1. This appeal is preferred by the unsuccessful petitioner who had filed an election petition challenging the election of Respondent 1, the successful candidate, who was declared elected by a margin of seven votes on 20-2-1992. Immediately after the counting was over and the appellant-petitioner realised that he was unsuccessful, he had preferred an application for recount on the ground that the margin was narrow and the number of rejected votes being fairly high, it was appropriate to meet the ends of justice to recount the votes, and also because two ballot papers were lost. On this application, the Returning Officer passed an order on that very day, the relevant part whereof reads as under
"Keeping in view the request of Sathi Roop Lal, I ordered re-count of all the rejected votes which was conducted by me in the presence of Sathi Roop Lal and Mrs Malti and the Central Observer, appointed by the Election Commission. During the re-count of rejected votes, two valid votes, one in favour of Mrs Malti and the other in favour of Sathi Roop Lal were found. Accordingly, the result was prepared and subsequently announced. At the end of it, Mrs Malti signed while Sathi Roop Lal refused to sign after this count." *
After the result was declared, the appellant challenged the election of the first respondent, once again claimed a re-count and prayed that he be declared elected. The first respondent contested the petition. The learned Judge of the High Court taking into consideration the pleadings of the parties framed three issues as under
1. Whether the result of the election insofar as it concerns Respondent 1 has been materially affected by the alleged non-compliance of the provisions of the rules or orders made under the Representation of the People Act, 1951 ?
2. Whether a case has been made out for ordering re-examination and re-count of the ballot-papers ?
2. On behalf of the petitioner as many as 13 witnesses were examined whereas the respondent examined five witnesses. The main controversy was twofold, namely, whether the petitioner was entitled to inspection of ballot papers and re-count and whether the election of the first respondent was vitiated on account of 22 bogus votes cast during the poll. The learned Judge in the High Court answered both these contentions in the negative and dismissed the election petition and hence this appeal
3. We have carefully perused the evidence adduced by the parties and the reasoning of the learned Judge in negativing both these contentions urged on behalf of the appellant-petitioner. Taking the second contention first, we find that the evidence adduced was that the voters' list contained 22 names of persons who had passed away and the attempt made was to show that bogus electors impersonated dead electors and cast their votes in favour of the elected respondent. The names of these 22 dead electors are to be found in Annexure P-9 appended to the petition. The evidence led in this behalf is of the Polling Agents of the appellant himself, namely, PW 8 to PW 11. Admittedly, they worked as the Polling Agents of the appellant and their evidence is to the effect that they had tickmarked certain names of the electors in their copy of the electoral rolls. The learned trial Judge did not attach much importance to this evidence for the obvious reason that these Polling Agents were interested witnesses and the tickmarking of their lists did not carry the case any further. On the other hand, the respondent examined PW 4, Tehsildar (Elections), and he went to the Court with the election record in a sealed cover and after opening the same in the presence of the learned Judge, he stated that so far as the official record was concerned, the tickmarking was against four names only out of 22 and these four names were of Jarnail Singh, Harbhajan Singh, Rajinder Kumar and Om Parkash. With regard to the remaining names appearing in Annexure P-9, he deposed that since the original voters' list had not been tickmarked, it shows that none of them had cast their votes. In regard to even these four persons, the only evidence is that there was a tickmark against their names which means that someone had demanded the ballot paper, but there is no evidence that after obtaining the ballot paper that person had cast the vote. But the learned Judge has taken the view that even if it is assumed that these four persons had cast their votes in favour of the successful respondent, that had not materially affected the election because even then the successful candidate would have been declared elected by three votes. The second contention was thus rightly rejected
4. The learned counsel for the appellant, however, contended that the Returning Officer should have allowed a re-count of all the votes and not merely the rejected votes. If we turn to the application of the appellant which is Annexure P-3, all that he had mentioned was that since the margin of success was narrow and since the number of rejected votes was fairly high, the ends of justice demand re-counting of votes. This would indicate that even he wanted a re-count of the rejected votes only. But assuming, as counsel says, that he had demanded a re-count of all the votes, we think that the Returning Officer would be justified in spurning that request. The re-count in regard to the rejected votes was allowed and all that it revealed was that there was a mistake in regard to two votes only and these two votes did not affect the result because the appellant and the first respondent got one each. It was then contended by the learned counsel for the appellant that the learned trial Judge should have allowed inspection and re-count of all the ballot papers. Unless prima facie evidence is led, we do not think that such a request would be justified. The learned trial Judge rejected this contention for valid reasons and we see no reason to disagree with the conclusion reached by him on the facts laid before him. As pointed out earlier, there was a re-count of the rejected votes and, therefore, no grievance could be made on that count and so far as the dead electors are concerned, only at the best, four persons took the ballot papers as deposed by the Tehsildar and even if it is assumed that those four persons voted for the successful candidate, it does not materially affect the election
5. For the above reasons, we see no substance in this appeal. The appeal is dismissed with costs, which we quantify at Rs. 5000.