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Jagannath Rao v. Raj Kishore And Others
Factual and Procedural Background
The appeal was filed under Section 116-A of the Representation of the People Act, 1951 by the returned candidate whose election to the U.P. Legislative Assembly from the Mariahu constituency had been set aside by the Allahabad High Court. Polling was held on 5 February 1969 and counting on 10 February 1969, when the appellant was declared elected with 25,552 votes against the respondent’s 25,483—a margin of 69 votes.
The respondent’s request for a recount was refused by the Returning Officer. Both parties subsequently inspected the ballot papers (21–24 March 1969) and the respondent filed an election petition on 27 March 1969 alleging mis-counting and inclusion of invalid votes in the appellant’s tally. The appellant filed a recrimination petition making mirror-image allegations against the respondent.
During the High Court proceedings, the trial judge allowed a fresh inspection and sorting of ballot papers. On 30 October 1969 the appellant’s counsel noticed that Box 3 and several envelopes inside it appeared to have been opened and resealed improperly. Allegations of tampering, said to involve a court staff member, followed. Although the trial judge accepted evidence pointing to tampering, he nevertheless proceeded to re-evaluate selected ballot papers and ultimately set aside the election. The present judgment reviews that decision.
Legal Issues Presented
- Whether the ballot papers were tampered with while in the custody of the High Court, thereby vitiating the reliability of any recount undertaken by the trial court.
- In the face of suspected tampering, whether the High Court was justified in re-counting selected ballot papers and setting aside the election result, or whether the original count by the Returning Officer should be presumed correct.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jabar Singh v. Genda Lal, (1964) 6 SCR 54; AIR 1964 SC 1200 | There is a prima facie presumption in favour of the validity of ballot papers accepted or rejected by the Returning Officer. | The Court relied on this presumption to hold that, once tampering was suspected, the Returning Officer’s original count must prevail and the High Court should not have undertaken a selective recount. |
Court's Reasoning and Analysis
1. Findings on Tampering: The Supreme Court reviewed the trial judge’s own acceptance of evidence from the appellant’s counsel, Shri Misra, showing that Box 3 was unlocked and that envelopes containing previously inspected ballot papers were open, unsealed, and unpasted. The trial court had acknowledged that at least 88 ballot papers showed signs of alteration—such as additional or different seals, inconsistent ink, and varying stamp sizes.
2. Critique of the Trial Court’s Approach: Despite acknowledging tampering, the trial judge tried to determine which candidate each suspect ballot favoured by applying Rule 56(2) proviso of the Conduct of Election Rules, 1961—a provision the Supreme Court held irrelevant because it does not address tampered ballots. Proceeding with a selective scrutiny after evidence of large-scale interference was deemed “a dangerous course.”
3. Scope of Examination: The trial judge focused only on 268 ballot papers listed in a schedule attached to the appellant’s 10 December 1969 application, mistakenly believing they were all the tampered ballots. The Supreme Court noted that not all ballots from Box 3 were examined, so further tampering could not be ruled out.
4. Presumption in Favour of the Original Count: Citing Jabar Singh, the Court emphasised the presumption that the Returning Officer’s count is correct unless conclusively disproved. Where tampering has occurred after the count—and not at the Returning Officer’s stage—any subsequent recount is unreliable.
5. No Attribution to the Appellant: The Court observed that no party claimed the tampering was done for the appellant’s benefit; hence, there was no basis to penalise him by disturbing the election result.
6. Conclusion on Merits: Because the integrity of the ballot papers had been compromised while in court custody, the High Court should have refrained from altering the election result and should have dismissed the petition.
Holding and Implications
APPEAL ALLOWED; ELECTION PETITION DISMISSED. The Supreme Court set aside the High Court’s order and restored the appellant’s election. The election petitioner (respondent) was directed to pay the appellant’s costs in both the Supreme Court and the High Court.
Implications are confined to the parties: the appellant retains his legislative seat, and costs follow the event. The decision reinforces the presumption of validity of the Returning Officer’s count and serves as a caution against relying on ballot papers once their integrity is compromised; it does not lay down a new substantive precedent.
K.S Hegde, J.— This is an appeal under Section 116-A of the Representation of the People Act, 1951 (in short “the Act”) brought by the returned candidate whose election from the Mariahu constituency in the district of Jaunpur, in the last mid-term election to the U.P Legislative Assembly has been set aside by the High Court of Allahabad in an election petition brought by the first respondent in this appeal, who will hereinafter be referred to as “the respondent”.
2. The appellant, the respondent and five others contested from the Mariahu constituency in the last mid-term election. Polling took place on February 5, 1969. The votes were counted on February 10, 1969 and the result was declared on the same day. The Returning Officer declared the appellant to be the successful candidate as having secured 25,552 votes as against 25,483 secured by the respondent, his nearest rival. Margin of difference between the two was 69 votes. After the counting was over, the respondent asked for recounting but that was not granted by the Returning Officer. Thereafter the respondent applied to the Election Commission for inspection of the ballot papers. Inspection asked for was granted and the ballot papers were inspected both by the appellant and the respondent for four days i.e between 21st and 24th of March 1969. The election petition was filed on March 27, 1969.
3. In the election petition the respondent contended that some invalid votes, some votes cast in his favour and some votes cast in favour of other candidates had been counted in favour of the appellant. The appellant denied all these allegations. In his turn he filed a recrimination petition wherein he also contended that some invalid votes, some votes cast in his favour and some votes cast in favour of other candidates had been counted in favour of the respondent.
4. During the pendency of the election petition both the appellant as well as the respondent applied for re-inspection of the ballot papers. It is unfortunate that the learned trial Judge allowed those petitions. This led to serious developments as we shall presently see. There was no occasion for allowing re-inspection of ballot papers as the parties had already inspected the ballot papers. On September 15, 1969, the Court ordered sorting out of the alleged ballot papers, either by the appellant or the respondent, as having been wrongly accepted or counted. The sorting out process went on till November 17, 1969. Meanwhile on September 22, 1969 the appellant applied for re-inspection of the ballot papers. A similar prayer was made by the respondent on September 26, 1969. As mentioned earlier those prayers were granted. The inspection of the ballot papers continued simultaneously with the sorting out of the ballot papers referred to earlier and it went on till October 30, 1969. On October 30, 1969, it is alleged that during the inspection, the counsel for the appellant noticed certain facts from which he concluded that the ballot papers might have been tampered with. Procedure adopted at the time of inspection was that the advocates on either side inspected each ballot paper and the inspected ballot papers were put in different covers; those covers were closed and sealed and the label thereon was signed both by the appellant's counsel as well as by the respondent's counsel and at the close of the day those packets were put inside a box which was locked and sealed. According to the appellant on October 30, 1969, his Counsel, Shri Misra, noticed that the seal on the lock of Box 3 was missing and that the lock was open. Thereafter when the box was opened, it was found that the envelopes inside the box had been opened and their seals were missing. Their flaps remained unpasted and the labels that were attached on them were all missing. The same day, he made the following remarks in the daily sheet maintained by the staff:
“Attended inspection table by 10.30 a.m Staff could come at 11 a.m but the work started by 12.15 Inspection of only tendered BPs (meaning ballot papers) was allowed. No effort for searching out postal B.P was made by the Staff. In the course of taking out bundle of tendered votes it was detected that packets of sorted out B.P (whose sorting has finished) are kept in unsealed envelopes and Box 3 was found unlocked with distorted seal. PS Inspection was finished by 4.00 p.m”
In the same sheet respondent's son who represented the respondent at the inspection made the following remarks:
“Inspection finished at 3.00 p.m After that the envelopes were sealed in my presence. Seal of Trunk No. 3 was intact, but the lock was loose.”
5. On the next day, the appellant filed an application before the Court alleging that there are reasons to suspect that the ballot papers had been tampered with. He asked for a re-inspection of the ballot papers that had already been inspected but that prayer was rejected by the Court. Before proceeding to narrate the other facts, it is necessary to mention one other circumstance. It appears that at the time of the inspection of the ballot papers, both the parties or their counsel as well as the staff of the Court were noting down the numbers of the ballot papers to which objections were taken by either of the parties. According to the appellant, the sheets maintained by the office were also tampered with. On examination of those sheets, it was found that they contained 268 more numbers than those found in register maintained on his behalf. He brought those facts to the notice of the Court by an application made on December 10, 1969 and to that application he attached a schedule showing the numbers of ballot papers which according to him were subsequently interpolated into the sheets maintained by the office.
6. The appellant's allegation was that the tampering of ballot papers was done by one Gopinath, a member of the staff of the High Court.
7. Dealing with the evidence of Sri Misra relating to the alleged tampering with the lock of Box 3 as well as the envelopes inside that box, this is what the learned trial Judge observed:
“Box 3 whose lock was noticed by him to be open, was in the middle of the pile and it was removed first. In view of the above statement it could be argued that the lock of Box 3 might have been opened and the sealed paper on it might have fallen off. But no positive conclusion can be drawn from the above circumstances because there are two facts which negative it. In the first place, Sri Shivaji Misra, who was actually removing the boxes, stated that it was not possible that the seal got broken and the lock was opened in dragging and removing the boxes, from one place to another. His statement finds some support from the note Ex. D-158/2 made by the son of the petitioner who seems to have made it in a guarded language. The lock having been loose in that note can be taken to imply that it was open. The second circumstance is the discovery of envelopes containing sorted out ballot papers inside that box not to be sealed and their flaps also not pasted. The statement of Sri Shivaji Misra remained unshaken on this point. In my opinion, therefore, it cannot be doubted that the envelopes containing the sorted out ballot papers inside Box 3 were found in open envelopes which were unsealed and whose flaps had also not been pasted. Sri Shivaji Misra further stated that all the boxes containing the ballot papers of this case were got opened and it was found that in all of them the sorted out ballot papers were kept in open envelopes which were new without their flaps either pasted or seals having been put on them or the signatures of the counsel for the respondent on them. On behalf of the petitioner it was urged that this part of his statement was an improvement and should not be believed because in his note Ex. D-158 Sri Shivaji Misra had said this about Box 3 alone. The contention of the petitioner's counsel in this regard must prevail because the allegations in the note Ex. D-158 are confined to Box 3 alone. Not only that, Sri Shivaji Misra himself admitted at two places on pp. 17 and 20 of his cross-examination that the seals and locks of the other boxes were found intact. Therefore the allegations will have to be confined to Box 3 alone. To my mind, the circumstances given by Sri Shivaji Misra were sufficient to raise a suspicion that there had been intermeddling with Box 3 and its contents.”
8. From these observations it is clear that the learned Judge accepted the evidence of Sri Misra relating to the condition of the lock put on Box 3 as well as the envelopes that were inside that box when he saw them on October 30, 1969. Sri Misra's evidence which was accepted by the learned trial Judge clearly indicates the possibility of tampering of the ballot papers inside Box 3. But curiously enough even after accepting the evidence of Sri Misra, the learned Judge came to the conclusion that there was no conclusive proof to show that the ballot papers were tampered with in the High Court. We shall presently see that the learned Judge came to the conclusion that several ballot papers had been tampered with. But his hypothesis is that they might have been tampered with in the District Electoral Office and there might have been only an attempt at tampering in the High Court. His reasoning on this question is difficult to follow.
9. The learned Judge after scrutinizing some of the ballot papers but not all of them, observed:
“While examining them I noticed that some appeared to be suspicious and looked as if they had been tampered with. There was a clear seal with the instrument provided in the compartment of Respondent 1, but another seal was also to be found in the compartment of some other candidate. In some, the ink of the seal in the compartments of other candidates was watery and had spread and was fainter than that of the seal in the compartment of Respondent 1. Such ballot papers were also found in Schedule I-A of the amendment application of the recriminatory petition. In some, the colour of the ink in the compartments of other candidates was different in colour than that of the seal in the compartment of Respondent 1. In some, the size of the seal in the compartments of candidate was either smaller or bigger than the size of the seal in the compartment of Respondent 1. In some, not only the ink of the seal put in the compartments of other candidates was fainter than that of the seal in the compartment of Respondent 1, but the seal was also different in form. All that goes to point that some ballot papers had been tampered with in which the above condition of the seal and ink was found.”
10. From these findings, it is reasonable to conclude that the ballot papers had been tampered with, in the High Court at the time of the inspection. It is strange that even after coming to the conclusion that ballot papers had been tampered with, the learned Judge thought that he could find out in whose favour each of the tampered ballot paper had been cast. In attempting to do so, he was clearly undertaking a risky job. His reliance on the directions given in the second proviso to Rule 56(2) of the Conduct of Election Rules, 1961 to the Returning Officers was misconceived. The said rule does not deal with tampered ballot papers. The learned Judge, in our opinion, adopted a dangerous course. Once he came to the conclusion that there was tampering with the ballot papers he should have thought that there was no use in further inspecting the ballot papers to find out whether they were properly accepted or counted. In the course of his judgment, the learned Judge came to the conclusion that out of the ballot papers examined by him, he detected that 88 ballot papers had been tampered with. We have earlier mentioned that he had examined only some of the ballot papers and not all. Therefore the possibility of many more ballot papers having been tampered with cannot be ruled out.
11. The learned trial Judge fell into an error in thinking that in the schedule attached to the petition filed on behalf of the appellant on December 10, 1969, the respondent had mentioned the numbers of the tampered ballot papers. Because of this erroneous impression, he appears to have focussed his attention only on those ballot papers and not others. He does not say anywhere in his judgment that he scrutinised all the ballot papers found in Box 3. It is clear from his judgment that he merely scrutinized the 268 ballot papers mentioned in the schedule mentioned earlier. A reading of the petition to which that schedule was attached makes it clear that the ballot papers mentioned therein do not refer to the tampered ballot papers. In fact, the appellant or his counsel could not have found out at the time that the schedule was filed into Court, which all ballot papers had been tampered with. After October 30, 1969 they were not permitted to re-examine the ballot papers that had already been examined.
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 that the tampering in question was done in the High Court during the time of the examination of the ballot papers. It is 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 presumed to be correct. As held by this Court in Jabar Singh v. Genda Lal (1964) 6 SCR 54, AIR 1964 SC 1200 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.
13. In the result this appeal is allowed and the order of the High Court is set aside, consequently the election petition stands dismissed. The election petitioner shall pay the costs of the appellant both in this Court and in the High Court.
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