Holding

The petition satisfied the concise‑statement requirement, the inspection of the 74 ballot papers was proper, the proviso to Rule 56(2) barred their rejection, and in the absence of a recrimination petition the appellant could not challenge the respondent's claim, so the appeal was dismissed.

Summary

In the 1980 Bihar Legislative Assembly election, the appellant Arun Kumar Bose was declared elected by a margin of 24 votes over respondent No.1, Mohd. Furkan Ansari. The respondent filed an election petition under s.81 of the Representation of the People Act, alleging that 74 ballot papers were wrongly rejected because they lacked the presiding officer's signature, and sought to have the appellant's election set aside and be declared elected. The High Court held that the petition satisfied the concise‑statement requirement of s.83, ordered inspection of the 74 papers, and, applying the proviso to Rule 56(2) of the Conduct of Election Rules, concluded that the papers should not have been rejected, thereby declaring the respondent elected. On appeal, the Supreme Court affirmed that the pleading was adequate, the inspection was proper, the failure of the presiding officer triggered the proviso, and, because no recrimination petition under s.97 was filed, the appellant could not challenge the alternative claim. Consequently, the appeal was dismissed and the High Court's order upheld.

Issues considered

The election petition must contain a concise statement of material facts as required by s.83(1)(a) of the Representation of the People Act.
Whether the High Court was justified in ordering inspection of the 74 ballot papers.
Whether the proviso to Rule 56(2) of the Conduct of Election Rules applies when the presiding officer fails to sign ballot papers.
Whether the appellant can contest the respondent's claim without filing a recrimination petition under s.97.
The scope of recount under s.100(1)(d)(iii) when only specific ballot papers are alleged to be wrongly rejected.

Legislation cited

Conduct of Election Rules, 1961s. Rule 38(1), s. Rule 56(2)
Representation of the People Act, 1951s. 100, s. 101, s. 116A, s. 81, s. 83, s. 94, s. 97

Subjects

election petitionconcise statement of material factsballot paper rejectionpresiding officer signatureConduct of Election RulesrecriminationrecountRepresentation of the People Act

Judgment

ARUN KUMAR BOSE
A
v

MOHD. FURKAN ANSARI & OTHERS

September 28, 1983
B
[AMARENDRA NATH SEN AND RANGANATH MISRA; JJ.j

Representation of the People Act. 195/.'-Sec. 81 read with sec. 83(l)(a)-
E/ectlon Petiti'on to contain concise~statement offacts-Scope of. Sec. 97-When
c app/iccible-Recrimination ptoceedings-Necessity of making recriinination when
additional relief .
. under sec. JOI claimed.

Conduct of Election Rules, 1961-Rule 38(1) read wiih rule 56(2)--
lnterpretation. of-Proviso to rule 56(2) ·when applicable. Presiding officer
absent from /,!ace of poll-Did not sign ballo't, papers- ~Vhether constitutes
failure to Sign ballot papers.
D
• respondent who Jost to the appellant by 24 votes in the
The first
Assembly Elections filfd an election petition in the High Court under s.- 81
. of the Rep._resentatiOn of the People Act, 1951 asking for the appellant's election
to be set aside and for declaration that he shouJ~ be declared as the successful
candidate. In para.9(i) of the petition the respondent pleaded that 74 ballot
E papers cast in his favour were wrongly rejected on the_ ground that they did not
contain the signature of the Presiding Officer. The High Court ordered inspe-
ction of these ballot papers. The High Court held, that the rejection of these
74 ballot papers'for want of the Presiding, Olficer's signature was not justified
and gave' the respondent No. 1 credit of all .those Votes and on that basiS .
while setting aside the election of the appellant, declared the first respondent
· · to ha-Ve bee~ duly elected. Hence this appeal. The appellant urged that
F : the ple3:aing in para 9(i) of the Election Petition did not amount to a concise
staterqent of the material facts as required by·Jaw; the High Court· went wrong
in allowing inspection of the biillot papers; the 74 ballot papers in dispute did
not contain the signature of.the presiding officCr and· were right1y rejected at
· the·counting in view of the mandatory proVision in rule 56(2) of the Conduct
of Elections Rules, 1961 and the High Court's view that in the absence of a
G · prayer for recrimination under s. 97 of·the Act, 'the appellant was precluded
from asking for a recount of the other rejected ballot papers is not !enable in
law.

Dismissing the appeal,

H -HELD : An election petition is presented in tertns of s. 81 of the Act.
Sectfoll 83 prescrib~ as to what the Petition sho~ld contain. Clause (a) ot
sub-s. (1) of s. 83 ·states that an etection petition shall contain a concise
·statement of the material facts on which the petitioner relies. In the insta,nt
A.It. lloSB
. v. M.F. ANSARi .
t:ase the number of ballot papers alleged to have been wrongly rejected has
been furnished, the counting table number has been given, the booth number
has also been disclosed~and the ground for rejection has even been pleaded.
The only specific detail which ·was-wanting was the serial number of the ballot
pap~rs. , This particular-was not available to the election petitioner in spite of
attempts made on his behalf. The Court, therefore, agrees with the High Court
that in-the facts and circun1stances of the case- the pleading in paragraph 9(i)
set out the material facts in a proper way and no defect can be,...found with it.
The High Court had rightly ordered the inspection of the ballot papers. B
[126 B-C; H; 127 A; 128 _F-G; 127 F]

Samaftt N. BalakriShan etc.; v. George Fernandez and Ors. etc., [1969] 3
S.C.R. 603 explained and distinguished,

Bhabh; v. Sheo Govind and Ors., [1975} Suppl. S.C.R. 202, referred to. c
Rule.38(1) of the Conduct of Election Rules, 1961 provides inter alia
th'at every ballot paper before i~ .is issued to an elector shall be stamped on the
back with a distiaguishing' 1nark and shall be signed in full On its back by the
presiding officer. The disiinguishing mark ·can be put by anyone but the
signature has got to be of tr.-e p'residing officer and obviously, he has to D
personally do that job. Rule 56{2)(h) provides that the relurning officer
shall rejcet a· ballot paper if it does not bear both the fdisti~guishing mark and
the signature as mentioned in sub-rule (1) of rule 38. There is a proviso to
sub-rule (2) of rule 56 which says that when: the returning officer is satisfied.
that any such defect as i§ mentioned iri clause (h) has been caused by any
mistake or failure on the part of a presiding officer or polling otlicer, the ballot
paper shall not be~rejected merely on the ground of such defect. The proviso, E
once it is applicable' is a mandate that the ballot paper is not to be rejected.
[129F-G;'130 G; 129 E-F; 130 E; 131 HJ

. In the)nstant case the 74 ballot papers in dispute were rejected because
they did not contain the signature of the presiding officer as required undCr
rule "38(1). Tu see whether the proviso to sub-rule' (2) of rule 56 was applicable; ll'
it has to be found out whether the absence of the signature of the presiding ,
officer on these ballot papers was on .. account of mistake or of his failure.
On the submissions at the bar, the qu.estion ·or ~mistake does not arise.· It"was ',.,
.... the obligation of the presiding officer to put his signature on the ballot papers
, before they were issued to the voters. Every voter has the right to vote and in
·the democratic set up .Prevailing in the country no person entitled to share the G
franchise can be denied the privilege. Nor can the candidate 1'e made to'
suffrr. Keeping thiS" po~ition in view the Court is of the definite view that the
present case is one of the failure on the part of the presiding officer, who had
beeJ;I taken ill on the date of poll and was away frorll _)he place of polline for
quite ~ome timl(, to put his signature on -those ballot papers so as to satisfy the
·requirement of law. The ballot papers therefore were not liable to be rejected H
as the proviso applied and the High Collrt came to the correct conclusion in
counting these ballot papers and. gi'l,'.ing credit thereof to the respondent
No. !. (130 C; F-G; Bi F-H;- 130 H; 131 E; H; 132 Af
120 SUPREME COURT RJlPORTS (19S4J i s.c.~.
In a case in which the election petition claims· that the election of the
A returned c.andidate is vpid, and also asks for a declaratiOn that the petitioner
himself or some other person has been duly elected,, s. 100 as well as s. 101 of
the Act ,,would apply, and it is in respect Qf the additional claim for such
declaration that s. 97. comes into play. Section 97(1) thus allows the
returned - candidate to~ recriminate and raise pleas in support of hiS case
that the other person in who~e favour a declaration is claimed by the
petition ca~n~t be said to be validit~ elected~ an~ these would be ple~s of
B attack and 1t would be open to the "I'eturned ·candidate to take these pleas,
because· when he recriminates, he really becomes a counter·petitioner challeng-
ing the validity of the election of the alternative candidate. The result of
-s. 97(1) therefOre. is that in dealing with a composite election petition, the
Tribunal enquires into not only the case made out by the petitioner, but also
the counier·claim made by the returned candidate ..'That. being the nature of
the proceedings contemplated bys. 97(1), it is not surprising that the returned
c candidate is required to make his recrimination and serve notice in that behalf
in the manner and within the time specified by .S; 97(1) proviso ands. 97(2).
If'the returned candidate does Ilot recriminate as required by s. 97, then he
c3.nnot make any attack against the alternative·ctaim made by the petition. .
[1_3; A:FJ

,, D Kum. Shradha Devi v. Krishna Chandra Pant & Ors., [1982] 3 S.C.C. 38!µ,
Jabar Singh v. Genda Lal, [1964] 6 S.C.R. 5'1- and P. Ma/aichami v. M· Andi:-.
Ambalam & Ors. [1973] 3 S.C.R.'1016 referred to.. . .'
'
In the instant election petition two reliefs· had been claimed, firs'tly, for
setting aside the election of the returned candidate, _i.e. the appellant, and
secondly, for a declaration that the election petitioner (respondent No. I) was
E . the' duly elected candidate. The relief claimed was in terms of s. 100(1) (d) (iii)
ands. lOl(a) of the Act. Admittedly no application for fecrimlnation was
filed by the 'appellant. In the absence of a recrimination petition conforming
to the. requirement of section 97 of the Act the appellant who happens to be an
advocate and is presumed to know the law, was not entitled to combat the
claim of the election petitioner ori the ground that if the remaining rejected
ballot papers had been counted the election petitioner would not have been
found to have polled the majority.ofthe valid votes. [132 D-E; 133A;138 C.DJ°

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2618 of
1983.
G , .
From the Judgment and·Order dated the 18th January, 1983
of the Patna High Court in Election Petition No. 15 of 1980. '

S. Rangarajan,. D. P. Mukherjee, G. S. Chatterjee -and R. P,
ff' Singh for the Appellant .

.s. S. Ray, M. P. !ha and Ms. Mridula Rap for the
Respondents.
-'
A.k. hoSB v. M.F. ANSARI (Ranganath Misra, J.) 121

The Judgment of the .Court was delivered by
A
RANGANATH MISRA, J. This appeal under section I'I.6A of the
Representation of the People Act, 1951 ('Act'. for short), is directed
~gains! the decision of the High Court at Patna setting aside the
appellant's election to the Bihar Legislative Assembly from 115
Jamtara Assembly Constituency poiling for which was held on May
B
31, 1980, and the result of .which was declared on June 2, 1980:
Sixteen candidates being the appellant and the 15 respondents con•
tested the election. The appellant' was the candidate of the Com-
munist Party of India and resp!>ndent No. 1 was of the Congress (I)
Party. At the poll the appellant received 13336 votes while the
respondent No. 1 polled 13312 votes. The- appellant was, therefore, c
declared elected on the footing that he had received 24 more votes
than the respondent no. I. Respondent no, . 2 ·had polled 13285
votes. As the election dispute has been confined to the appellant
and respondent no. 1 it~s not necessary_ to refer to the other candi•
dates or indicate particulars df their performance at the election.
Re;pondent No. 1 filed an election petition under s. 81 of the Act D
asking for the appellant's election to be set aside and for a declara•
lion 'that' he, should be declared as the successful candidate. In
paragraph 9 of the election petition he pleaded the details of the
illegalities-and irregularities committed in the course of counting of
ballot papers. It is not necessary to refer to the other details excep- E
ting what was pleaded in paragraph 9(i) as respondent no. 1 did not
press the electio.n petition on those grounds. The pleading in the
. sul?-paragraph was to the following effect.

"On table No. IO booth No. 10 (Fukbandi Primary
School) 74 hallo! papers of the petitioner were wrongly F
rejected on the ground that they did not contain ·the
signature of ihe .Presiding Officer. Similarly 31 ballot
papers of the petitioner were rejected on different tables
on the ground that they do not contain the signature of
the Presiding Officer. The aforesaid ballot papers were G
reject~d by the Assistant Returning Officer inspite of
the objections raised by the petitioner and his counting .
agents."

It is appropriate to indicate here that the High Court did not H
take into account the plea in regard to 31 ballot papers ·in the
absence of particulars. The appellant in his written statement
SUi'il.JiME CotlRT REPoRTs (I9i4 J i s.c.il..
before the f!igh Court pleaded that the· statements C<;mtained in 'r
paragraph 9 and its sub.paragraphs were vague and incorrect. In
· paragraph 16 of tbe written statement it was stated :
.Iii
"During course of counting no illegality or irregu-
larity of any kind was committed; rather the same was
B held in proper, legal and orderly manner, nor any such ~·
imaginary illegality was pointed out or any objection was
raised on behalf of tbe petitioner." .

In paragraph 17 it was further pleaded that "the statement contained
in paragraph N~,.9(i) of the election petition is wrong: It is false
c to say that the ballot papers were rejected only on the ground of
want of signature of the· Presiding Officer. The fact is. that the
. Assistant Returning Officer, who was duly appointed, after fully
applying his mind and finding nearly 95 .ballot papers of booth
·no. 10 to be spurious and not.genuine and after giving cogent, legal
D
and satisfactory -reasons, rejected the ballot papers. The petitioner
has suppressed the fact that besides his 74, 31 ballot papers of other
contesting candidates including 3 of the respondent no. 1 were also
rejected for not· bearing signature of the Presiding Officer and the
distin.guishing mark of the polling.station No: !O."

In paragraph 18 bf the' written statement the appellant pleaded
that . ,

"'With reference to the contents of paragraph no.
9(i) of the Election Petition, the r.espondent ·no. 1 further
F begs to submit that counting of ballot -papers of booth
no. JO was completed before 12 noon'in the viory first
round and the petitioner secured 3160 votes in that round
while the respondent' no. 1. could get only 484 and one
Parmanand Mishra got 1172 votes.· _Neither the peti·
G tioner nor •his election agents· ~or· counting agents, alJ
of whom were present in the counting hall, did raise any .
objection at the time of rejection of the ballot papers or
, for the whole day rather they accepted the position that
' those ballot papers were rightly rejected being spurious
'and not genuine. However, after announcement of the
H . votes of last round and conclusion of 'counting of the
votes and completion and submission of result sheet in
Form 20 by the Assistant Returning Officer to the Re,
A.It !i6SE v. M.F. ANSARI (Ranganath Misra,'J.) 12~
; '
. -· ' .
turning Officer, the petitioner.having Jost the election by
a small margin Jost all his senses and like a drowning A
man catching ihe iast straw, made out a false case of
illegality in counting and thus on 2.6.1980 at 1.50 a.m.
• · for the first time raised an objection by .filing a petition
. which was frivolous in nature to count the rejected ballot
, · papers in his 'favour''. -
B
After the evidence of both parties had been recorded, on
February 19, 1982, the learned trial Judge ·made the following
order:-

"Having considered ihe arguments' of learned coun· c
sel for the parties and the materials on. the record and
in view of the decisions referred to above, I am satisfied
that the petitioner in Jiis ~lection petition has given
adequate statements of material fasts on which he relies
in support of his case and ha~ made out prima facie case D
for inspection of the ballot papers which have been cast
in his favour and rejected. Without . expressing any..
opinion regardin,g the. merit of the claim of the parties,
I am of the view that in order to decide the dispute and
to do justice between the parties inspection of ballot
papers is necessary. I, therefore, difect that all those E
·ballot papers which have been .cast in favour of the peti-
tioner and rejected by the Returning Officer at the time
of counting, i.e. 74 of Fukbandi Booth No, JO and 31 of
other booths, ·should be inspected by -learned counsel
for the parties in· presence of a responsible officer of the .
Court." F

.. _The appellant sought to challenge this order by moving an
application under Article 136 of the Constitution before this Court
·but that was r'jected. Ou April 14, 1982, the learned trial Judge
on a petition of the appellant for clarification of the order dated G
February 19, 1982, made the' following direction :

. "In my opinion, there is no ambiguity in the order
passed"by this Court on 19.2'.82, yet .objection has been
raised for which there is .no basis. However, learned H
ccinnsel for the petitioner has submitted that he would
be quite satisfied if only 74 rejected ballot papers from
•
1~4 SUPREME COURT REPORTS · t1984J .i 's.c.a.
·'
booth No. 10 Fukbandi booth are inspected. Let ins•
pection of only 74 rejected 6al!ot papers from Booth No.·
'to Fukbandi booth be.made."

The learned trial Judge after inspection of the ballot papers and
upon hearing counsel for ,the parties, came to hold that the rejection
B of these 74 ballot papers for want of the Presiding Officer's signa-
ture was not justified and gave the election petitioner credit of all
those votes. On that basis he came to hold that the respondent ·
··no. 1 had received the majority of the valid votes polled at the
. eiection (the excess being 50) antl while. setting aside the election of
, the appellant, declared the respondent no. 1 to have been duly
c elected. This decision is assailed in-appeal.

Mr. Rangarajan in support of the appeal has taken the stand
that: (i) the ·particulars furnished in paragraph 9 of the election
petition were inadequate and fall short of the requirements of the
D law; (ii) inspection of.the ballot papers should not have been granted
and even on illspection, the 74 ballot papers were not available to
be counted in favour of respondent no. l; (iii) If' inspec.tion was to·
be granted and credit was to be given of rejected ballot papers, all
·the 954 ballot papers should have been scr~tinised and the exami-
nation for recount should not have been confined to 74 only; and
E
(iv) the view taken by the learned trial. judge of the High Court that
. in the absence of a prayer for recrimination under s. 97 of the Act,
thr appellant was precluded from .asking. for a recount of the other
rejected ballot papers is not tenable in law ..

Before entering into an examination of the tenability of these
contentions, it would be proper to take note of the decision in the
case of Jagan.Nath v. Jaswant Singh & Ors.('), of a five Judge Bench
of this Court. Mahajan, C.J. spoke for the Court thus :

G "The general rule, is well settled that the statutory
. requirements of election law must be strictly' observed.
and that an election .contest is not an action at law or a
_ suit in equity but is a purely statutory proceeding un•
known to the common law and ·that the Court P.Ossesses
H no cmµmon law power." ·

(I) [1954] S.C;R, 892.
A.K. BOSE v: M.F. ANSARI (Ranganath Misra, J.) 125

What was said in Jagan Nath's case continues to be the law binding
this Court and in the recent case of Jyoti Basu & Ors. v. Debi A
Ghosa/ & Ors( 1), this Court rniterated the position by saying :

"A right to elect, fundamental though it is to demo•
cracy, ·is, anomalously enough, neither a fundamental
right nor a Common Law Right. It is pure and simple, B
. a statutory right. -So is the right to be elected. So is
the right ·to dispute an eleetion. Outside \of statute,
there is no right to elect, no right to be elected and no
right to dispute an election. . Statutory creations they ·
are, and therefore, subject to statutory limitation. An
---'- election petition is· not an action at Common Law, nor
c
in equity. It is a statutory. proceeding to which neither
the common law nor the principles of equity apply but ' I
only those rules which the statute makes .and applies.
It is a special jurisdiction, and a special jurisdiction has
... always to be exercised in accordance with the statute D
creating it. Concepts familiar to Common Law and
Equity must . remain strangers to Election Law unless
statutorily embodied. A Court has no right to resor~
to them on considerations of alleged policy because
policy in stich matters, as those, relating to the trial of
election disputes, is what the .statute lays down. In the E
trial of election disputes, Court is put in a straight
jacket. Thus the entire election process commencing
from the issuance of the no~ification calling upon a
constituency to elect a member or members right up to
the final resolution of the dispute, if any, concerning the F
election is regulated. by the Representation of the People
Act, 1951, different stages·of the process being dealt with
by different provisions of the Act. There can be no
election to Parliament or the State Legislature except as
provided by the Representation of the People Act, 1951,
and again, no such election may be questioned except in G
the inanner. provide"d by the Representation of the People .
0
Act. So the Representation of the People Act has been
held to be a complete and self-contained code within
· which must be found any right claimed in relation to an
election or an election dispute," H

(ll 119sz1 3 s.c.R~ 31s.
126 SUPREME COURT REPORTS (1984) 1 S.C.ll.
'• ' 0

We are bound by the decision of the larger Bench and we are in
A agreement with what has been said in Jyoii Bas~'s case.

The ·first question to consider is; whether the pleading in
paragraph 9(i) of the election .-petition was adequate in view of the
provisions of the Act. Section 94 of the Act provides for secrecy
B of voting. Detailed provisions.have been made· in the .Conduct of
Election Rules, 1961, to give effe~i to this wholesome provision
contained in s. 94. An election petition is presented in terms ·Of ·
s. 81 of the Act. Section 83 prescribes ·as to what the petition
should contain. Sub-section (I) (al. of s. 83 states t~at an election
petition shall contain a concise statement of the material facts on
·c · whlch the petitioner relies. Since there is no allegation of any
corrupt practice. in this case there is no necessity to refer to clause
.(b) of sub-s. (!) of s. 83. Though initially Mr. Rangarajan had
contended that the verification was not in accordance with.)aw, he
has abondoned this contention during .the hearing in view of the
·,
D statutory form of verification prescribed and the verification in the
instant case conforms to it. According to Mr. Rangarajan the .
pleading in paragraph 9(i) does not amount to a concise statement ·
of the material facts. Aprellant's learned counsel has placed reli-
ance on the observation in Samant N. Balakrishna etc. v. George
Fernandez & Ors. etc(')., where, with reference to s. 83 of the Act it
.E ~Kas been said that the petition must contain a concise statement of
the material facts on which the petitioner· relies and the fullest
possible particulars should be given. Material facts .and material
·particulars . may_ overlap. Balakrishna' s case iy here Hidayatullah,
I
.c.J. made these observations was one where allegations of corrupt
practice bad been made and the case came under s. 83(1) (bJ of the
Act. Obviously, allegations of corrupt practice being in the nature
of a criminal charge, the Act requires full particular>Y to· be given.
The scheme' in s. 83(1) .of the Act makes the position very clear.
Clause (a) refe~s to general allegations and requires a concise state-
ment of material facts to be furnished while clause .(b) referring fo
'G corrupt practiee requiresjll detaifs to be given. Appellant's co,;nsel,
· · therefore, was not entitled to rely upon the proposition in
Balakrishna's case for the present purpose. ·So far as averment in
paragraph 9(1) of the_ election petition is concerned, we find that the
number of ballot papers alleged· to have been wrongly rejected has
H been furnished, the counting table number has been given, the booth

(1) [1969J 3 S.C.R. 603. ,
A.ll!. BOSE v. M.F. AN~ARI (Ra11ganath MfJTO, J.) 12'7

number has also been. disclosed and the grounil for rejection bas
.. even been pleaded. Respondent No. 1 pleaded that the particulars A
of the b_allot papers could not oe obtained as during counting they
were not show!). His counting agent at table no. 10 has been
examined as his witµess No. 3. He has stated:

"The ballot box of Fukbandi booth No. 10 was -
brought on my table and it was intact. · That ballot box \ B
contained some ballot papers which w~re not bearing .
signature of the Presiding Officer. I raised objection in
respect of those ballot papers· that they should not be
treated as doubtful ballot papers to· be sent to the Re~
turning O~cer. Counting Superviser did not listen to
my protest and sent them to the. Returning Officer as
doubtful. ballot papers. There were. 74 such ballot
papers."

The Assistant Returning Officer was examined as RW. 4 on behalf
D
of the appellant. Iti his evidence he stated that he had rejected
some ballot papers of booth no. 10. He again stated that "countin11
agents of candidates were not allowed to note down the serial
numbers of the ballot papers. In view of the statement of the
counting agent of respondent no. 1 and the evidence of the
Assistant Returning Officer there can be. no scope to doubt, and in E

-
our view the High Court was right in taking the view, that the
particulars of the rejected ballot papers were not . available to the ;
counting agents and, therefore, particulars of the numbers of the
ballot papers had not been given ln the election petition. We agree ·
witl:t the High Court that in the facts and circumstances of the case
the pleading in paragraph 9(1) set out the material facts ·in a proper F
way and no defect can be found with it.- '

Mr. Rangarajati' next canvassed that the High Court went
wrong in allowing inspection of the ballot papers. Reliance was
placed on the decision of this Court in the case of Bhabhi v. Sheo G
Govind & Ors.( 1), where it has been held that the fgllowing condi-
tions were imperative before the Court could grant inspection or
sample insl?ection of ballot papers :
(i) That it is important to maintain the secrecy of the
ballot which is sacrosanct and should not be allowed

(!) (1975) Suppl. S.C.R. 202,
•)
-- 128 .. (1984] 1 S.C.R.
, SUPREME COURT REPORTS

A
to be violated· on frivolous, vague and indefinite r~-
allegatiOns;
• ''
(2) That before inspection is allowed, the allegations
made against the elected candidate must be clear >-
and specific and must be supported by adequate
statement of. material facts;
~
B. I l
(3) The_ Court must be prima facie satisfied on the
materials produced before the Court regarding the •
truth pf the allegations made
. for a recount.
' .
' ~ i
c (4) That the discretion conferred on the Court should
not be exercised in such a way so as to enable the >-
applicant to indulge in.·a roving. inquiry with a view
to fish materials for declaring the election to be
void; and
D _.-
'(5) Th2t on the special facts of a given case sample
inspectioJl may be ordered to lend further assurance
to the prima facie satisfaction of the Court, re·
garding the truth of the allegations m~de for a re·
E ,count, and not for .the purpose of fishing out I --'

materials."\ "

We have already pointed out that the allegations made in
paragra'.ph 9(i) of the election petition were 'clear and definite. On
the facts of the case the plea was ·confined to one aspect, viz., for. I ·
want of the Presiding Officer's signature with reference to 74 ballot
-- II

.papers cast at a partlcuiar booth and counted on 'll particular table
the same had been rejected. The only specific detail which was
wanting was the serial number of the 74 baJ.¥:>t papers. We have,
on the evidence record~d in the case, come .to the conclusion that
this particular was not available to the election petitioner in spite of
G attempts made on his behalf. While we agree with the view ex•
pressed in Bhabi's case, on the facts before us we are inclined to
think that inspection had rightly been ordered. Mr. Ray fof res·
pondent no .1 pressed before us the fact that the 0rder of the High
H Court allowing inspection had been questioned before the Court and
no interference was made. Appellant's uounsel on the other hand
contended that as the application under Article 136 of the Consti·
tution had not been disposed of on merits, this a spec! was open to
A.K. BOSE v. M.F. ANSARI (Ranganath Misra, J.) 129

challenge in a regular appeal under s. 116A of the Act. It is un-
necessary to refer further to the consequences of non-interference A
·by this Court on the earlier occasion as on the facts we are satisfied
that the action of the High Court in allowing inspection is not open
to dispute. A number of authorities were cited by Mr. Rangarajan
in support of his contention that inspection should not have been
granted. Since Bhabhi's case has considered' most of . the cases B
relied upon by Mr. Rangarajan and tests have been laid down to
which reference has been made by us, we see no necessity to
independently refer to and deal with the other cases.

The 74 ballot papers which had been rejected were placed
before us during the hearing. In the election petition it has been c
contended that the rejection was only on one ground, viz';.. absence
of the signature of the Presiding Officer. The appellant in his
written statement had taken the stand that the identifying mark was
also wanting. The ballot papers have been scrutinised by us as
also by learned counsel for both the parties. Mr. Rangarajan has
D
conceded on seeing the ballot papers that each of them bears the
mark. Admittedly none of them contains the signature of the
Presiding Officer. Rule 56 of the Conduct of Election Rules; 1961,
makes detailed provision for counting of votes. Sub-rule (2) re-
quires the Returning·Officer to reject a ballot paper when any of the
sevell. infirmities indicated therein is found. In view of the con- E
tentions advanced before us the relevant infirmities would be as

- provided in sub-clause (e), i.e. the ballot paper is a spurious one and
(h), .i.e. it does not bear both the mark and the signature which it
should have borne under th~ provisions of sub-rule (I) of rule 38.
Rule 38(1) provides : ·
F
"Every ballot paper before it is issued to an elector,
and the counterfoil attached thereto shall be stamped on
the back with such distinguishing mark as the Election
Commission may direct, and every ballot paper, before.
it is issned, shall be signed in full on its back .by the G
Presiding Officer."

These 74 ballot papers cast in favour of the respondent .No. I
-
which have been rejected were in two series, 24 ,in one and 50 in the
other. Though the Assistant Returning Officer had stated that
H
according to him these w:ere spurious; he has in his cross-examination
clairficd the position t1Jat by 'spurious' )le me;int ti\at the 1;iallot
130 SU.PREME COURT REPO)lTS (1984] l.,S,C.R,

papers did not contain the signature of the Presiding Ofl)cer. That
A these ballot papers were used at the election in booth no. IO is not
open to doubt in view of :the .ballot paper account for .this booth,
That shows that 810 ballot papers in all had been received being
from serial nos. 006851 to 007660. 424 ballot papers were used
and ballot papers of the same number had been found in the ballot
box and duly accounted for. The numbers of .the ballot papers
B including the 74 in dispute are.covered by tho particulars of .used
ballot papers given in the ballot paper account which is Ext. 2 in
the case. The Presiding Officer himself has proved· this document.
The report made by the Returing Officer to the Election Commission
Ext. A also shows.that the ballot papers were not spurious. There
c is sufficient evidence on record from which it can be concluded . that
the. rejection of these 74 ballot papers was on account of the fact
that they did not contain the signature of the Presiding Officer as >--
required under rule 38.(1); Mr .. Rangarajan is right in his submission
that if a ballot paper does not contain the signature of the Presiding
Officer it has got to be rejected at the counting in view, of the .....
D mandatory provision in rule 56(2) of the Conduct of Election Rules. I

The point for consideration now is whether the proviso which reads
as follows was applicable :

"Provide'd that where the returning officer is satisfied
E that any such defect as is mentioned in clause· (g) or
clause (h) has been caused by any mistake or failure on
the part of a presiding officer or polling officer, the ballot

F
paper shall not be rejected merely on the ground of such
defect". --
On the submissions at the Bar, the question of mistake does not
arise. It has to be found out whether these 74 ballot papers in dispute
did not contain the signature of the Presiding Officer on account of
his failure. Rule 38 makes it clear that the distinguishing mark and
j
the signature of the Presiding Officer have to be put on the ballot
G
paper before the same is issued to the voter at the booth. The
distinguishing mark can be put by . any one but the signature "has
got to be of the Presiding Offier and obviously he has to personally
'do that job. There is evidence that the Presiding Officer had been
taken ill on the date of po.ll. He has been examined as PW2. From
H
his evidence it appears that this was his first experience as a Presiding
Officer of a booth. He has stated : "On the day of poll my bowls
was upset arid I !tad visited the pokhra (tan)<:) once on the day of
A.~. BOSE v. M.F. ANSARI (Ranganath Misra, J.) 131

poll and during that period all the ballot papers were kept on the
table. I bad not put my signature on all the ballot papers. I had A
deputed one of the polling officers at the booth to watch the ballot
._ papers when I had gone to the pokhra. For 5 to IO minutes that I
. was absent from the polling booth on the day of poll, I cannot say
what had happened during that period." The appellant had cross.
examined this witness and suggested to him that he had gone to
B
attend to the call of nature three or fuor times. The appellant's
witness No. 2 who was also a candidate at the election (and is a
respondent here) bas stated :

"I found the Presiding Officer at booth fno. JO
sleeping under a Neem tree at some distance from the c
booth when I visited the booth in the uoon."
, .
Once it is held that the 74 ballot papers were not spurious, and
bad been issued to the voters at the booth in the course of the poll,
it would be reasonable to presume that the ballot ~papers had been D
issued to the voters without signatures of the Presiding Officer
though the distinguishing mark bad been put. The absence of the
Presiding Officer from the place of poll has clearly been established.
~-- Whether it was for 5 to IO minutes as d~posed by him or it was no
three or four occasions as suggested to him in cross-examination or E
for a .good length of time during which he was having :a nap under
a neem tree as ~eposed to by RW. 2, it is clear that he was awaY
. from the place of polling for quite some time. The polling process
must have continued and voters who came during his absence had
obviously been issued these unsigned ballot papers. If the· facts be
these, would it not be a case of failure of the Presiding Officer to F
put his signatures on the ballot papers is. the question for conside·
ration. It was the obligation of the Presiding Officer t4l put his
signature on the ballot pJpers before they were isrued to the voters.
Every voter has the right to vote and in_ ·the democratic set up
prevaliling in the coun\ry no P"rson entitled to share the franchise
G
can be denied the privilege. Nor can the candidate be made to
suffer. Keeping this position in view, we are of the ,definite view
that the present case is one of failure on the part of the Presiding
Officer to put his signature on those ballot papers so as to satisfy
the requirement of law. The proviso, once it is applicable, bas also H
a mandate that the ballot pap" is not to be -rejected. We, therefore,
hold that the ballot papers were not liable to be rejected as the
proviso applied an_d the Hi¥b Court, in our opinion, ca111e \Q the
132 SUPREME COUllT RBPOllTS [1984) 1 S.C,R.

correct conclusion in counting' these ballot papers and giving credit
A thereof to the respondent no. 1.

The next question for consideration is ·as to whether all the ,4
ballot papers which were rejected in the constituency should have
been allowed to be inspected and recounted on the basis of inspection
or should the inspection have been confined to 74 ballot papers as
B done. This question is ~onne'Cted with the fourth contention of the
appellant's counsel, i.e. whether in the a~sence of a recrimination the
appellant who was the returned candidate, could claim that the
election petitioner would not succeed for the additional relief as he .1
had not received the majority c:>f the votes polled at the election. We
c have already inicated that the appellant as .the elected candidate in
his written statement had pleaded that the counting was in accor·
dance with law and not objectionable. The ~ffect of such a plea is
that the ballot papers which had been cast in his favour but credit
had not been given thereof had been validly rejected. In the election
petition two reliefs had been claimed, firstly, for setting aside the
D election of the returned candidate; i.e. the _appellant, and secondly,
for a declaration that the election petitioner (respondent no. 1) was
the duly elected candidate. T!ie relief claimed was in terms of
. s. 100(1) (d) (iii) and s. JOI (a) of the Act. -The election petitioner
had claimed that there was improper rejection of votes cast in ---'
his favour and that he had received a majority of the valid votes
at the election. The Act makes in s. 97 provision for recrimina·
tion. Sub-section (l) of that section which is material re~ds thus :

"When in an election petition a declaration that any
p candidate ot\l.er than the returned candidate has been duly
elected is claimed, the returned candidate or any other
parfy may give evidence to prove that the election of
such candidate would tiave been void if he had been the
returned candidate and a petition had been presented
calling in question his election :
G
Provided that the returned candidate or such other
party, as aforesaid shall no( bi:. entitled to give such
evidence unless he has, within fourteen days from the date
H
of commencement of the trial glven notice to the High
Court of his intention to do so and has also given the
- ·""'
security and the further security referred to in sections H 7
11nc;l 118 respectively." .. .
A.K:. DOSE v. Mi. ANSARI (Ranganath Misra, J.) 133

Admitiedly no application for recrimination was filed. '
Mr. Rangarajan has strenuously contended that keeping the scheme
A
and the purpose of the law in view, in a case of this type refusal to
count the other rejected ballot papers on the plea of non-filing of a
recrimination petition would lead to injustice. We have already •
indicated the pronounced view of this Court in Jagan -Nath's case
which has been followed tbr011ghout and the last in series is the B
case of Jyoti Basu to which also we have adverted. There is no
scope for equity since the entire gamut of the process _of election is
covered by statute Reliefs as are available according to law can
on!)' be granted.. It is true that in Kum. Shradha Devi v. Krishna
Chandra Pant & Ors.,(1) it has been observed :
c
"If the allegation. is of improper rejection of valid
votes which is covered by the broad spectrum of scrutiny
and recount becanse of miscount, petitioner must furnish
primafacie proof of such error. If proof is furnished of
some errors in respect of some ballot papers, scrutiny and D
recount cannot be limited to tho'° ballot papers only. 'If
the ,recount is limited to those ballot papers in respect of
. which there is a specific allegation of error and the
correlation is established, the approach would · work
havoc_in a parliamentary constituency where more often
we find 110,0~0 or more votes being rejected as invalid . E
. Law does not require that while giving proof of prima
facie error in counting each head of error must be tested
by only sample examination of some of the ballot papers
which answer the error and then take into consideration
only those ballot papers and not· others. This is not the F
area of enquiry in a petition for relief of recount on the
ground of miscount."

These observations came not in a case to which s. 97 of the Act
applied. This Court was considering a case t>f recounl simpliciter.
G
The pqsition of \aw as to the imperative necessity of a· recrimination
in cases as before us is well settled. A Five Judge Bench in Jabar
Singh v. Ge11da Lal,(') examined at length the provisions of s. 100
ands. 97 of the Act. That was a case where the . difference was of
two votes and an application had been made asking for reliefs both H
(1) [1982] 3 s.c.c. 389.
(2) [1964] 6 S.C.R. 54.
1~4 SUPl!.EME COUl!.T l!.EPOl!.TS tJ 984) I S.C.R.
under s. 100( I) (d) (iii) as also sc 101. In that background the
A question for consideration was whether in the absenc_e of a petition
for recriminatiou relief could be grauted. Gajendragadkar, J. (as the
learned Judge then was), spoke for himself and three other learned
Judges. In the majority judgment it was held :
B
"Confining ourselves to clause (iii) of s. 100(1) (d),
what the Tribu11al has to consider is whether there has
been an improper reception of votes in favour of the
returned candidate. Jt may also enquire whether there
has been a refusal or rejection of any vote in regard to
c any other candidate for whether there has been a recep'
tion of any vote which is void and this can ·only be the
reception of a void vote in favour of the returned candi-
date. In other words,_ the scope of the enquir>' in a case
falling under s. 100(1) (d) (iii) is to determine whether
D any votes have been improperly cast in favour of the
returned candidate or any votes have been improperly
refused or rejected in regard to any other candidate.
These are the only two matters which would be relevant
in deciding whether the election of the returned candidate
has been materially affected or not. At this enquiry,
E the onus is on the petitioner to show that by reason of
the infirmities specified ins. 100(1) (d) (iii), the result of
the returned candidate's election has been materially
affected, and that, incidentally, helps to determine the
scope of the enquiry. Therefore, it seems to us that in
the case of a petition where the only claim made is that
F
the election of the returned- candidate is void, the scope of
the enquiry is clearly limited by the requirement of
s. 100(1) (d) itself. The enquiry is limited not because
the returned candidate has not recriminated under
s. 97(1); in fact s. 97(1) has no application to the case
G falling under s. 100(!) (d) (iii), the scope of the enquiry
is limited for the simple reason that what the clause
requires to be considered is whether the election of the
returned candidate has been materially affected and noth-
ing else. If the result of the enquiry is in favour of the
petitioner who challenges the election of the returned
H a
candidate, the Tribunal has to make declaration to that
effect, and that declaration 'brings to an end the
proceedings in the election petition.
A.K. ilosil v. Id.ii. ANSARI (kanganath Misra, J.) 135
There are, however, cases in which the election petition
makes a double claim; it claims that the election of the
returned candidate is void, and also asks for a declaration
that the petitioner himself or some other person has been
duly elected._ It is in regard to such a composite case
that s. JOO as well as s. JOI would apply, and it" is' in
respect of the additional claim for a· declaration that some
other candidate has'been duly elected s. 97 comes into
B
play. Section 97(1) thus allows the returned candidate
to recriminate and raise pleas in support of his case that
the_ other person in who_se favour a declaration is claimed
by the petition cannot be said to be validly elected, and
these would be pleas of attack and it would be open to c
the returned candidate to take these pleas, because when
he'recriminates, he really becomes a counter-petitioner
challenging the validity of the election of the alternative
cadidate. The result of s. 97(1) therefore, is that in dealing
with a composite election petition, the Tribunal enquires
into not only the case made .out by the petitioner, but
D
also the counter-claim made by the returned candidate.
That being the nature of the proceedings contemplated
by s. 97(1), it is not surprising that the. returned candi,
date is required to make his recrimination and serve
notice in that behalf in the manner and w_ithin the time E
specified by s.97(1) proviso and·s. 97(2). If the returned
candidate does not recriminate as required by s. 97, then
he cannot· make any attack against the alternative claim
made by the petition. In such a case, an enquiry would
be held under s. JOO.so far as the validity of the returned
candidate's' election is concerned, and if as a result of tlfe F
said enquiry a declaration is made that the election of the
returned candidate is void, then the.Tribunal will proceed
to deal with alternative claim, but in doing so, the
' returned candidate will not be" allowed to lead any
evidence because he is precluded from raising any pleas G
against the validity of the claim of the alternative
candidate.

It is true that s. 10l(a) requires the Tribunal to find
that the petitioner or such other candidate for the decla· H
ration of whose election a pray_er is mac!e in the election
petition has in fact received a majority of the valid
·'

SUPREME COURt REPOllTS · (1984) i S.C.R.

votes. It is urged by Mr. Kapoor that the Tribunal
cannot make a finding that the alternative candidate has
in fact received a majority of the valid votes unless all
the votes cast at the election are scrutinised and counted.
In our opinion, this contention is not well founded, . We
ha\>e already noticed that as a resu It of rule 57 (now rule
56(6) of Conduct of Election Rules), the Election Tribu-
8 nal will have to assume that every ballot paper which had
not been rejected under r. ·55 coustituted one valid vote
and it is on that basis that the finding will have to be
made under s. IOl(a). Section 97(1) undoubtedly gives
an opportunity to the returned candidate to dispute· the
c validity of any of the votes cast in favour. of the alterna-
tive candidate or to plead for the validity of any vote
cast in his favour which has been rejected; but if by -his
failure to make recrimination within time as required by
s. 97 the ,returned candidate is precluded from raising
any such plea at the hearing of the election petition,
D there would be nothing wrong if the TFibunal proceeds to
deal with the dispute under s. \Ol(a) on the basis that
the other votes counted by the returning officer were
valid votes and that votes in favour of the returned,
candidate, if any, which were rejected, were invalid.
E What we have said about the presumed' validity of the
votes in dealing with a petition under s. IOl(a) is equally
true in dealing with the matter under s. IOO(l)(d)(iii). We'
are, therefore, satisfied that even in cases to which s. 97
applies, the enquiry necessary while dealing with the
dispute under s. !Ol(a) will not be wider if the returned
candidate has failed to recriminate."
F
Ayyarigar, J. did take a different view of the matter· and it is
on the minority view that strong reliance has been placed by Mr.
Rangarajan. He has even contended that the proposition in 'minority
G view was more appealing and had reminded us that there have been
instances where the minority view lays down the law correctly and
in due cuorse is accepted .to be the law of the country. As we shall
presently show, the ratio in the majority opinion is still holding the
field and on the plea that the minority view may some day become
H the Jaw, relief in the present case cannot he granted. We are bound
by the decision of the' larger Bench.
f
_A.k. BOSE v. M.Ji. ANSARI (Ranganath Misra, J.) .13'
This Court in P. Malaichami v. Mr. Andi Ambalam and Ors.(1),
considered this question again. Alagiriswami, J. spoke for the A
Bench which heard the appeal. There i\ had been contended by
counsel that in view of the facts of that case, '.recrimination and the
requirement of s. 97 need not have been insisted upon. This is how
that contention was answered : ·
B
"The question still remains whether the requirements
of s. 97 have to be satisfied in this case. It is argued by
Mr. Venugopal that the gravamen of the respondent's
petition was breach of many of the election rules and that
he asked for· a tQtal recount, a request to which the·
appellant had no objection and that there was, therefore, c.
no rule or need for filing a recrimination petition under
s. 97. This, we are afraid, is a complete misreading of
the petition. -No doubt the petitioner asked for a re-
count of votes. It may legitimately be presumed to mean
·a recount of a11 the votes, but such a recount is asJe.ed
for the purpose of obtaining a declaration that the
D
appellant's election was void and a further declaration
that the respondent himself had been elected. This aspect
of the matter should not be lost sight of. Now, when
the respondent a~ked for a recount, it was not a mere
mechanical process that he was asking for. The very E
grounds which he urged in support of his petition (to
which we have referred at an earlier stage) as well as the
application for recount and the various grounds on which
'
the learned Judge felt '
that a recount should be ordered
s)l.owed that many mistakes where likely to have arisen
in the counting, and as revealed by the instances which
F
the learned Judge himself looked into and decided ... "

The ratio of the decision in Jabar Singh's case was followed and it
was stated:
G
"What we have pointed out just now shows that it
is not a question of mere pleading, it it a question of
jurisdiction. The Election Tribunal had no jurisdiction
to go into the question whether any wrong votes had
been counted in favour of the election petitioner, who H

(!) [1973] 3 S.C.R 1016. ·
138 Suplii!Mfl COURT REPOirs it984J 1s.c.a.
had claimed the seat for himself unless the successful ·
A candidate had filed a petition under s. 97. The Jaw
reports are full of cases where parties have failed because
of their.failure strictly to conform to the Jetter of the
law in regard to the procedure laid down under the· Act
and the Rules." ,
B
Several decisions were cited before us by Mr. Ray for
respondent No. I which we think unnecessary to refer to in view of
the clear pronouncements and the state of the Jaw as indicated by
• these decisions. In the absence of a recrimination petition conforming
c to the requirements of s. 97 of the Act the appellant who happens to
be an Advocate and is presumed to know the law, was not entitled
to combat the claim of the election petitioner on the ground that if
the remaining rejected batlot papers had been counted, the election
petitioner would not have been found to have polled the majority of
the valid votes.
D
For the reasons we have indicated, this appeal has to be
dismissed, In the circumstances we direct the parties to' bear their
respective ·costs throughout ·

E H.S.~. Appeal dismissed.