of the
elections, taking of vehicles and premises for the purpose of elections,
procedure to question the elections, etc. We are concerned here with
Section 12-C which concerns the filing of applications questioning
the elections, since it is this provision of law, to which the appellant
herein took recourse. It reads:
“12-C. Application for questioning the elections – (1) The
election of a person as Pradhan 2 [* * *] or as member
of a Gram Panchayat including the election of a person
appointed as the Panch of the Nyaya Panchayat under
Section 43 shall not be called in question except by an
application presented to such authority within such time
and in such manner as may be prescribed on the ground
that –
(a) the election has not been a free election by reason
that the corrupt practice of bribery or undue influence has
extensively prevailed at the election, or
(b) that the result of the election has been materially
affected –
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Vijay Bahadur v. Sunil Kumar & Ors.

i- by the improper acceptance or rejection of any nomination
or;
ii- by gross failure to comply with the provisions of this Act
or the rules framed thereunder.
(2) The following shall be deemed to be corrupt practices
of bribery or undue influence for the purposes of this Act.
(A) Bribery, that is to say, any gift, offer or promise by a
candidate or by any other person with the connivance of a
candidate of any gratification of any person whomsoever,
with the object, directly, or indirectly of including –
(a) a person to stand or not to stand as, or withdraw from
being, a candidate at any election; or (b) an elector to vote
or refrain from voting at an election; or as a reward to –
i- a person for having so stood or not stood or having
withdrawn his candidature; or
ii- an elector for having voted or refrained from voting.
(B) Undue influence, that is to say, any direct or indirect
interference or attempt to interfere on the part of a candidate
or of any other person with the connivance of the candidate
with the free exercise of any electoral right; Provided that
without prejudice to the generality of the provisions of this
clause any such person as is referred to therein who –
i- threatens any candidate, or any elector, or any person in
whom a candidate or any elector is interested, with injury of
any kind including social ostracism and ex-communication
or expulsion from any caste or community; or
ii- induces or attempts to induce a candidate or an elector to
believe that he or any person in whom he is interested will
become or will be rendered an object of divine displeasure
or spiritual censure, shall be deemed to interfere with the
free exercise of the electoral right of such candidate or
elector within the meaning of this clause.
(3) This application under sub-section (1) may be presented
by any candidate at the election or any elector and shall
contain such particulars as may be prescribed.
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Explanation – Any person who filed a nomination paper at
the election whether such nomination paper was accepted
or rejected, shall be deemed to be a candidates at the
election.
(4) The authority to whom the application under sub-section
(1) is made shall in the matter of –
i- hearing of the application and the procedure to be
followed at such hearing;
ii- setting aside the election, or declaring the election to
be void or declaring the applicant to be duly elected or
any other relief that may be granted to the petitioner, have
such powers and authority as may be prescribed.
(5) Without prejudice to generality of the powers to be
prescribed under subsection (4) the rules may provide
for summary hearing and disposal of an application under
sub-section (1).
[(6) Any party aggrieved by an order of the prescribed
authority upon an application under sub-section (1) may,
within thirty days from the date of the order, apply to the
District Judge for revision of such order on any one or
more the following grounds, namely –
(a) that the prescribed authority has exercised a jurisdiction
not vested in it by law;
(b) that the prescribed authority has failed to exercise a
jurisdiction so vested;
(c) that the prescribed authority has acted in the exercise
of its jurisdiction illegally or with material irregularity.
(7) The District Judge may dispose of the application
for revision himself or may assign it for disposal to any
Additional District Judge, Civil Judge or Additional Civil
Judge under his administrative control and may recall it
from any such officer or transfer it to any other such officer.
(8) The revising authority mentioned in sub-section (7)
shall follow such procedure as may be prescribed, and
may confirm, vary or rescind the order of the prescribed
[2025] 4 S.C.R. 25

Vijay Bahadur v. Sunil Kumar & Ors.

authority or remand the case to the prescribed authority
for re-hearing and pending its decision pass such interim
orders as may appear to it to be just and convenient.
(9) The decision of the prescribed authority, subject to any
order passed by the revising authority under this section,
and every decision of the revising authority passed under
this section, shall be final.]”
13. Since the question involved in this appeal appertains to recount
of votes, let us consider the law on this aspect - as has been laid
down through various pronouncements of this Court, in the context
of various legislations.
13.1 A Constitution Bench of this Court in Hussain Kamil Kidwai
(supra), in the context of the 1962 Lok Sabha elections to
the Barabanki Constituency, wherein the appellant before this
Court had been declared elected, and the respondent who
was one of the contestants in the election, was aggrieved
and his grievance was heard and eventually allowed by the
High Court, observed that an order for inspection of ballot
papers is not to be made as a matter of course and it is only
upon the fulfillment of certain conditions that the same can
be permitted. The relevant extract is :-
“6. An order for inspection may not be granted as a
matter of course : having regard to the insistence upon
the secrecy of the ballot papers, the court would be
justified in granting an order for inspection provided
two conditions are fulfilled:
(i) that the petition for setting aside an election
contains an adequate statement of the material
facts on which the petitioner relies in support of his
case; and
(ii) the Tribunal is prima facie satisfied that in order
to decide the dispute and to do complete justice
between the parties inspection of the ballot papers
is necessary.
But an order for inspection of ballot papers cannot
be granted to support vague pleas made in the
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petition not supported by material facts or to fish
out evidence to support such pleas. The case of the
petitioner must be set out with precision supported
by averments of material facts. To establish a case
so pleaded an order for inspection may undoubtedly,
if the interests of justice require, be granted. But a
mere allegation that the petitioner suspects or believes
that there has been an improper reception, refusal
or rejection of votes will not be sufficient to support
an order for inspection.”
13.2 In Vadivelu v. Sundaram,9 a three-Judge Bench of this
Court while concerned with a dispute regarding the election
for the post of President of Vannavalkudi Village Panchayat,
Pudukkottai District in Tamil Nadu, which was governed by
the Tamil Nadu Panchayats (Elections) Rules 1995, held :
“16. …this Court has consistently taken the view that
re-count of votes could be ordered very rarely and
on specific allegation in the pleadings in the election
petition that illegality or irregularity was committed
while counting. The petitioner who seeks re-count
should allege and prove that there was improper
acceptance of invalid votes or improper rejection of
valid votes. If only the court is satisfied about the
truthfulness of the above allegation, it can order re-
count of votes. Secrecy of ballot has always been
considered sacrosanct in a democratic process of
election and it cannot be disturbed lightly by bare
allegations of illegality or irregularity in counting.
But if it is proved that purity of elections has been
tarnished and it has materially affected the result
of the election whereby the defeated candidate is
seriously prejudiced, the court can resort to re-count
of votes under such circumstances to do justice
between the parties.”

9 (2000) 8 SCC 355
[2025] 4 S.C.R. 27

Vijay Bahadur v. Sunil Kumar & Ors.

13.3 Sarkaria J., writing for the Court in Suresh Prasad Yadav v.
Jai Prakash Mishra,10 recorded three scenarios when recount
would be justified. The relevant extract of the judgment is as
under:
“6. The Court would be justified in ordering a recount
of the ballot papers only where:
(1) the election-petition contains an adequate
statement of all the material facts on which the
allegations of irregularity or illegality in counting are
founded;
(2) on the basis of evidence adduced such allegations
are prima facie established, affording a good ground
for believing that there has been a mistake in counting;
and
(3) the court trying the petition is prima facie satisfied
that the making of such an order is imperatively
necessary to decide the dispute and to do complete
and effectual justice between the parties.”
13.4 In Beli Ram Bhalaik v. Behari Lal Khachi,11 wherein the
subject matter of dispute was the election of the respondent
therein from the ‘6-Kumarsain Assembly Constituency’ of the
State of Himachal Pradesh, and so, was obviously governed
by the RPA, considered a number of precedents including
Hussain Kamil Kidwai (supra), the Court observed :
“45. ... Since an order for a re-count touches upon
the secrecy of the ballot papers, it should not be
made lightly or as a matter of course. Although no
cast-iron rule of universal application can be or has
been laid down, yet from a beadroll of the decisions
of this Court, two broad guidelines are discernible:
that the court would be justified in ordering a re-
count or permitting inspection of the ballot papers
only where (i) all the material facts on which the

10 (1975) 4 SCC 822
11 (1975) 4 SCC 417
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allegations of irregularity or illegality in counting are
founded, are pleaded adequately in the election
petition, and (ii) the Court/Tribunal trying the petition
is prima facie satisfied that the making of such an
order is imperatively necessary to decide the dispute
and to do complete and effectual justice between
the parties… “
13.5 The law mandates that secrecy of the ballot should be
maintained. In Satyanarain Dudhani v. Uday Kumar Singh,12
the Court held:
“10. It is thus obvious that neither during the counting
nor on the completion of the counting there was
any valid ground available for the recount of the
ballot papers. A cryptic application claiming recount
was made by the petitioner-respondent before the
Returning Officer. No details of any kind were given
in the said application. Not even a single instance
showing any irregularity or illegality in the counting
was brought to the notice of the Returning Officer. We
are of the view when there was no contemporaneous
evidence to show any irregularity or illegality in the
counting ordinarily, it would not be proper to order
recount on the basis of bare allegations in the election
petition. We have been taken through the pleadings in
the election petition. We are satisfied that the grounds
urged in the election petition do not justify for ordering
recount and allowing inspection of the ballot papers.
It is settled proposition of law that the secrecy of
the ballot papers cannot be permitted to be tinkered
lightly. An order of recount cannot be granted as a
matter of course. The secrecy of the ballot papers
has to be maintained and only when the High Court
is satisfied on the basis of material facts pleaded in
the petition and supported by the contemporaneous
evidence that the recount can be ordered.”

12 1993 Supp (2) SCC 82
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Vijay Bahadur v. Sunil Kumar & Ors.

13.6 In Udey Chand v. Surat Singh,13 this Court while entertaining
an appeal by special leave, from a judgment and order of the
High Court of Punjab and Haryana wherein the order of the
Election Tribunal directing recount of the votes cast in the
election for the post of Sarpanch, Gram Panchayat, Village
Badshahpur, in a petition filed under Section 176 of the Haryana
Panchayat Raj Act, 1994, observed:-
“12. The importance of maintenance of secrecy of
ballot papers and the circumstances under which
that secrecy can be breached, has been considered
by this Court in several cases. It would be trite to
state that before an Election Tribunal can permit
scrutiny of ballot papers and order re-count, two
basic requirements viz.:
(i) the election petition seeking re-count of the ballot
papers must contain an adequate statement of all the
material facts on which the allegations of irregularity
or illegality in counting are founded, and
(ii) on the basis of evidence adduced in support of
the allegations, the Tribunal must be prima facie
satisfied that in order to decide the dispute and to do
complete and effectual justice between the parties,
making of such an order is imperatively necessary,
are satisfied.”
14. Having considered the law as aforesaid, let us now consider, in
light thereof, the prayer for recount which has been allowed by the
Sub-Divisional Magistrate, but the said direction, set aside by the
High Court in view of the impugned judgment. The allegation made
is that there is a disparity in the count of votes informed to the
appellant and that finally disclosed in the official form. It relates to
19 votes, i.e., the difference between 1193 and 1213. The margin of
victory of the respondent was 37 votes, and so, in a sense, victory
of position would remain yet elusive of the appellant. However, this
Court’s concern lies away from who is in power, and instead is in
how one got to power. This process has to be in accordance with

13 (2009) 10 SCC 170
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constitutional principles and established norms - if not, then such a
person has to be deprived of the power, and the decision-making
by the people must begin once more.
15. When the officer was present there and he informed the candidate,
appellant herein, of the number of votes cast, why should there be
any difference? We have already observed that each vote has its
own value irrespective of its effect in the final outcome of the election.
Its sanctity has to be protected. It was a four-sided election, i.e.,
four persons were contesting for the post of ‘Pradhan’. Three of
the four persons submitted by way of affidavit that they had doubts
regarding the propriety of the election, and they would support a
recount of votes.
16. It has also come on record that deliberate attempts have been
made to benefit the ultimate victor such as the use of police force to
remove the appellant from the vicinity of the polling area. The diary
of the Presiding Officer of the polling booths, which is an essential
document recording the casting of votes, could not be found despite
a concerted effort.
17. The candidates in the election wanting to keep an eye on voting during
the day and inspect records of the same is something which cannot
be denied to them. If the Presiding Officers’ records are missing and
cannot be verified, it can be found that the final conclusion is within
the realm of questionability. Each and every document pertaining to
an election is important and all efforts should be made to preserve
the same.
18. The election in question took place in the year 2021 and the process
of law has culminated by way of this judgment, four years later. For
the reasons aforesaid, that three of the four candidates question the
veracity of the election and the manner in which it was conducted,
and that important documents pertaining to the election are missing
and such absence is unexplained, we are of the view in the present
facts that a recount would be justified.
19. The judgment of the High Court passed in Writ-C No.35734 of 2022
titled Sunil Kumar v. State of U.P. And Ors. dated 27th January 2023
is, therefore, set aside and order dated 31st October 2022 passed
by the Sub-Divisional Magistrate in Election Petition No.02010/2021,
is restored. The appeal is allowed.
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Vijay Bahadur v. Sunil Kumar & Ors.

20. Registry is directed to communicate a copy of this judgment to the
Registrar General, High Court of Judicature at Allahabad, who shall
ensure passage of the same to the concerned Magistrate, enabling
them to set a date for recount of the result after hearing the parties.
Pending application(s), if any, shall stand disposed of.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Ankit Gyan