Subject NOT available

8. T he Returning¹ Officer notified t he date, t i me a nd place for c o u n t i ng t he votes polled In t he 34 G o n da P a r l i a m e n t a ry constituency, as follows :—

Place of counting Assembly Segment of the Parliamentary

Date and time as

Constituency

notified

Gonda East . . . . ..

27-2-1962 at 10 A.M. Combined Office.

Gonda North

27-2-1962 at 10 A. M. Collectorate, Ganda.

Gonda West

28-2-1952 at 8 A.M. Combined Office.

Mankapur . . . . ..

28-2-1962 at 8 A. M. Collectorate, Gonda.

Mahadeva . . . . ..

28-2-1962 at 8 A. M. Combined Office.

Postal Ballot Papers of entire Parliamentary

Constituency . . . ..

28-2-1962 at about Collectorate, Gonda.

10 P. M.

Consolidation of the results of the Poll at all 28-2-1962 at about

Collectorate, Gonda, Polling Stations.

10 P.M.

9. The counting of the Vidhan Sabha (Assembly) votes and the Lok Sabha (Parliamentary) votes of the Gonda-East Assembly constituency and the corres- ponding Assembly Segment of 34 Gonda Parliamentary Constituency eommenc- ed simultaneously on 27th February, 1&62 at 10 A.M. in combined office set apart Ifor the purpose; and that of the Gonda-North Assembly Constituency and the corresponding Assembly Segment commenced simultaneously in a Shamiana (enclosed by Kanats) pitched for the purpose in the compound of the Collectorate.

10. According to the petitioner, the first round of counting required about two hours and was completed about 2-00 P.M. The subsequent rounds took about 1J to 1J hours each, with the result that the entire counting in both Assembly Segments was completed by about 11-00 P.M. in so far as the counting of the Parliamentary votes was concerned. (As regards the counting of the Assembly votes, however, the end-process, such as the counting of the Postal ballot, the over-all tabulation and reconciliation, the formal declaration of the result of the election and the issue of Certificate of Election to the winning candidate took another two hours or more to complete).

According to Respondent No. 1. the counting was not completed at 11 P.M., but continued till the small hours of next morning and concluded at about 4 AJM. of 28th February, 1962.

11. The petitioner stated that from the counting thus far completed and 'tabulated in Form 20, it was known to everybody concerned that Respondent No. 1 was ahead of the netitioner bv, 3,451 votes in the Gonda-East Assembly Segment and by 1,008 in the Gonda-North Assembly Segment.

The Respondent No. 1 did not admit the above figures indicating the result in the manner stated by the petitioner. He. however, admitted that he was reported to be leading.

12. The counting of the Parliamentary votes recommenced on February 28, W62; and as per schedule (vide paragraph 8 above) the ballot papers of the re- maining three Assembly Segments were taken up for scrutiny and counting from 8 A.M. on that day.

On 28th February, 1962, the counting of the Parliamentary votes in G-onda-West Assembly Segment of the Gonda Parliamentary Constituency finished at about 3-00 P.M. This operation was conducted without any objections or complaints of any kind whatsoever, whether oral or written, being raised or made by any of the contesting candidates or their Election Agents or by any of their counting agents, alleging any irregularities or lapses on the part of any member of me counting staff or officers, or otherwise.

It was then known that Respondent No. 1 had, in this Assembly Segment alone, gained a further lead over the petitioner of 4,167 votes, over and above the lead of 4,459 votes he had already secured on the previous day.

At about that time, judging by the progressive results of the counting then proceeding of the votes cast in the Mahadeva Assembly Segment, Respondent No. 1 was ahead of the petitioner in that Assembly Segment also by about 3,000 votes.

13. Petitioner stated that in Mankapur Assembly segment, however, the posi- tion of Respondent No. 1 showed signs of definite and serious decline to such an extent that the chances of Respondent No. l'a eventual success now seemed doubt- ful.

14. At about 10-45 P.M. an application (sijjned by Respondent No. 1) was presented by his Election Agent before the Assistant Returning Officer in charge of the counting of the Mankapur Assembly Segment, for rescrutiny and rechecking of all the ballot papers counted so far. The application was rejected by the Assistant Returning Officer at 11-30 P.M. in writing, after dealing with each ground in detail. Copies of the application and of the order passed thereon by the Assistant Returning Officer are attached to the petition (marked Annexures II-C and II-D respectively).

15. The petitioner stated that at midnight when the counting in this Seg- ment was over and figures were being tabulated for the last round of counting and when it was clear that he had won the election by an overall majority of about 1,600 votes (excluding the small Postal Ballot), the Election Agent of Respondent No. 1 presented another application to the A.R.O. for postponing fur- ther operations until next morning and requesting that the votes in this Assembly" Segment be then recounted. This too was refused by the A.R.O. in writing. Copies of the application and or the order passed thereon by the A.R.O. are attached with the Petition (marked Annexures II-E and II-F respectively), but the result was not declared by the R.O., who sent a note to the AJ3.O. from his bungalow.

Soon, thereafter, the Returning Officer (C. M. Nigam) himself sent a rote to the A.R.O. that he would count the Postal Ballot Papers the next day and would declare the result of the Parliamentary election thereafter.

16. It is alleged that the Returning Officer (C. M. Nigam), even when he thus illegally caused a break In the continuity of the counting against his own earlier instructions and contrary to the previously notified programme, did not take any steps to ensure that the used and counted ballot papers in respect of all the flve Assembly Segments were placed in his own official custody and with his own seals affixed thereto. He (as well as the A.R.O.s) also did not inform any of the contesting candidates or theii Election Agents that they could if they were so minded fix their own seals and signatures on either the packets or on the con- tainers in which such packets had beenplaced. The R.O. thus committed a breach of Rule 60 of the Conduct of Election Rules, 1961, in all essential matters.

17. On 1st of March, 1962, the Returning Officer at about 1-30 P.M. totalled up the result sheets of the Parliamentary election in Form 20; he then opened, scrutinised and counted the Postal Ballots and entered the result thereof also in the result form. And he announced the total voting figures as follows:—

Votes secured

Candidates

Petitioner

82,478

80,902

Respondent No. i . . ..

27,460

Respondent No. 2 . . ..

7,676

Respondent No. 3 . . ..

(Rejected

7,706).

At this stage the Election Agent of Respondent No. 1 presented an applica- tion dated 28th February 1962, before the Returning Officer praying for a recount on various grounds, particularly as regards Gonda North and Mankapur Assembly Segments. A copy of the application is annexed with the Petition (marked Annexure IV).

In spite of petitioner's objection, respondent No. l's prayer for recount was allowed by the Returning Officer,

IB. The recount of votes in respect of petitioner's Parliamentary constituency (34 Gorida) commenced on March 9, 1962 at 11-30 A.M. in the presence of the Deputy Election Commissioner (P.S. Subramanian) who had been specially deputed for the purpose by the Election Commission, presumably to supervise the process of recount and, if occasion demanded, to Issue appropriate directions to the Returning Officer.

At the close of the day, recounting of the entire Mankapur Assembly Segment and of 70 polling stations of Mahadeva Assembly Segment was completed.

On March 10, the votes cast in the remaining Polling Stations of Mahadeva Assembly Segment and in the entire Gonda North Assembly Segment were re- counted before the lunch break.

The net effect of the recount of the three Assembly Segments (namely Manka- pur, Mahadeva and Gonda North) completed so far was a difference of only 3 votes compared with the original count and that too was in favour of the petitioner.

Original Count

Recount Assembly

"STAR" 'BULLS" "STAR"

"BULLS"

Mankapur Mahadeva . Gonda-North

19,706 18,752 14,069

19,643 18,748 14,046

'•32)736 f 15,904 } I33°2I

32,759 K,928 13,061

61,661

61,748

52>527

52,437

9,221

Difference in favour of

* 9*224

The total votes polled in these three Segments (including rejected ballot papers) were 1,34,056.

19. After lunch break on March 10, recounting of votes In Gonda East Assembly Segment of the Constituency in question was commenced. During the second round, when Polling Stations Nos. 17 to 32 were being recounted, two extraordinary abnormalities were disclosed. In Polling Stations Nos, 24, 27' and 28, it was found that in the bundle of rejected ballot papers, many of the ballot papers previously rejected on account of their bearing no voting mark at all, or because they bore voting marks on blank area, were now found bearing a voting mark on the "BULLS" symbol of the Respondent No. 1, thus entitling him to have them counted as valid votes in his favour. On the other hand, in Polling Stations Nos. 18, 24, 27, 28 and 32 in the bundles of valid ballot papers previously counted as valid votes for the petitioner at the first count, unusually large numbers of ballot papers were found bearing additional voting marks on one of the other symbols besides a very clear and bold voting mark on the petitioner's "STAR" symbol, thus rendering them liable to rejection at the recount. A striking feature of these new additional marks In both types of cases, was that they were lightly impressed, sometimes showing only half (or less than half) of the voting starnp impression, in ink that was lighter in shade than that of the original voting mark on the papers. The second striking feature was that the lighter second mark on the previously counted valid votes of the petitioner was usually found placed either on the "HORSE" symbol (Printed at the top of the ballot paper) or on the "TREE" symbol (printed at the bottom of the paper) but only rarely on the "BULLS" symbol of Respondent No. ]. A third feature was that the shade and thickness of all these subsequent marks, both 0*1 the ballot papers previously rejected as well as on those previously counted as valid votes, were uniform when compared with each other but noticeably different from the varying but bold shades and thickness of the earlier marks.

20. Petitioner stated that the unexpected emergence of these extraordinary features caused such an uproar at the counting tables that the Deputy Election

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T HE G A Z E T TE OF I N D IA E X T R A O R D I N A RY

[ P A AT I I-

Commlssioner felt compelled to leave his chair and to see for himself at the tables what the trouble was. He closely inspected some of these ballot papers in the light of the peculiar features referred to above and doubtless formed his own impression and opinion concerning them. There was subsequently some consultation between him and the Returning Officer; and as a result the R.O. directed that all such pre- viously valid votes of the petitioner as were now being rejected by him on recount, da well as all those previously rejected ballot papers which were now being valida- ted by him for the Respondent No. 1, should be tied up in separate bundles and a statement of these should also be prepared polling stations-wise (in a form suggest- ed by the D.E.C.) to be kept preserved along with the ballot paper accounts.

21. As the recount progressed and the same remarkable features continued to be noticed in round after round, there was some further deliberation between the Returning Officer and the Deputy Election Commissioner, whereupon the former announced that the recount would be stopped that day after some time and he would then indicate whether the operations would go on or be stayed. However, the process went on till about 8 P.M. and was then stopped for the day. It was discovered at that stage that the packet of counted ballot papers of polling station No 87 was not traceable; and in its place a packet containing Assembly votes, pink In colour, of the same polling station was found In the bag of the Parliamentary votes It was given out that the missing packet must inadvertently have cot mixed- up in the bag of Assembly votes. Effort was then made to trace it out from that bag, which had till then been lying in one of the court-rooms; but after waiting for some time it was said that it could not be traced,

22 The recount of Gonda-West Assembly Segment was commenced on March 11, at 10 A.M. In this Segment again the same abnormal features were detected though in a lesser degree for the reason, inter alia, that as many as 17 packages of counted ballot papers (relating to Polling Stations Nos. 65, 69, 70 to 73, 75 to 82 and 84 to 86) were found missing and when later discovered (vide paragraph 23 below) were found innnocent of any such mischief.

23 As stated above, as many as seventeen out of 86 packets of counted ballot papers relating to the Gonda-West Assembly Segment were found missing and_ln their place packets of Assembly votes were found in the bag For scmetime,

S^ther^cUfai

SaKtffiS^Kft SS-TSar r~ 2fS "t *g

in the recount of the other packets' of Gonda East and Gonda West Assembly Segments.

time.

STJr^^trco^e^^tli their recounting on llth March.

2". At the n ^ ^ t ^ ^ A t ^ n S c & ' SSballot papers wasflnshed. The B u r n i ng Officer arm t ^ ^tu O f f i c er

missioner then retired f o r, ^ i⁰ a t T r M' he also instructed the entire announced that they would ,re?*se™ at ^ b^ present at such reassembly, but ttlTnrtS^crdS^pStSS^a^t W t t* Returning Officer intended ?n declare the^result of the election at the reassembly

The original count and the recount of Gonda East and Gonda West Assembly- Segments were as follows:—

Original Count

Recount Assembly Segment

" B U L L S" '

"BULLS" 'STAR"

'STAR"

Gonda East . . .. Gonda West

11,658 7,107

13,449 7,268

16,900 " J 4 35

17,025 ",435

28,460

20,717

18,765

28,335

Difference in favour of .

7,618

9,695

The difference in favour of. Respondent No. 1 bad thus increased by 2,077 votes.

The total number of votes polled in these two Assembly Segments (including rejected ballot papers) was 72,112.

27. Shortly after 3 P.M. the Returning Officer came In from the adjoining room but again without the D.E.C. He read out the recounted voting figures as entered In the result sheet in Form 20. It Is alleged that he completely overlooked the need to recount the postal ballot papers.. The recounting was thus technically incomplete, which were then announced aa follows;—

N A ME OF C A N D I D A TE

V O T ES S E C U R ED

R e s p o n d e nt N o. 1 , . .

80,937

P e t i t i o n er . . ..

8 0 , 4 39

R e s p o n d e nt N o. 2 . ..

27>4^9

R e s p o n d e nt N o. 3

7,674

R e j e c t ed

9,74i

28. The petitioner stated that the Returning Officer in spite of the direction from the Deputy Election Commissioner to withhold the declaration, on com- pleting the recount, straightway declared Respondent No. 1 as duly elected and a certificate to that effect was issued to him by the Returning Officer forthwith.

29. The petitioner alleged that sometime between the night of 27th F§bruary, 1962, when the first count of Gonda East Assembly Segment had been finished and the afternoon of the 10th of March 1962 when its recount commenced, the bag and packets containing the counted Parliamentary ballot papers relating to that Segment had been got at and the ballot papers had been tampered with In such a manner that ballot papers previously counted as valid vote* for the peti- tioner had another mark fraudulently impressed upon them so as to render them rejectable (on the ground of multiple marking) and that, in the like manner, ballot papers which had been previously rejected because they bore no voting mark at all. or because they bore such marks on blank area, had been fraudulently altered by affixing on them the voting mark on the "BULLS" symbol so as to render them valid for being counted as valid votes for the Respondent No. 1.

He also alleged that as in case of the counted ballot papers relating to the Gonda East Assembly Sagment, many of those relating to Gonda West Assembly Segment, had also been tampered with In like manner sometime between the close of their counting on the night of 28th February and the commencement of the recounting on llth March.

30. The petitioner submitted as follows:—

(i) That the declaration of the result of the Election in favour of the Res- pondent No. 1 was procured in consequence of extensive tampering with the counted ballot papers after the first count;

(ii) That the said declaration was purposefully made by the Returning Officer In contravention of the Instructions of the Election Commis- sion to withhold the same pending an inquiry into the whole matter

and is therefore mala fide and null and void being invalid in lav ab initio; and

(iii) That the result of the Election in BO far as it concerns the Responden No. 1 has been materially affected:—

(a) by improper rejection by the Returning Officer of over 1,780 valk votes cast for the petitioner in Gonda East Assembly Segment EJIC over 130 valid votes cast In Gon^la West Assembly Segment (tota over 1,900 votes), the same having oeen correctly counted es valic votes for the petitioner at the first count and the relative ballol papers having been subsequently so tampered with before tht recount as to give them an appearance of bearing multiple votint marks and thereby rendering them rejeetable;

(b) by improper acceptance by the Returning Officer of over 150 ballol papers in Gonda East Assembly Segment and some 50 ballot papers in Gonda West Assembly Segment (total over 200) as valid votes in favour of the Respondent No. 1, which ballot papers had been properly rejected on first scrutiny under Rule 56 of the Conduct of Election Rules, 1961, as either bearing no voting marks at all or as bearing voting marks on blank area, and the same having been subsequently so tampered with before the recount as to bear a voting mark on the "BULLS" symbol, thereby giving them art appearance of being ¥=did votes for the respondent No. 1;

(c) by the Returning Officer designedly and Illegally refraining on flimsy. grounds from continuing and completing the process of counting on the night of February 28, Itself as previously notified by the R.O. himself in conflrmity with Rule 60 of the Conduct of Election Rules, 1961;

(d) by deliberate breach of his official duty by the Returning Officer and/ or by non-compliance with the provisions of the Constitution in that he proceeded to declare the result of the Election in total disregard¹ and contravention of the directions lawfully Issued to him by the Election Commission under the power to superintend, direct and control the conduct of elections vested In the Commission under Article 324 of the Constitution of India.

(iv) That the petitioner in fact received a majority of valid votes at t he said election.

31 The petitioner prayed that the Election of Respondent No. 1 be declared void and the petitioner be duly elected to the house of people (LOK SABHA) 34 Gonda Parliamentary Constituency and that his costs be awarded against Res- pondent No. 1.

32 Respondent No. 1 denied that there was any tampering of the ballot paper of Gonda East and Gonda West constituencies, as alleged by the petitioner. He admitted that the recount of votes In Gonda East Segment commenced after t he lunch-break on the 10th of March 1962.

Respondent No. 1 also admitted that a number of ballot papers had been in- correctly rejected and a large number of ballot papers had been incorrectly so> classed as valid at the first counting. Respondent No. 1 denied the correctness of the statement that in the bundle of rejected ballot papers in respect of the- polling stations Nos. 24, 27 and 28 of Gonda East, marks were found on the symbol "BULLS" which had In the first count been rejected as having no mark or marks- in blank spaces. Respondent No. l's contention is that the ballot papers which had actually been marked in his favour had been erroneously rejected at the- first counting as being marked for none. In other cases, even though there had been a clear mark in the "BULLS" case, the ballot napers had been wrongly rejected as marked in blank area. In some other cases. It was also found that even though ballqt papers had actually been marked, they had been erroneously rejected and marked with the stamp ''R.N.M.". Respondent No. ] further stated that the Deputy- Election Commissioner in the early stage of recount on March 9, 1962, had suggested that a ballot paper, containing a mark, howsoever, insignificant should" be treated as a valid vote, and the Returning Officer, with the approval and in the presence of the Deputy Election Commissioner accepted acting on the said suggestion, such ballot papers having such marks which were originally stamped as " R N M ." as valid votes. This happened because the rubber stamp was not affixed by the Assistant Returning Officers themselves, but by subordinates and the signatures of the Assistant Returning Officers were very, often mechanically- taken at one time on a number of such ballot ijaper marked by the subordinates. This had the effect ol permitting both occidental errors as well as deliberate

mischief. According to Respondent No. 1 in certain polling stations, mentioned in paragraph 19 that even though ballot papers had on their very face been in- valid as they had contained marks against more than one candidate, they had been counted, without any justification, as valid votes for petitioner.

33. Respondent No. 1 further alleged that the process by which the valid ballot papers were separated from the doubtful ones, depended entirely upon the un- controlled will of the counting staff. There was no question of any decision by the Assistant Returning Officer or his assistants at the first count in respect of the ballot papers separated and accepted by the counting staff, as valid.

Respondent No. 1 further stated that the combined office where the counting was made in respect of Gonda East and Gonda West segments was 28'x20' and there was overcrowding as 150 persons were inside It connected with the counting. Under the circumstances, it was not possible for his counting agents to keep a watchful eye on the counting staff, who not only did not discharge their duties properly and efficiently, but some of them abused the opportunity thus available and acted in the interest of the petitioner. The counting staff consisted mostly of temporary hands employed in certain Government departments as also of certain staff belonging to the Antarlm Zila Parishad etc. who were easy victims to temptations, Influence and intimidation of the Raja of Mankapur who was using all his power, influence and resources in the interests of the petitioner.

It is also alleged that there was insufficiency of light in the combined office when the counting was made, as a result of which proper scrutiny of the valid and invalid papers could not be effected.

34. Respondent No. 1 asserted that after the first counting, the bags and boxes containing the ballot papers were kept in the Triple Lock Room and subsequently removed to the Double Lock Room of the Gonda Treasury. The rooms were guarded by Arm Guards as well as by few men employed by the petitioner for that purpose. It was thus impossible for respondent No. 1 to get bold of the bags surreptitiously,

35. Respondent No. 1 further denied that there was any direction from the Deputy Election Commissioner to the Returning Officer for withholding the declaration of the result. The petitioner attempted to obtain the withholding of the declaration of the result, but respondent No. 1 submitted that the Returning Officer was bound under section 66 of the Representation of People Act to declare the result of the Election and he was justified in doing so.

38. Respondent No. 1 also denied that there was any breach of any official duty on the part of the Returning Officer or any non compliance by him of any provision of the Constitution, or that he in any way acted against any¹ direction of the Election Commission and that even if he had so acted, it would not amount to any violation of any provision of the Constitution of India, which could be the basis for avoiding the election of this respondent.

Respondent No. 1 also denied that the Returning Officer acted illegally in not continuing the process of counting on the night of the 28th February, 1962.

Respondent No. 1 denied that his election has been materially affected either by any improper rejection by the Returning Officer of over 1780 valid votes cast for the petitioner in Gonda East Assembly Segment and over 130 valid votes cast in Gonda West Assembly Segment (total over 1900 votes), cr by any improper acceptance by the Returning Officer of over 150 ballot papers in Gonda East Assembly Segmeat and some 50 ballot papers in Gonda West Assembly segment (total 200) as valid votes in favour of Respondent No. 1.

37. Respondent No. 1 pleaded that the Raja of Mankapur who sponsored the candidature of the petitioner wielded great influence on the class of people that constituted the bulk of the counting clerks and, therefore, they helped in mani- pulating their counting in favour of the petitioner. That aforesaid designs further assisted by insufficiency of light in the combined office and no proper check on the scrutiny of the ballot papers could be maintained on account of the over- crowding.

38. Respondent No. 1 also contended that the Tribunal would have no jurisdic- tion to go into the question of any alleged tampering, as those allegations are not covered by any ground mentioned in section 100 of the Representation of the People Act.

39. Respondent No. 1 also contended that the petitioner and his election agent were present throughout at the recount and no objections were preferred by either of them in respect' of any acceptance or rejection or to the exercise of any

discretion by the Returning Officer, in spite of every available opportunity. The petitioner is now stopped from raising any plea against the decisions of the Re- turning Officer on the rejection or acceptance of ballot paper.

40. Respondent No- 1 filed recrimination under section 97 of the Representa- tion of People Act, 1951, by which he alleged that the petitioner himself and through the five base candidates of Assembly constituencies who acted with his approval and consent and through other persons acting with his knowledge and consent committed the corrupt practices as defined in section 123 of the Repre- sentation of People Act, 1951.

41. The petitioner himself and with his consent and approval Naurang Singh committed corrupt practice of bribery as mentioned below: —

(a) K. S, Pajthak, an independent candidate had considerable hold in the constituency and had good prospect against the Swatantra Party candi- date Naurang Singh. The petitioner himself and with his consent and approval Naurang Singh promised to give gratification to K. S. Pathak with a view to induce the latter not Lo stand as candidate at the election for the U.P. State Legislative Assembly from the Gonda North Constituency.

(b) The petitioner and Naurang Singh offered to pay Rs. l.OQO also to K- S. Pathak who accepted the offer and withdrew from the contest.

42. The petitioner and Naurang Singh induced Siraj Ahmad to stand as an independent candidate at the election in Gonda North Assembly constituency with a view to divide the votes of the congress. Naurang Singh offered to use his Influence in region of the Intlathoke Block Development and support Siraj Ahmad for the election to the post of Block Framukh of the said block.

The petitioner and Naurang Singh also offered to give money to Siraj Ahmad to cover all the expenses and also to provide workers and supporters for Siraj Ahmad for his election for the U.P State Legislative Assembly Constituency of Gonda North.

43. Naurang Singh with the consent and at the instance of the petitioner, in- duced Mahadeo Prasad to stand as¹ a candidate at the Assembly Election in Gonda North with a view to divide the votes of Congress candidate. Naurang Singh offered to use his personal influence to get Mahadeo Prasad's son appointed as a Teacher at Tulsipur College. The petitioner promised that he would meet all the expenses of Mahadeo Prasad in respect of election in question and would also provide workers for his election.

44. That Naurang Singh with the consent and approval of the petitioner and with the object of impairing the prospects of the congress candidate and to gain advantage thereby for themselves, distributed money through Jamuna Prasad Tewari, Sarpanch of the village to about 300 voters on 18th February, 1982, with the stipulation that they should refrain from votine.

45. Naurang Singh with the consent of the petitioner promised to pay money to voters who promised to vote for them and money was actually paid after it was ascertained that the voters had in fact voted for them.

46. The petitioner and his agents, workers and supporters, with his knowledge and consent hired bullook-carts and other vehicles for conveyance of the electors of a number of villages to the polling; stations and back to the said villages on the date of poll.

47. The petitioner and with his consent and approval, Raja Raghvendra Pratap Singh who sponsored his candidature committed corrupt practice of undue influ- ence as defined in section 120(2) of the Representation of People Act, 1951.

48. The petitioner and Raja Raghvendra Pratap Sin^h and with his consent the workers and supporters of the petitioner, organised a Yagya on 4th February, 1962, at Sarvan Pakar. The petitioner performed the religious rites connected with the Yagya and appealed to the people to support him on the ground of Hindu religion. The petitioner and Raja Raghvendra Pratap Singh impressed upon the general public and the majority of the electorate of the constituency who had gathered there that they were spiritually and religiously td be regarded as chaste and pious Hindus and further impressed upon them that Ram Ratan Gupta, op- posing the petitioner, was not so; and that the electorate would be acting against the divine precepts in supporting and giving the votes to Ram Ratan Gupta and further that the petitioner emphasised before the gathering that Ram Ratan Gupta

was a hetrodox Hindu in character and conduct and in his habits of eating and dining with Muslims and he eats eggs; chicken and Murgas and fish and all kinds of flesh and is thoroughly impious and in-eligible to be called a Hindu Bania and, therefore, the general Hindu public and the electorate would be acting against the precepts of Hindu religion if the electorate would not accept hla advice as their proper representative and vote for him.

Respondent No. 1 submitted that the above statement about his personal cha- racter was false to the knowledge of the petitioner and which they had no leason to believe to be true..

49. Between the period commencing from 6th February 1963 to 18th February 1962 leaflets and special election issues of a paper known 83 "NAGRIK" which is published at Kanpur were distributed in the constituency by the petitioner and with his consent by his workers and supporters. The leaflets were published by one Abdul Rahim Khan alias Buddhu Khan who was the agent of the petitioner. In this issue of Nagrik, false statements regarding the personal character and conduct of Respondent No. 1 (Ram Ratan Gupta) were made by the petitioner and the persons distributing them with his consent. The petitioner knew these allegations to be false.

50. The petitioner himself and through his agents and workers and other per- sons acting with his knowledge got the votes of a number of dead and absent electors polled through fictitious persons impersonating for those dead and absent electors in his favour.

51. The petitioner incurred for greater expenses than Rs. 25,000 as prescribed in section 77 and rule 90 of Conduct of Election Rules, 1951.

52. Respondent No. 1, therefore, contended that the petitioner is not entitled to be declared elected even if the election of the Respondent is declared invalid and further that the petitioner is liable to be disqualified for having committed corrupt practices in relation to the Election.

53 The petitioner denied that he committed any corrupt practice as alleged by Respondent No. 1 within the meaning of section 123 of the Representation of People Act.

54. The petitioner denied that he or Naurang Singh offered any gratification to Sri Pathak to induce him not to stand, as a candidate at the said Election. In fact, Sri Pathak at all material times was and still is an active supporter of Respondent No. 1.

55. The petitioner denied that he or Naurang Singh induced Siraj Ahmad to stand as a candidate at the election or that any gratification was promised to be given to him.

56. The petitioner denied that any gratification was promised to Mahadeo Prasad. The petitioner submitted that the allegation of offering gratification to Mahadeo Prasad is totally false. Further, the allegation that Jamuna Prasad distributed money to voters on 18th February, 1962 was also false.

57. The petitioner denied that Raja Raghvendra Pratap Singh exercised any undue influence as alleged by Respondent No. 1. The petitioner denied that he and Raja Raghvendra Pratap Singh performed the Yagya at Sarvan Pakax or that they did anything on that date and at that place to convey to the voters any impression about thefr religious orthodoxy or spiritual eminence, or to impress upon the voters that the Respondent No. 1 was not religious minded. The alle- gation that the aforesaid alleged intentions were expressed by the petitioner and Raja Raghvendra Pratap Singh in their speeches is wholly false. The petitioner denied that the allegation that Respondent No. 1 eats eggs, chicken, Murga, flesh and flsh and is impious and not worthy of the name of a Hindu Bania, is false.

58. The petitioner denied that the publishers and printers of the paper known as "NAGRIK" were his agents workers and supporters. He said that he had nothing to do with the publication of any article with the said paper. The alleged distribution of this paper is also denied by the petitioner.

59. The petitioner admitted that Abdul Rahim Khan worked as a counting agent for him at the time of recounting, but he denied that Abdul Rahim Khan printed and published the said leaflets (Annexure 6 of the Recrimination) with the knowledge and consent of the petitioner, or that the same was distributed at any time in the constituency with his knowledge or consent.

• 7 90

T HE G A Z E T TE OF I N D IA E X T R A O R D I N A RY

[ P A RT I I-

60. The petitioner also denied that vehicles or conveyances were ever hire< for carrying voters to and from the polling stations In any part ol the eonsti tuency either by him or by his agent with his coiusent.

61. The allegations of voting by impersonation or voting in the name of deac persons are denied as absolutely false.

62. The petitioner stated that he has given account of -jail expenses and he die not incur election expense exceeding the prescribed limit.

63. Respondents 2 and 3 remained absent and did not file any written state- ment.

64. FOLLOWING ISSUES WERE FRAMED:

(1) Whether the counting at the first counting was made improperly and irregularly as alleged by Respondent No. 1?

(2) Whether there was tampering with the ballot papers between the firsi count and the recounting? ilf so, to what eSect?

(3) Whether the allegations of tampering are vague and suffer from want ol necessary particulars, and are merely in the nature of inference? if so, its effect?

(4) Whether there was improper rejection by Returning Officer of any valid ballot papers alleged to have been cast for the petitioner in Gonda East Assembly Segment and in Gonda West Assembly Segment in the final counting? If so, how many ballot papers and if so its effect?

(5) Whether there was improper acceptance by the Returning Officer of any ballot papers in Gonda East Assembly Segment as valid votes in favour of Respondent No.,. 1 at the final counting? If so, of how many votes and its effect?

(6) Did the Returning Officer designedly and illegally refrain from completing the counting of votes in the night of February 28, 1962 in violation of Rule 60 of the Conduct of Election Rules, 1961?

(7) (a) Whether any improper rejection or acceptance of votes by the Return- ing Officer has materially effected the result of the election?

(b) Did petitioner in fact receive a majority of validi votes at the Election?

(8) Whether the counting agent of respondent Nos. 2 and 3 were nominated by Raja of Mankapur? If so, to what effect?

(9) Whether the petitioner having raised no objections at the recount in respect of the alleged improper acceptance or rejection of ballot papers by the Returning Officer, is now stopped from raising any plea against the decision of the Returning Officer on the rejection or acceptance of ballot papers?

(10) Whether there was any breach of official duty by the Returning Officer?

Has it materially affected the result of the Election?

(11) Whether the Returning Officer received anv directions from the Election Commission to withhold the declaration of the result of election? If so, whether such directions were lawfully issued and whether the declaration of the result was in breach of the provisions of the Constitution? If so, did it materially affect the result of the election?

(12) Whether the petitioner is entitled to be declared elected to the House of the People (Lok Sabha) from 34, Gonda Parliamentary Constituency?

(13) Whether the petitioner is entitled to any relief? If so, to what effect?

ADDITIONAL ISSUES:

(14) Whether the petitioner and Naurang Singh with the consent of the former promised to give gratification to K. S. Pathak with a view to induce the latter not to stand as a candidate at the election for the U. P. State Legislative Assembly from the Gonda North constituency as mentioned in paragraph 3((i) (a) and (b)'? ; !

(IB) Whether the petitioner and Shri Naurang Singh offered gratification to Siraj Ahmad with a view to stand as a Muslim candidate for election to U. P- Legislative Assembly from Gonda North Constituency as mentioned in paragraph 5(ii) (a) and (b)?

1

(16) Whether Naurang Singh with the consent of petitioner offered gratifica- tion to Mahadeo Prasad in order to induce him to stand as a candidate at the Assembly Election from Gonda North as mentioned in paragraphs 5(iU)(a) and (b)?

(17) Whether Naurang Singh with the consent and approval of the petitioner and with a view to impair the prospects of the Congress candidate at the elec- tion and gain advantage for themselves, distributed money to 300 voters with the stipulation that the latter would refrain from casting their votea?

(18) Whether on 9th February 1962 Naurang Singh and persons mentioned in Annexure II in the villages mentioned in paragraph 5(v) with the consent of the petitioner promised to pay money to voters to vote for the petitioner and Naurang Singh and,

Whether they paid the money after it was ascertained that voters had in fact so voted7

1

(19) Whether the petitioner and with hia consent Trilok Singh, Dasrath and Amar Nath Singh fed the voters in order to induce them to cast votes for the petitioner as mentioned in paragraph 5(vi)?

(20) Whether Naurang Singh with the workers and servants provided liquor to the scheduled caste voters with a view to induce the latter to vote for the Swatantra Candidate as mentioned in paragraph 5(vii)?

(21) Whether Raja Raghvendra Pratap Singh with the consent of the peti- tioner committed the corrupt practice of undue influence as detailed in Annexures 3, 4 and 9 to the recrimination?

(22) Whether the petitioner canvassed in the constituency on grounds of caste and community?

(23) Whether the contents of pamphlet in Annexure 5 was designed for appeal on grounds of caste?

(24) Whether the petitioner and Raja Raghvendra Pratap Singh with the former's consent, organised and performed a Yagna at Sarvan Pakar and addressed the public there appealing to them on grounds of Hindu religion to vote for the petitioner and not to vote for Ram Ratan Gupta who was not religious?

(25) Whether the allegations made about the personal character of R. R. Gupta as mentioned in paragraph 21, were false in the knowledge of the petitioner and which, he had no reason to believe to be true and had every reason to believe it to be false?

(26) Whether Abdul Rahim Khan was an agent of the petitioner, and

Whether the statements in leaflets mentioned in paragraph 22 amounted to allegations against the personal character and conduct of R. R- Gupta which were published and which the petitioner and Budhu Khan knew to be false and did not believe to be true?

(27) Whether the weekly paper Nagrik mentioned in paragraph 23 was pub- lished in Gonda Constituency, contained false statement regarding personal character and conduct of R. R. Gupta which the petitioner did not believe to be true and believed them to be false?

(28) Whether the petitioner committed the corrupt practice under section 123 (5) as mentioned in paragraph 24?

(29) Whether the petitioner got the votes of dead and absent electors cast in his favour through impersonation as mentioned in paragraph 25?

(30) Whether the petitioner has committed corrupt practice as defined In section 123 (6) as mentioned in paragraph 26?

(31) Whether the petitioner is liable to be disqualified for having committed corrupt practices in relation to election?

    (32)  Whether  the  Tribunal  has  jurisdiction  for  the  purposes  of  the  petition
to  investigate  the  question  of  alleged  tampering     of  the   ballot  papers  and  set
aside  the  decision  of  the  Returning  Officer?
    65.  FINDINGS
       Issue  No.  1                                     No.
       Issue  No.  2                                      Yes.
       Issue  No.  3                                     No.
       Issue  No.  4                                      Yes.
       Issuer1 No.  5 Yes.
       Issue  No.  6                                      Yes.
       Issue  No.  7 (a)                                  Yes.
       Issue  No.  7(b)                                   Yes.
       Issue  No.  8                                      No.
       Issue  No. 9                                       Petitioner  is  not  estopped.
       Issue  No.  10                                     Yes.  Yes.
       Issue  No.  11                                     Yes.  Yes.  Yes.
       Issue  No,  12                                     Yes.
       Issue  No.  13                                     As  stated.

ADDITIONAL ISSUES

Issue No. 14 Issue No. IB Issue No. 16 Issue No. 17 Issue No. 18 Issue No. 19 Issue No. 20 Issue No. 21 Issue No. 22 ' Issue No. 23 Issue No. 24 Issue No. 25

Issue No. 26

Issue No. 27

No. No. No. No. No. No. No. No. No. No. No. No. Not proved. Does not arise. No. The statement of leaflets men- tioned in Para, 22 do not amount to allegations against the personal character and con- duct of Ram Ratan Gupta. Does no arise. Respondent No. 1 failed to prove that the contents of Weekly Paper Nagrik regard- ing his personal character and conduct were false. The petitioner had nothing to do with the publication and distribution of the Nagrik dated 6-2-62 and 13-2-62.

Issue No. 28 Issue No. 29 Issue No. 30 Issue No. 31 Issue No. 32

.. No. No. No. No. Yes.

REASONS FOH THE ABOVE FINDINGS

68. Issue No. 1.

This issue was framed on the allegations made by Respondent No. 1 in para- firaphs 21(lv) to 21 (vii), 21 (ix), 21 (xi), 21 (xiii), 22(i) and 22(Ii) of his written statement.

The allegations in brief are aa follows: —

(i) The counting staff not only did not discharge their duties properly, but some of them abused the opportunity and acted in the interest of the petitioner.

(ii) The combined office, in whiah the counting of Gonda East and Gonda West segments was done was not sufficiently large as a result of which there was overcrowding, on account of which the counting agents could not keep a watchful eye on the actions of the counting staff.

(iii) The counting agents could not verify "whether the sorting done by the counting staff for determining the valid and invalid votes were being currectly done.

(iv) There was also insufficient light in the combined office and, in the result, invalid and doubtful votes got mixed up and were put In with valid votes and some valid votes were excluded from counting.

(v) There was large scope for deliberate mischief as well as for inadvertent mistakes by the counting staff.

(vi) The petitioner through his powerful supporter, the Raja of Mankapur, availed 'of the opportunity, whereby the counting clerks counted the invalid votes in favour of the petitioner and omitted to count the valid votes in favour of the Respondent No. 1.

(vii) Complaints about the insufficiency of light, about over-crowding and about want of proper accommodation were made to the Assistant Returning Officer (A. S. Misra). He arranged for better lighting, but was unable to do anything about the want of proper accommoda- tion.

(viii) The A.R.O. did not take the decision himself in the matter of rejection or acceptance of the doubtful ballot papers but left the decision in most cases to the counting clerks, supervisors or the Assistants sitting by his side. The Assistant Returning Officer mechanically put his initials on the seals fixed by the Assistants on the reverse of the ballot papers.

67. The burden to prove the above allegations rested entirely on Respondent No. 1.

Under Section 114 Illustration (e) of the Evidence Act, the presumption is that "judicial and official acts have been regularly performed".

The dates of polling for election to the Vidhan Sabha and Ltok Sabha and the- dates for counting the votes of the polling stations of Gonda East and Gonda-

North, Gonda West, Mankapur and Mahadeva have been stated in paragraphs 6 and 8 of the judgment. For convenience 'of reference, it is re-stated as below: —

SEGMENTS OF 34 GONDA PARLIAMENTARY CONSTITUENCY

Si

A. R. O.

imc of

egment

Name of Assembly candidates (SP)

1.

Date of recounting

Date of m counting

27.2.1962

10.3.1963

R. P. Singh

Naurang Singh

2,

27.2.1962

Ragho Ram Pande A. S. Misra

10.3.1962

."•

11.3.1962

28.2.1962

9.3.1962

28-2.1962

Gonda North Gonda East Gonda West Mahadeva

Capt. Ram Garid. Baldeo Singh A. S. Misra D. S. Shukla

4-

(P. S. 1 to 70)

10.3.1962

(P. S. 71 to 90)

Mankapur

.5-

9.3.1962

28.2.1962

S. R- Misra

Raja Raghvendra Pratap Singh

68. Ex. P. 14 is a notice which was issued on 10th February 1962 bv R. B. Johri, who was the District Election Officer, Gonda. By this notice, the candidates were intimated that the postal ballot papers of Gonda Parliamentary Constituency were Toe counted and the result of polling of all the polling stations consolidated at the Collectorate, Gonda on 28th February 1962 at about 10 p.m.

It is not disputed that the sorting of ballot papers and counting of votes of Gonda East and Gonda West Segments of the Parliamentary Constituency was •done in the combined office on the dates already mentioned.

It is also not disputed that 16 counting tables were arranged in this combined olfice and that at each Counting table, there were two counting clerks, one count- ing supervisor. The A.R.O.'s table was facing the counting tables.

It cannot be disputed that the A.R.O. before counting commenced Instructed -the counting staff the manner of sorting and the procedure that was to be follow- ed by the counting staff in respect of doubtful ballot papers.

69. Ex P. 160 is the Hand Book for Returning Officer. Procedure for counting Is laid down in Rule 15 Under Chapter VIII with Illustration for the arrangement •of the tables for seating the counting clerks, counting supervisors and other staff- Rule 15 (e) casts a duty 'on the Returning Officer to train the counting assis- tants in disposing of doubtful ballot papers, so that an unnecessarily large number of them is not kept in the doubtful group.

Under Rule 15 (k) the Returning Officer i.e. A.R.O. has to scrutinise each ballot paper in the doubtful bundle.

The manner of scurtiny and rejection is laid down in Rule 15(k) (i) to (iv). The rejection is to be marked as follows: —

(1) R.N.M. (Reject—No marking).

(ii) R.M.B.A. (Reject—Mark on blank area),

(iil) R.M.V. (Reject—Multiple voting),

(iv) R.V.I. (Reject—Voter identifiable).

(v) R.M. (Reject—Mutilated),

(vl) R.N.G. (Reject—Not genuine).

There Is further direction that when finally rejecting any ballot paper, a reason- able opportunity to inspect it is to be given to the candidate or his agent, who • desires) to do so.

70. "The combined 'office at Gonda, where the counting was done was inspected by me on 14th December 1963. I have drawn a rough sketch of the combined office notinK liflht points and the doors fitted to this room. The room measures 20' East-West and 35' North-South. The open verandah is on the East. The rtfofs on this verandah are supported by arches, three of which are directly in front of this combined office. They are 11 feet in height and their span is 9'—1J". The doors fixed to this- room are of fairly large size. The panels of these doors have glass panes throughout from a height of 3'—3" from the bottom. These doors have also arches over them which have glass panes. There are two sky lights In the Eastern wall of the combined office. The light in this room comes mostly from Eastern side. The sketch map and my report is on record.

71. Hespondent No. 1 has examined Rama Nath Misra (R.W. 1), Mujtaba Husain , (R,W. 2), Sheo Bahadur (R.W. 3), Achhutanand Tripathi (R.W. 4), Parmanand Agnihotri (R.W. 6), Bhagwati Prasad (R.W. 14), Kali Chander Johrl (R.W. 19) and Krishna Madho Saran (R.W. 20) in support of his allegations.

Rama Nath Misra (R,W. 1). is the Election Agent of Respondent No. 1. He has deposed that the natural light in this room could come only from the Eastern side, On the eastern side there is a verandah, which was covered on the day of counting by Kanats. Inside the room, there were two light points hanging from ^the celling—one near the table of the A. R, O. and the other in the middle of the -*-oom. The bulbs were of small watts—may be 25 or 40 watts.

He goes on to say that he and other counting agents complained to the A. R. O.

No. 16.

about the insufficiency of light and over-crowding. Some of the counting clerk* also were murmuring about insufficiency of light. He says that the A. R. O. -asked Sri Burk to send 'for extra high power bulbs and for petromaxes. In spite of this requisition, no change in the lighting arrangement was made on 27-2-1962. Mujtaba Husain (R. W. 2) was the counting supervisor. He was at table 1 Sheo Bahadur (R. W. 3) was also a counting supervisor. He was at table No. 2.

!

Achhutanand Tripathi (R. W. 4) was a counting clerk at table No. 11.

Parmanand Agnihotri (R. W. 6) was counting agent of Respondent No. 1 on 27-2-1962 and 28-2-1962 for Gonda East and Gonda West Assembly Segments. He attended the counting in this combined office.

(

Bhagwati Prasad (R. W. 14) was the counting agent of Gomti Prasad Yadav, who was a candidate for U. P. Assembly Seat. He also attended the counting in. the combined office.

;

The above named witnesses have deposed that the combined office was lighted ronly by two Electric bulbs and they found the light in the combined office in- sufficient during the counting of the votes.

72. Rama Nath Misra (R. W. 1) in his cross-examination (Paragraph'60) says that on conclusion of counting of Gonda West constituency, he had a complaint in mind that the supervision at the counting tables by the counting agents was not satisfactory on account of congestion. At that time he had no other complaint.

On 27-2-1962, he made oral complaint to the A. R. O. (A. S. Misra) at about ' 12 noon about the congestion and insufficiency of accommodation for the counting agents, but the A. R. O., though he fully realised the difficulty, expressed that he could not change the place as all other places were occupied for counting of other segments.

1

There is nothing on record to show that he made any written complaint to the A. R, O, regarding the insufficiency of light.

Mujtaba Husain (R. W. 2) also admits in his cross-examination that he did not make any complaint in writing to the A. R. O. about the insufficiency of light nor did Sheo Bahadur (R. W. 3), Achhutanand Tripathi (R. W. 4), Parmanand Agnihotri (R. W. 6) made any complaint oral or in writing about the insufficiency of light, 1

(

73. Ex. P. 3 Is the application filed by Respondent No. 1 for recount. Various grounds have been mentioned therein for recounting of the votes, but insufficiency of light was not made a ground. 1

|

I sent for the record of the writ petition No. 81 of 1962—Ram Ratan Gupta vs. Election Commission of India—filed before the High Court of Judicature at Allahabad (Lucknow Bench). This writ petition was moved by Respondent No. 1 to prevent the Chief Election Commissioner, Sri K. V. K, Sundaram from hold- ing immediate enquiry against the Returning Officer and other election staff.

In this writ petition of the Respondent, various grounds of irregularity have been alleged, but insufficiency of light was not one of them,

I find that there was sufficient light in the combined office on 27-2-1962 and 28-2-1962 when the ballot papers of Gonda East and Gonda West were sorted, scrutinised and the votes counted.

'

74 V B Bhadkamkar (P. W. 2) is the Election Agent of the petitioner. He deposed that no o ne complained that light in the combined office was not suffi- I cient. '

Dashrath Prasad Shukla (P. W. 4), who was the counting supervisor at table No & in the combined office has deposed that there was sufficient light in the room and the fixing of kanats to the Elastern verandah did not darken the room.

In my opinion, this is correct as the verandah arches are 11' in height while, the kanats are usually 6' in height leaving sufficient space for the light to cornel from the East to the combined office. i

i

Bahadur Singh (P. W. 5) was counting clerk at Table No. 2. He says that the light in the room on 27-2-1962 and 28-2-1992 wa3 the same. No bulbs were changed on 28-2-1962.

Ram Newas (P. W. 6) was counting clerk at table No. 16. He has deposed t h a t t h e re was sufficient light at all times on 27-2-1962 and 28-2-1982.

In his cross-examination he asserts that there was enough light in the room Irrespective of electric lights. He did not see any change in the light on 28-2-1962.

I see no reason to disbelieve the above witnesses.

75 Rama Nath Misra (R. W. 1) in his cross-examination admits that he did not know the counting staff at the time of counting. Therefore, he cannot say what counting clerks were doing the work of sorting and counting at the various tables.

!

Mujtaba Husain (R. W. 2) was the counting supervisor at table No. 16. He has stated that Ram Newas (P. W. 6) was not a counting clerk at his table on 27-2-1962 and 28-2-1962.

I

In his cross-examination, memory test was applied to him, When ho was asked about the second counting clerk at his table, he could not give his name.

Similarly, Sheo Bahadur (R. W. 3), who was counting supervisor at table No. 2 has come forward to state that Bahadur Singh (P. W. 5) was not a counting cierk with him, but when questioned in his cross-examination, he could not give the names of the counting clerks working at his table.

The above-named Government officials who have been examined by the Res- pondent No. 1 have been influenced and are evidently telling lies,

76 I sent for the record from the District Magistrate Gonda in this connection In thp appointment order, names of Deshrath Prasad Shukla fP.W. 4), Ram Newas (P.W.* 6), Hanuman Prosad (P.W. 7) appear in the list. The appointment order shows that these clerks were appointed as counting assistants for counting of votes of Gonda East and Gonda West Segments on 27th February 1062 and 28th February 1962. Their initials appear against their names.

It is, therefore, abundantly clear that they acted as counting assistants on the relevant dates in the combined office of Gonda Collectorate.

Fermanand Agnihotri (R.W. 6) in paragraph 15 of his deposition says that the Election Inspector had a chart from which he allotted the tables to various counting clerks and supervisors.

Bhagwati Prasad (R.W. 14) also says in paragraph 13 of his deposition that A.R.O. (A. S. Misra) had read out from a chart the allotment of tables naming the counting clerks and supervisors who were to work on the respective tables.

From their evidence, it is clear that the chart for seating arrangement of the counting staff was prepared allocating the tables to different counting clerks. "This chart was sent for from the Returning Officer, Gonda, but it was not pro- duced. Information was Riven that such a chart was not maintained, although a similar chart was prepared at the time of recounting.

It appears to me thaL the chart of the first counting of Gonda East and Gonda "West has been suppressed.

I am satisfied that Daahrath Prasad Shukla O'.W. 4), Bahadur Singh (P.W. 5). Ham Newas (P.W. 6) and Hnnuman Prasad (P.W. 7) did the counting in the combined offic? on the relevant dates.

I see no reason to disbelieve their testimony that there was sufficient light in the combined office on 27-2-1962 and 28-2-1962.

77. Respondent No. 1 sought to support the allegations about insufficiency of light by correspondence dated 27-2-1962 between Shri Burk Kali Chander Johrl, Nazir Sadar, Maqbool Husain, Election Inspector and. Krishna Madho Saran, Treasury Officer, Gonda, appearing on a scrap of paper (Ex. R. 76).

There is nothing on record to show that A. S. Misra, Assistant Returning "Officer directed Sri Burk to make arrangement for lights. Sri Burk has not been •examined by Respondent No. 1.

Kali Chander Johri (R.W. 19) admits in his cross-examination that he had -nothing to do for providing lights for counting in election. From his further •cross-examination as well as from the cross-examination of Krishna Madho Saran (R.W. 201, it is abundantly clear that this correspondence (Ex, R, 76) has been fudged up at some later date in order to support the allegations of Respondent No. 1.

This conclusion finds support from the fact that no written complaint whatso- ever was made by Rama Nath Misra (R.W. 1) or any one on behalf of Respondent No, 1 alleging insufficiency of light in the combined office.

78. Rama Nath Misra (R.W. 1) hag stated in paragraph 14 of his deposition that it was absolutely impossible for any counting agent to see as to what actually was going on, at the counting tables. Due to the rush and congestion, It was not possible for six counting agents to see what was going on at these tables. In fact, a counting agent was practically stuck where he was. ' Due to the paucity of space, the counting agents were either sitting¹ on those benches or were stand- ing in between th^ two tables. It was not possible for them to move freely and see as to what was going on at the counting tables.

He goes on tr> say in paragraph 60 of his deposition that on 27th Fezruary 1962,

t . Ki ,1 i-'joa H—

I find that there was no over-crowding in the combined office at the time of staff C hampered the work of counting agents or the counting.

80 Respondent No. l's own witness Bhagwati Prasad (R.W. 14) acted as a counting agent for Gomti Prasad Yadav at the combined office. His evidence is very revealing m paragraph 9 of his deposition. He has stated that he was busy In watching the counting that was going on on the counting tables 1 2 3 About two and a half hours were taken for sorting and counting of the ballot papers of SEShJS * During this period the supervisor of that table kept watching the K ™ f ^ I T *^ °^ by t he C ⁰ UPt i nS clerks. The supervisor was continual- done corcerfl t S ³y w h e t h er t he s o r t i n£ a nd counting were being

The witness himself was watching the sorting and counting done by the .-ount- uiff clerks and he was satisfied that this was done correctly

In paragraph 10 ho says that he did not make any complaint whatsoever to any " body regarding the sortintr and counting done by the counting clerks and super-

SsSnuS u%, r / s rs i^ssr¹¹ of the rounting ™de on ²⁷-²-¹⁹⁶²-Xh-

He further says that to his knowledge, the counting clerks on counting tables 3Nos|, 1, 2, 3 and the supervisors on the said tables did not commit any mistake in sorting and pounting and supervision of the ballot papers.

The evidence of Rama Nnth Misra (R.W. 1) that the counting agents were- stuck at their .pest on account g£ over-crowding ar,d therefore could not check- ,tne sorting—cannot be believed,

81. Rama Nath Misra (R.W. 1) in paragraph 15 of his deposition has i?l#t"d' about the procedure followed by the counting staff when the counting commenced.. He saw them incorporating the Assembly votes of pink colour in Parliamentary votes of white colour (obviously he means the ballot papers). Then he saw; thenS putting the ballot papers into the trays of the candidates, which they considered valid and the ballot papers which they thought rejectable were taken to the A.R.O. (A. S. Misra). He says that the votes which the counting clerks con-, sidered a g valid were never taken to the A.R.O, - • • • •- •*.

fii paragraph 17, he says that ih§ reieetablg baiiot papers which were brought fcy the counting clerks to the tabltt of the A.R.O. were being stamped as R.N.M., R.M.B.A. or R.M.V. by those Assistants to the A.R.O. The A.R.O. did not put these stamps himself. .Alter these ballot papers were thus stamped, they were placed before the A.R.O. by the assistants in bunches and he used to sign them mechanically.

Rama Nath Misra (R.W. 1) is evidently wrontr when he says that the re- jectable ballot papers were taken by the counting clerks. In fact, the rejectable ballot papers were always taken by the counting supervisors to the A.R.O. for his decision [vide depositions of Mujtaba Husain (R.W. 2) and Sheo Bahadur (R.W. 3)1. They were counting supervisors.

82. Rama Nath Misra (R.W. 1) has been contradicted by Respondent No. l's own witnesses Muitabu Husain fR.W. 2). Sheo Bahadur (R.W. 3), Achhutanand Tripathi (R.W, 4), Parmanand Agnihotri (R.W. 6) and Bhagwati Prasad (R.W. 14).

Mujtaba Husain (R.W. 2) in paragraph 12 of his cross-examination says that the doubtful ballot papers which ho took were handed over to the A.RO. (A. S.. Misra). The A.R.O. used to take them by his own hands. But he does not re- member whether every time that he took the ballot papers to the A.R.O.'s table,, he handed them to the A.R.O. Dersonally or not. He cannot say whether the A.R.O. himself looked into the doubtful ballot papers when ho handed them over to him,

In paragraph 13 of his cross-examination, he says that he knows the duty of the A.R.O. who is to give decisions on ballot papers as to whether they or any of them were to be rejected or not. If A.R.O. says that he gave his decisions- on all doubtful ballot papers about their rejectability, it will not be incorrect..

Sheo Bahadur (R.W. 3) has deposed that he used to take the rejectable. ballot papers both of Parliament and of Assembly to the table of the A.R.O. and there used to hand them over to the assistants of the A.R.O. sitting by his Side. The asststWts used to stamp appropriately the rejectable votes, then,i

aiter placing them before the A.R.O. and obtaining his initials, those ballot papers were returned to him. He then used to go back to his table, where the counting clerks mude out bundles of 50 each of the ballot papers candi- date-wise and also of thf rejected ballot papers and tied them with thread. Thereafter, he used to make the entries in Form lti.

PaSrmanand Agnihotri (R.W. 6) says that supervisors used to take the ballot papers of that tray to the table of the A.R.O. and the assistants of the A.R.O. used to stamp appropriately those baUot papers. Then A.R.O. used to put signatures on them.

Dashrath Prasari Shukla (P.W. 4) was also a counting supervisor. He has stated about the procedure which was followed for sortinc the ballot papers and the decision of the A.R.O. on doubtful ballot papers (vide para. 7). This is according to the rules given in Ex. P. 160 mentioned in paragraph 68 of the judgment.

/ ,",^

Bahadur Singh (P.W. 5 was the counting clerk. He lira's stated in para- graph 20 of his deposition that instructions were issued in Hindi by A.R.O. for conducting the counting. He also gave oral instructions and ..that the counting clerks did the counting according to the instructions given"-te them •orally as well as in writing.

•:

Bahadur Singh (P.W. 5) Is corroborated by Ram Newas (P.W. &)" and Hanuman Prasad (P.W. 7).

Their testimony is supported by the affidavit Ex. F, 136 of A.R.O.: (A.S. .Misra), quoted below:—

Paragraph 3—

T h at with regard to the allegations contained in para. 8 of the petitioners writ petition it is admitted that the counting was being done by clerical staff under the supervision and direction of the Assitt. Returning Officer. The counting agents of the various candidates were permitted to remain at the place where the counting was being done. The procedure was that if any objection was taken to the validity of any ballot paper by any of the counting agents or if the validity of any ballot paper was in doubt the said ballot paper was brought to the decision of the Asstt. Returning Officer who gave his decision after scrutiny of the ballot paper and if he invalidated it, he put down the reasons for the same. In regard to ballot paper whose validity was not disputed by any person the counting assistants used to set them apart in separate bundle for coun- ting. Some counting assistants were made to sit near the table of the Asstt. Returning Officer. They also put rubber stamp of rejection of ballot papers after the Asstt. Returning Officer had given his decision. This was done with a view to expedite the counting. The other allegations of this paragraph are in- correct.".

Testimony of petitioner's witnesses mentioned above is supported by the evidence of Respondent No. Vs witnesses named above regarding the pro- cedure followed in counting and scrutiny of the ballot papers and the rejec- tion of the doubtful ballot papers by A.R.O. (A. S. Misra).

83. It is clear that the decision on the doubtful ballot papers was given by the A.R.O. himself in respect of those which were objected to by the coun- ting agents and the other rejcctable ballot papers, regarding which there was no objection, the assistants used to put the scale for rejection after the A.R.O. had given his decision.

In my opinion, the initial of the A.R.O. on the seals giving¹ grounds for rejection is by way of assurance that It was scrutinised by the A.R.O. and that he Rave his derision thereon. There is nothing illegal in fixing his initials on the decision. No written objection was made by Rama Nath Misra (R.W 1) or any one on behalf of Respondent No. 1 so far as counting In the com- bined office was concerned where votes nf Gonda East and Gonda West seg- ments were counted.

There is no substance in the allegation made by Respondent No. 1 that there was no scrutiny or decision by A.R.O. regarding the doubtful ballot papers.

84. The other allegation of Respondent No. 1 is that the counting staff not only did not discharge their duties properly, but some of them abused the opportunity and acted in the interest ol the petitioner, as they were unaer the Influence of Raja Sahib Mankapur.

Rama Nath Misra (E.W. 1) has stated that Raja Sahib of Mankapur visited the counting room twie-? and he went inside the room once with him. He further says that Raja Sahib was not stopped from entering the room, but on the contrary he was greeted bv the constables at the Kate and inside the room by some of. tha counting clerks.

Mujtaba Husain (R.W. 2) says that on each of the two counting days, Raja Sahib, Mankapur had also come to tho counting hall and those workinO' in the counting hall as counting clerks or counting supervisors saluted him.

In his cross-examination, he says that he did not salute the Raja Sahib and he could not say about the counting clerks at this table whether the:'i saluted him or not.

Sheo Bahadur (R.W. 3) says that he had seen Raja Sahib Mankapur and and Thakur Baldeo Singh in the counting hall.

Achhutanand Tripathi (R,W. 4) also speaks of having seen Raja Sahib Mankapur in the counting hall on 27th February, 1962 and 28th February 1962, He asserts that Raja Sahib Mankapur did not come in the counting hall, as he was in Gonda North Shamiana as counting agent of Naurang Singh, where the votes of Gonda North Segment were being counted on 27th February, 1962.

Parmanand Agnlhotrl (R.W. 6) and Bhagwatl Prasad (R.W. 14) also say that they saw Raja Sahib Mankapur visiting the counting hall. As against this there is evidence of V. B. Bhadkamkar (P,W. 2), who asserts that Raja Sahib Mankapur did not come in the counting hall.

He is corroborated by Bahadur Singh (P.W. 5) and Ram Newas (P.W. 6).

Raja Raghvendra Pratap Singh was the Assembly candidate from Mankapur. Mankapur segment was counted on 28-2-1962. It is highly improbable that he will leave his own segment while the counting of his votes was on and come to the combined office on 28-2-1962 when dunng the counting of Gonda West Segment.

According to V. B. Bhadkamkar (P.W. 2) Raja Sahib was in the Shairdana as agent of Naurang Singh where Gonda North was ibeing counted on 27-2-1962,

The evidence of Respondent No. l's witnesses is directly contradictory by the affidavit Ex. P. 13G filed by A. S. Misra in the Writ Petition. Para. 5 is quoted below:—

"That with regard to the allegations contained in para. 10 of the petitioner's writ petition it is stated that no unauthorised person was permitted to remain Inside the place where the counting was being done. It. is correct that the place was a bit crowded. It is quite incorrect that any Government staff working there was under the influence of Raja of Mankapur or Raja of Mankapur was freely moving or talking aside the counting staff. The other allegations of this para are also denied".

85. Rama Nath Misra (R.W. 1) has stated In paragraph 15 of his deposition that when the ballot boxes were supplied at the counting tables, the counting clerks separated the Assembly votes of pink colour and Parliamentary votes of white colour. Then they put ballot papers into the trays of the candidates which they considered valid and the ballot papers which they thought rejectable were taken to the table of the A.R.O. The votes which the counting clerks considered as valid were never taken to the A.R.O. and that it was Impossible for the country agentq to see in that mele as to what type of Dapers the counting clerks were taking aa valid votes. The counting agents could not see as to what was going on on the tables.

In Ir.s cross-exnminption, a direct question was put to Rama Nath Misra (R.W. 11 in the following form:—

Question:-—Is it a fact that you did not make any complaint on 27th or 28th February 1962 to A.R.O. about the counting of Gonda East and

Gonda West respectively about wrongful acceptance of votes and wrongful rejection of votes?

The answer given by Rama Nath Misra (R.W. 1) was ixs follows:—

"I did not make any complaint in writing to the A.K.O. about the ballot papers which the counting; clerks Included as valid votes for any particular candidate although they were obviously rejectable due to multiple voting because such ballot papers never reached the table of the A.R.O. for any scrutiny. The counting agents had no oppor- tunity to carefully watch as to what was going on on the tables of the counting clerks. I did express my apprehensions about the cor- rectness of the counting which was not being checked by counting agents because of there being no facility to do so. Unless I would have seen anything myself. [ could not make such a serious complaint, 1 could not possibly reach the counting tables due to congestion and therefore I could not see as to what was going on the counting table".

It is clear from his answer that he had no personal knowledge if rejectable votes due to multiple marks were kept in the valid votes of the petitioner or any other candidate.

83. Respondent No. 1 as well as the petitioner have examined some of the counting clorks and also counting supervisors who were engaged in counting the votes of Gonda East and Gonda West Segments in the combined office on 27-2-1962 and 28-2-1962.

Muitaba Husain (R.W. 2) was the counting supervisor at Table No. 16. He says that before the counting commenced, A.R.O. explained the rules. In para 0 of. his deposition, he asserts that he and the other two counting clerks at his table did not do any wrongful act in connection with the counting on account of the alleged influence of Raja Sahib, Mankapur.

•< In paragraph 9 of his deposition, he admits that the work of sorting included the work of deciding which ballot papers were doubtful and were to be put in t-hje tray of rejectable ballot papers. He also admits that while these two counting clerks were engaged in their sorting work, he used to watch their work to see that no mistakes were committed. Only once or twice he found one or the other counting clerks committing a mistake or two which he immediately corrected.

He asserts that form No. 16 (Ex. R. 188/1) in respect of polling station 16 was taken to the Tahsildar by Bajrangl Lai. The corrections in part II of the above form were made in the presence of Tahsildar and signer by Bajrangi Lai,

From the above evidence, it is clear that invalid votes were not placed in the bundles of valid votes of any candidate and there was rechecking after the valid votes and rejected votes were put in bundles.

87. Sheo Bahadur (R,W. 3) was the supervisor at Table No, 2. In paragraph 7 of his deposition, he has made it clear that he watched the two counting clerks whether they were sorting correctly or not and whether ,in\ ovic *va,7 putting up disturbance in their work or not. He further says that if and when any mistakes were committed by the counting clerks and detected by him, he used to get such mistakes rectifk'd.

He further admits in paragraph 8 of his deposition that he acted fully in accordance with the prescribed instructions and rules laid down as instructed by the A.R.O.

In paragraph 10 of his deposition he makes it further clear that all the deci- sions of the A.R.O. on the doubtful ballot papers and form No. 16 used to be filled in by him and the work of taking the ballot paper packets and the Form No. 10 was also done by him, He further says that the work of counting was completed when a supervisor had taken the ballot paper packets and the Form No. 16 to the Tahsildar for checking and rectification after checking of any error, if found. Thereafter, when supervisor returned to his counting table. Ihe ballot boxes of another polling stations wore brought in to that table.

88. Achhutanand Tripathi (R.W. 4j was the counting clerk at Table No. Ii. In Para 14 of his deposition he says that to his knowledge, there was no- ^complaint made by any of the counting agents of wrong sorting and counting.

He assarts "we did not make any wrong sorting and counting intentionally or dishonestly".

Bhagwati Prasad (R.W. 14) was the counting agont of Gomti Prasad Yadav, a candidate of the Socialist party for Assembly seat from Gonda East Segment. He was present at the counting in the combined office on 27-2-1962, He was in charge of tables 1, 2, 3,

In paragraph 5 of his deposition, he states that he was watching the sorting and counting being clone by the counting clerks and the supervision by the supervising clerks in respect of ballot papers of both Parliament and Assembly Segments.

In paragraph 10 he says that to his knowledge, the counting clerks on count- ing tables ]. 2, 3 and the supervisor on the said tables did not commit any mis- take in sorting and counting and supervision of the ballot papers.

89. Dashrath Prasad Shukla (P,W. 4) was counting supervisor at table No. 9 when the ballot papers of Gonda East and Gonda West segments were counted in the combined office on 27-2-1962 and 28-2-1962. He says that before the commencement of counting, A.R.O. instructed the counting clerks orally how to. proceed and that they were to do the work carefully. If any counting agen** raised any objection about a ballot paper, it was placed forthwith In the tray of doubtful ballot papers. In this he Is corroborated by P.W. 6.

In paragraph 7, he is explicit that the work of sorting was being done very^ carefully. The doubtful ballot papers, he himself took to A.R.O,, who' examined them, and handed him over the ballot papers which he declared valid. The other ballot papers, he gave to his assistants, who were sitting near his table for affixing the seals. Thereafter, the A.R.O. used to initial the seals and then give them to him. He waited at the table of the A.R.O. till the above process was completed. On receiving the valid ballot papers as well as rejected ballot papers, he returned to his table. He then placed the rejected ballo^ papers in the tray of "Rejected Ballot Papers" and then distributed the valid ballot papers to the tray of the respective candidates in whose favour it was declared valid.

He was given ballot boxes of polling stations Nos. 25, 41, 57, 73 on the 2nd, 3rd, 4th and 6th round.

He was also counting supervisor of Gonda West Assembly Segment, when this counting took place on 28-2-1962 in the same room, He was at the same table No. 9. He counted the ballot papers of polling stations Nos. 9, 25, 41, 57 and 73 of Gonda West constituency. He says that the same procedure of counting was observed as was done in the counting of Gonda East Segment (inde para 10). •-,

In paras 8 and 9 of his deposition, he has given the details of the further steps taken by him for completing the counting as quoted below:—-

Para 8. "It used to take about ljj hours to complete the counting of one pol- ling station in the manner stated above. After coming back to my table, the valid votes were counted in the packet of 50 each of differ- ent candidates respectively. I prepared the bundles of the rejected votes also into the packets of 50 each. After completing the counting of one polling station, the entries in Part II of Form No, 16 was made forthwith for that polling station. The entries in 2nd coloumn in part II of form No. 16 depicted the figures are in my handwriting. In Ex. P. 108/1 to Ex. P. 108/5 the entries are made by me."

Paca 9. "Aifter completing the entries in form No, 16 I used to go along with the packets of valid votes and rejected votes and handed over to the two officials¹ who were sitting at a table near the table of A.R,O. I waited there for their checking so that I may rectify the mistaken if pointed out by them. They used to check the ballot papers. They used to scrutinise if any votes of other candidates were wrongly "out into the bundle, I have 'made the corrections in Form 16 of polling station No. 9 (Ex. P. 10811). In the form of polling station No. 25 (Ex. P. 108]2) the corrections have been made bv my counting assist- ant (clerk). In the form of polling station No. 41 (Ex. P. 108|3) the correction is made by me. So also, in the form of the poll in 3 statiop No. 57 (Ex. P. 108)4). The correction in the form of polling station No. 73 has been made by my associate. I cannot say whether these

corrections were made by me or by my associates' at our Instance or at the instance of the cheeking authority".

It is clear from his evidence (vide para ,'j) that US ballot tuxes of. polling sta- tions 1 to 10 were issued at each round for the 16 couniivig tables. "When one round 01 counting was complete, the next 16 polling stations were taken up till all the polling stations were completed,

90. Ballot papers (Ex. P. 5.V1 to Ex. P. 55/63) of pulling station 41 of Gonda Eaat Segment were shown to him, and he asserts that it was not possible for him to have counted 63 ballot papers as valid votes for the petitioner which had mul- tiple marking on them.

Ballot Papers (Ex. P. 68/1 to Ex. P. 68/54) of polling station 57 of Gonda East were shown to him. He is deftnite that it was impossible that he would have passed 54 ballot papers as valid votes for Dandekar if they bore multiple marks on them.

Ballot Papers Ex. P. 75/] to Ex. P. 75/18 of polling station 73 of Gonda East were shown to him and ho asserts that it wag never possible for him to pass 19 ballot papers with multiple marks as valid votes for Dandekar.

Ballot papers (Ex. P. 80/1 to Ex. P. 86/23) of polling station 25 of Gonda West were ahown to him and he stated that he would never have passed ballot papers • with multiple marks as valid votes for Dandekar from this polling station.

Ballot papers Ex. P. 89/1 to Ex. P. 89/2 of polling station 41 of Gonda West were shown to him and he stated that he would never have passed ballot papers with multiple marks as valid votes for Dandekar in this polling Station. The . above ballot papers were held valid for petitioner in the first counting but rejected as "R.M.V." on recount as they were found to contain multiple voting marks.

Similarly, ballot papers Ex. P. 75/19 to Ex. P. 75/25 of polling station 73 of ' Gonda East were shown to him and he stated that he would not have placed these ballot papers in the tray of doubtful ballot papers had there been a voting mark in the cage of "BULLS" symbol in that.

Ballot papers Ex. P. 89/26 to Ex. P. 89/36 of polling station 41 of Gonda West were shown to him and he says that had there been voting marks in the cage of "BULLS" symbol, he would not have put them in the tray (for doubtful ballot •papers.

Ballot Papers Ex, P. 95/3 to Ex. P. 95/6 of polling Station 57 of Gonda West were shown to him and he stated that he would not have put into the tray of doubtful ballot papers had there been the voting marks on them in the "3ULLS" cage at the time of counting. These ballot papers were rejected at the 1st count by the A.R.O. as there was no voting mark or voting! mark in) blank area. On the reverse of these ballot papers there is rubber stamp seals "R.N.M." or "R.M.B.A." initialled by the A.R.O. At the recount, these ballot papers were found to have been in the "BULLS" cage. They were held valid for congress by the Returning Officer.

He never counted a ballot paper with multiple marks as a valid vote for any candidate. In this he is corroborated by Respondent No, l's own witness Bhag- wati Prasad (R.W, 14).

Ballot papers Ex. P. 50/1 to Ex. P. GO/33 of. polling station 18 of Gonda East were shown to him and he stated that he did not count ballot papers with multiple marks as valid votes for Dandekar.

Similarly, ballot papers Ex. P. 52/1 to Ex. P, 52/112 of polling station No. 34 of Gonda East, ballot papers Ex. P. 64/] to Ex. P, G4/76 of Polling Station No. 50 oi Gonda East, ballot papers Ex. P. 71/1 to Ex. P. 71/34 of polling station 66 of Gonda East were shown to him and he stated that he never counted the above- mentioned ballot papers with multiple marks as valid votes for Dandekar, The above ballot papers w e re held valid for petitioner in t he first counting but rejected as "R-.M.V." on recount us they were found to contain multiple voting marks.

Ballot papers Ex. P. 52/113 to Ex. P. 52/121 of polling station 34 Gonda East were shown to him and he .stated that he never put the ballot papers bearing ione mark In the cage of any candidate into the doubtful ballot papers' tray. He iur- ther says that it is impossible that the above ballot papers w e rt rejected for no m a r ks or marks on the blank area with initials of the A.R.O.—had there been a single voting mark in the cage of "BULLS". These ballot papers were rejected ut the 1st coun t by the A.E.O. as there was no voting m a rk or voting m a rk in blank area. On the reverse of these ballot papers there is rubber stamp seals "R.N.M." or "R.M.B.A." initialled by the A.R.O, At the (recount, these ballot papers were found to have been in the "BULLS" cage. They were held valid for congress by the Returning Officer.

92 Ram N e w as (P.W. 6) was the counting clerk at table No. 16 for Gonda East and Gonda West, He corroborates Dashrath (Prasad Shukla (P.W. 4) and Bahadur Singh (P.W. 5) that the counting staff was working according to the A.R.O's instructions.

Ballot papers bearing multiple marks' used to be kept in the tray of doubtful ballot papers. At t he time of t he counting of ballot papers, the counting agents of the various candidates saw the sorting of the ballot papers. If any counting agent of any candidate objected to any (ballot paper, that ballot paper was also kept in the tray for doubtful ballot papers. He corroborates P.W. 4,

Ballot papers Ex. P, 48/1 to Ex. P, 48/136 of polling station No. 32 of Gonda East, Ballot papers Ex. P. 62/1 to Ex. P 62/73 of polling station 48 of Gonda East, ballot papers Ex. P, 69/1 to Ex. P, 69/5 of polling station 64 of Gondu East were shown to him, and he stated that it was impossible that he would have counted these ballot papers with multiple marks as valid votes for Dandekar had there been multiple voting marks at the time of counting. The above ballot papers were held valid for (petitioner in the first counting but rejected as "R.M.V." on recount as they were found to contain multiple voting marks.

Ballot papers Ex. P. 62/74 to Ex. P. 62/88 of polling Station 48 of Gonda East ballot papers Ex. 69/6 to Ex. P. 69/7 of polling station 64 of Gonda East were shown to him and he asserted that had there been single mark in the icage of the "BULLS" in the above 'ballot papers, he would lhave never put them in the tray of doubWul one. These ballot papers were rejected at the 1st count by t he A.R.O. as there was no voting m a rk or voting mark in blank area. On the reverse of these ballot papers there is rubber stamp "seals "R.N.M." or "R.M.B.A." initialled by the A.R.O. At the recount, these ballot pppers were found to have been in the "BULLS" cage. They were held valid for congress by the Returning Officer.

93. Hanuman Prasad (P.W. 7) was the counting clerk at table No. 14 on noth the days of the counting, i.e., 27th February, 19C2 and 28th February 1982 He also affirms that instructions were issued for observing tho procedure of counting and the counting was done .-iccoriing to th? instructions Ballot papers with multiple m a r ks were kept in the tray of doubtful ballot napers. He did not 3lace any ballot paper with multiple marks as valid votes for Dandekar.

Ballot papers Ex P.00/1 to Ex. P. 60/7 of polling station No 4fi of Gonda last, ballot papers Ex. P. 78/i to EK. P 78/30 of polling station 78 of Gonda East were shown to him and ho stated that h-' did not keen any ballot papers with multiple marks as valid votes for Dandekar. If he had seen multiple

marks on ballot papers at the time of counting, he would have kept them in the tray of doubtful ballot papers. The above ballot papers were held valid for petitioner in the first counting but rejected as ''R.M.V." on recount as '.iiey were fuund to contain multiple voting marks.

Ballot papers Ex. P. 78/31 to Ex. P. 78/39 of polling station. 73 of Gonda East were shown to him -and he stated that if at the time of counting where were single mark in the "BULLS" cage of these ballot papers, he would not have placed them in the tTay for doubtful buJlot papers. These bullot papers were; rejected at the 1st count by the A.R.O. as there was no voting mark or voting mark in blank area. On tihe reverse of these ballot papers thore is ruober stamp seals "R.N.M." or '•H.M.B.A." Initialled by the ARO. At the recount these ballot papers were found to have been in the "BULLS" cage. They were held valid for congress by the Returning Officer.

94. It has been clearly established from the evidence of the aboyenamed witnesses, who were engaged as counting staff that they discharged their duties of sorting and counting according to the instructions given to them by A.R.O.

The allegations of Respondent No. 1 that the counting staff were under the influence of Raja Sahib of Mankapur 01* that through deliberate mischief they counted invalid votes as valid in favour of the petitioner or rejected valid votes, which should have been counted in favour of Respondent No. 1, were made by him to explain away the extraordinary feature revealing at the recounting in very large number of ballot papers from the bundle of petitioner which were counted as valid votes for him at the first count were found there with multiple voting marks by the Returning Officer at the recount.

Similarly, large number of ballot papers which were rejected by the Assis- t a nt Returning Officer at the first count for not bearing any voting mark at all or voting marks in blank area, were counted to bear voting mark in "BULLS'' cage at the recount and hence were validated for congress by the Returning Officer.

No written objection whatsoever was made by Rama Nath Misra (R.W. 1) election agent of Respondent No. 1. or any one on his behalf so far as counting in the combined office was concerned where votes of Gonda East and Gonda West were counted. Vide Ex. P. 1 dated 28th February, 1962 (Annexure U-A of the petition¹); Ex, P. 2 dated 28th February, 1962 (Annexure II-C of the petition); Ex. P. 19 dated 28th February, 1962 (Annexure II-E of the petition) and Ex. P. 3 application for recounting dated 28th February, 1962 (Annoxure IV).

In none of the above applications, not even in Ex. P. 3, in which Respondent No. 1 has mentioned grounds for recounting, none of the grounds, viz., insuffi- ciency of light, overcrowding, undue influence on counting clerks by Raja Sahib Mankapur, deliberate mischief by counting clerks or failure on the part of the A.R.O. to Rive decision on the doubtful ballot papers have been raised. At any rate, ho objection wag made when votes in Gonda East and Gonda West Segments were counted.

Iu Ex, P. 3, the prayer for recounting was particularly directed in respect of the areas of the Assembly constituency of Gonda North and Mankapur.

95. The result sheets Exs. P.31-A, P.31-B. P. 31-C, P.31D and P31-E show that at the end of the first counting, Respondent No. 1 obtained a lead of 3451 votes in Gonda East, a lead of 1008 votes in Gonda North, a lead of 4167 votes in Gonda West and a load of 2824 votes in Mahadcva Segments ov^r the peti- tioner, while the petitioner got a load of 13,053 votes in Mankapur, excluding the postal ballots.

It will thus be clear that the maximum lead which the Respondent No 1 obtained was in Gonda East and Gonda West Segments. This factor further goes to show thp falsity of the- allegations of Respondent No. 1 that the counting stqff through deliberate mischief and through the influence of Raja Sahin of Manka- pur acted in favour of the petitioner to the prejudice of Respondent No 1 Respondent No. 1 produced a number of ballot (papers from both Gonda East

anci Gonda West segments, which were rejected In the first count, showing ins- tances of wronff markings by the counting stat}'. They are enumerated below;—

Ex. No.

• R — 7 /5 . . ..

R — 7 /6 . . ..

R — 2 2 /1 . . ..

. R — 2 2 /2 . . ..

R - 25 . . ..

. R — 2 6 /1 . . ..

R — 3 0 /1 to R — 3 0 / 11 ,

R — 3 0 / 12 to R — 3 0 / 23 Ballot Paper No.

221052 . 221135 178224 . 178255 • 289133 . 076423

. I74(363J 35O> 438, 425, 032, 113, 070,

(203, 213, 250 & 255).

. 174 (254, 244, 212, 171, 138, 071, 062,

°53* 466, 355> 335 & 372).

. 303 (205, 248, 301, 292, 298, 293, 22-jj

,R—34/2 to H—34/n .

                                           037,  079 &  202).
•R—34/12 to R—34/15 J                ,  303 (286, 222, 243 & 188)
iR—52/2 to R—52/6    .               .   114837, 197905, 045959,045986 & 045969.  -
                                     .  3452826c 345130.

. 029 (275J 192, 300, 162).

•R—53/i & R—53/2 . R—56/4 to R—56/7 . R—57/1 to R—57/7 . R—71 . . ..

. I93(74i> 744) 764> 732* 864, 812, 879). . 226347.

r

I have examined these ballot papers. They were rightly rejected. Only I .find that inappropriate seals were used for giving reasons for rejecting them. They do not support the Respondent No. l's allegation that invalid votes were put in the packets of valid votes of the petitioner or that valid votes of Respon- dent No. 1 were wrongly rejected on the ground that there were no voting marks in the ballot papers or voting mark was in Blank Area.

96, Issue No. 2:—The finding on this issue rests on circumstantial evidence.

It has been established beyond doubt that the sorting and scrutiny of t h^ ballot papers and counting of votes of Gonda East and Gonda West Segments' was made properly and conscientiously, by the counting staff.

So far as counting of Gonda East and Gonda West Segments were concerned, no written objection was made by Respondent No. 1 or any other candidate in respect of counting. The evidence that oral objection was made by Rama Nath Misra (R,W. 1} is false.

It was only in respect of counting of Mankapur segment that Respondent No. 1 for the first time filed an application dated 28th February 1962 for re- checking (Ex. P.2), This application was made to the A.R.O (SR Misra), who was in charge of the counting; of Mankapur Segment at 10.45 P.M.

There are 94 polling stations in this segment. When this application Ex. P,2 was made, counting of large number of polling stations had already been done. This is clear from the order of the A.R.O. rejecting the application (Ex. P.2) for rc-examination. The A.R.O, mentions in his order that Respondent No. l's objec- tion that manipulation had been done in ballot papers W.TS totally false, Even in Ex. P.3 which was the last application filed, by Respondent No. 1 for recount, the prayer for recount though was in respect of all the constituency areas, it was directed particularly for the areas of the Assembly Constituencies of Gonda North and Mankapur.

It will be clear from the above that the grievance of Respondent No. 1 at ihe end of first counting was mainly in respect of Gonda North, and Mankapur Segment and not in respect of Gonda East and Gonda West Segments. At the recount minor errors were detected so far as Gonda North, Mahadeva and Mankapur Segments were concerned.

J"- v • •; , - _L •'*',• ""/

? The real difference was revealed at the recounting of Gonda East and Gonda West Segments about which there was no complaint prior to the filing of the written statement.

I have prepared a chart of the ballot papers for convenience of reference, which the petitioner says have been tampered with between the dates of the first count and the date of recount.

This chart also shows the change of lead on recount from a lead of 1,576 votes in favour of the petitioner to a lead of 498 votes in favour of the Respon- dent No. 1.

This chart has been compiled from the figures in Form 16 (Ex. P. 107) of Gonda West and Ex, P. 108 of Gonda East Segments and (to some extent) from the special statement Ex. P.26 and Ex. P.27 prepared by the Returning Officer -*t the time of recounting on the instructions of Deputy Election Commissioner P. S. Subramanian (P.W. 3).

In this chart, prepared from Entries in Form 20 (Ex. P.31) I have shown ther entire lead of the petitioner in the first count and how it dwindled in the r e- count polling station-wise.

STATEMENT SHOWING CHANGE OF

From a Lead of 1576 votes in

To a Lead of 498 in Favour of the

Change on Recount in the Case of Leading Let .Assembly Segment and Polling Station No

Commencing Lead Of:

of

The Petitioner

Petitioner Rea- apon- dent

Respondent Petitioner Res- pon- den

+ —

+ +

+

(2S) (2b)

(3a)-

(3b)

(4a) (4

I. Entire Constituency

I576 — — _-

—

— —

at the end of First Counting.

—

2. After Recounting: (1) Mankapur Segment all

1576 —

— —23

1616 —

- 63

—

Polling Stations. (94 in number) <2) Mahadeva Segment all

I6l6 —

— —24

1596 —

—4

—

Polling Stations (90 in number)

1596 —

—23

— —40

1579 —

—

<3) Gonda North Segment All Polling Stations . (90 in number)

>(4) Qonda East Segment

—6

1585 —

Polling Station Nos. 1 to 5

+ 1

1579 I585 —

f2 —I

— —8

—

1577 —

—2 „ „ 7 to 17

+ 1

1577 —

_

i57<5 — 1543 _

—

1576 —

——-•5

„ „ 19 tO 23

1543 —

—

— + 20

1547 — 1481 —

1547 —

+ 1 —3 — —23 +1 — — —46 _ —

1481

33 J) 2 4J . „ „ 25 & 26

1483 —

T483

—

j> „ 27 .

— —66

                                                             —
                                                            + 8                 1409    —
 3J    33 28               1409                     —80    + 16                 1313    —
 „     „  29 to 31         1313     •  •    +  1                                1314     _
 „     M  32               13*4     -•             —I3<5               ——I      1179    —
 33    "  33    •           1179    --             —169                         1010    —
       33 -34              1010                    — in     + 8                  891    —
 >,    „  35    •            891                                                 891    —
 33    31 36                 891    ..               —9               ..         882    ,.
JJ    "   37    •    *      882    ..               —30                          852    ..
 „    „   38 to 40          852     ..                                 —2        855    ..
 JJ   "   4'    •     •     855     ..              —63                           79    2
•"J   JJ  42    .     •     792     ..              —12       h io    ,.         770    ..
 J    33  43   •     •      77°    ••              — 26     + 5                  739    ..
>3    "   44    •     •    739    -.               — 15                          724    ••
jj    i) 45     •    •     724    ..              — 23                 —2        703    .-

!LEAD ON RECOUNT

favour of the Petitioner

Respondent No. 1.

Votes wrongfully vali-

dated on recount (chall- Progressive Net Change Remarks, on Recount in the Lead

(Proprcss'vc) Cumulative Total

of:

enged by the Petitioner 1 as tampered with)

Votes wrongfully re- jected on recount (challenged by the petitioner as tamperec

with)

. (7a+8a)J

Exhibit P, Nos

No. of

loner Respondent

The Petiti

votes

j-

No. of votes

Exhibit P. Nos.

+ _

(9)

(8fl) (8b)

(7b)

(7a)

(5b)

(5<0

(">

...

•-

-

-•

* .. *By lunch

•f 3'

time of 10-3-62

+ 9

50/1-8

8

+ r

41+O

5T/i-33

33

—33 — 29

45/24-69

45/1-23

23

46

•• 87+23

—95

10

68

18

46/69-7S 47/83-100

155+33 237+51

46/1-68 47/1-82

S2

~ 93 —167 —263

—262

1

4S/I37

.-

136 I69

52/113-121

• • 373^52 542+52 654+61

1 12

48/1-136 49/1-169 52/1-IT2

9

• • —397 —566 —685 —685

9

663 + 61 693+61

-•

53/1-9 54/1-30

30

63

10

12

55/1-63 56/1-12

—694 —724 —721 —7S4 —806

56/13-22 57/25-29

24

5

14

22

756+61 768 + 71 792+76 806+76 828+76

57/1-24 58/1-14 59/1-22

—837 —852 —873

••

. OF A RAORDINARY |. ' 1.-^

Commencing Change on Recount

in the Case of Ending 1

Lead of;

Lead of Assembly Segment and Polling Station No,

Respondent Peti- + — tioner

Ren- pon- dent.

Peti- tioner +

Res- The Petitioner pon- + — dent +

(2a)

( 1)

(3b)

(4b)

(3a)

(4-0

Polling Station No. 4<5

703

—

—

—

+ i

_ 67

635

—

—

J5 47

635 —

—43

587

+ 5 '

31

,. 48 •

498 —

+ 16

—

587

—73

498

—

—ST

" 49

—

—

447

—

_

" 5o

— -

—76

37i

—

447

3!

—I

372 " 5i

—

—

—

—

371

-

„ 52

—

— 14

—

355 372 —

-1-3

J3

342

—10

—

—

—

" 53

355

+ 3

3-

—

—

—3

—

345

—

" 54 ft 55

342

2 92 JJ

—

, 56 .

+ 8

—45

—

345

—I

31

292

—

239

—

" 57

—54

243 J:

— • 239

—

—4

J3 58 to 63

—

M

— - 243

—

237 „ 64

+ i

—5

JJ

206

" 65

237

—

—3

—•

—34

170

33

—

—

" 66

+ 2

2 06

—34

—i

—

3*

171 170

5) 67

—

—

—

152

13

—12

—

—

„ 68

171

—

+ 7

66 —

—

?3

152

jj 69

—85

—

-[-2

40 —

— 24

—

66

—

3 70

—2

40 —

—

40

3J

„ 71 & 72

—

„

—

—

19

+ 6

35

— i5

4C

.. 73

—

52

35

-[•13

—58

" 74

—I

—-22

73

33

" 75

5*

73

33

73

„ 76 & 77

1 12

— 30

+ 9

35

73

„ 78 .

—2

181

1 12

— 71

3*

." 79

^

184

I BI

+ i

35

j, '8o

207

184

••

13 " 8i

—n

205-

—2

207

J>

„ 82

218

2 05

—13

33

„ S3 •

+ 2

235

2 18

••

— 15

33

„ "4 •

250

—I

—I

—16

••

235

33

„ 85 •

j

—2

249

••

2 50

„ 86 & 87

33

+ 17

337

—71

249

J3

„ 88 .

Rcpiarks Votes wrongfully re- Votes wrongfully vali- Prqgrcsjive Net change Recount in die Lead

(Progressive Cumulative

of:

Total)

jected on recount (challenged by thi. Petitioner as tem-

dated en rcci nni (chal- lenged by ihe Peiiiio- ner as tampered with)

pered with)

(7a+8a)

No- of votes

No. of votes

The 1 Ptstitionci

Exhibit P. Nos.

Exhibit P Nos.

Respondent + _

+

(!5a)

(9)

(7a) (7b)

(8a) (8b)

CsBT

1

—941

60/1*67

60/68

895 + 77

67

61/1-44

—9B9

939+84

61/45-51

7

44

1012+99 —1078

62/1-73

62/74-88

15

73

—1129

1063+99

63/1-51

51

—1205

76 64/1-76

H39+99

—1204

..

—1221

                                  15  65/1-15          4  65/16-19        1154+103
—1234                             10  66/1-10          3  66/11-13       1164+106
—1231
—1284                             45  67/1-45          10 67/46-55       T209+116
—1337                             54  68/1-54                             1263 +116
—1333
—1339                               5  69/1-5           2   69/6-7        1268 + 118
—1370                              34  70/1-34                            1302+118
•^1406                            34  7i/i-34          2  71/35-36       1336+120
—H05
—1424                              12  72/1-12          7  72/13-19       1348 + 127
—1510                              85  73/1-85          6  73/86-91       1433+133
—1536                              25  74/1-25          6  74/26-31       1458 + 139
 —1536
—1557                              18  75/1-18          7  75/19-25       1476+146
—1628                              58  76/1-58         16  76/59-74       1534+162
—1649                              22  77/1-22                            1556+162
—1649
~ i 6 88                           30  78/1-30          9  78/31-39       1586+171
—1757                              71  79/1-7T                            1657+171
—1760
—1783                              23  80/1-23                            1680+171
—1781
—1794                              12  81/1-12                  • -       1692 + 171
—1811                              13  82/1-13         ..                 1705+171
—1826                              16  83/1-16                  ••        1721 + 171
—1825                              q  *    -.          • -      • •
—1913                              71  84/1-71         17  84/72-88       1792+188

Coramcncingi C h a n ge 011 Recount in the

Ending Assembly Polling

Lead ol": '

Scgmeni and •Si'iition Nn.

Case- of ;

Lead oi

Petitioner Res- The Petitioner Respondem Petitioner Respondent

pondent

+ H-

+

+

(2a) (2b)

(3b)

(4a) (4b)

I? a)

Gonda West

Polling Station Nos.

I to 13 .

—6

+ t

337

—5 •[•T

336

>3

14

JJ

— 20

+ 2

336

358

1.1

15 to 24

35S

—9

+ 2

352

—5

)}

25 .

352

— 23

375

J)

33

26 to 32

—1

—"4

375

372-

l 1

13

372

+ I5

390 33 •

—3

)1

1 3

3 90

—2

34 to 38

+ 1

+ 1

387

—3

. li

JJ

—1

392 39 •

387

+ 4

40 .

33

—2

392 + 1

3""

33

—25

. 1 42&

            41  •                   389                         + U
J3       33 42  -                   4z8               — 24         7                      459
JJ       33 43  •                    459              — 10                —1               468
3S       33 44  -                   468                                                   4"8
J*       33 45  -                   468                —8          2                      478
*y       33 46  fo  52              478                —1                 —2              477

_ j J

>j      33  53  •                  477                —4                                480
JJ      33  54  •                  480                —8       + 1                      489

48ft

         > J3 55  &  56              489                —2                 -3
5)       3)  57  •                   488                —2        +4                        494
it       3 3 58  & 59                494                —1                                  495
Jl       J3  60  .                   495                         •-         —i              499
33       33 61  to  65               499                                   —3               495
,;       3j  66  .                   49

SttC.  3(ii)]  THE GAZETTE  OF INDIA  EXTRAORDINARY  8 13
Progressive  Net change
on Recount in the Lead Remarks
Voics wrongfully vali- dated  on  recount  fchal- lenged  by the Pcti ioner
iPn.Clessivc) Cummulu- :ivc
oft—
us  lampered  with)
Voles  wrongfully  re- jected  on  recouni ("challenged  by the Petitioner  us tam- pered  wiih'i
(7a +Sal Respon- denl
No. of \ 01 es
No.  ol votes
Exhibit  P. Nos.
The  Peii- tioner
Exhibit  P. Nos.
+  — +  —
'Mi
fSh'
(jb)  6
(7i'l
(7b-
—1912
20
+ 190
85/2T-22
2
H 5/1/- 20
1S12
—1934
—1928
2.3
S6/1-23
TST;
— 1931
+ 190
- 1 9 48
IS
1S3K 1-205
3
—1966
87/4-1S
B7/I-3
— 1963
+ 209
1S38
— 1968
88/1-4
4
— 196;
11
1S63
89/26-36
+230
—7004
25
89/1-25
1S87
90/25-31
•1  227
24
—2035
9O/i-24
7
1
10
1897 4-227
91/1-10
—2044
••
—2044
1905
92/9-10
2
8 92/r-3
+ 329
—2054
••
••
••
—2053
1909 +229
..
4 93/r-4
—2056
1917 -1-232
8
94/9-I (
—2065
3
94/i-"
• •
—2064
itd9
2
4 236
95/1-2
9J/3-6
4
—.2070
. ^ 2 0 71
• -
+ 236
1924
96/1-5
5
—W5
—2071
—207c                              2  97/1-2                             1926   + 236
^ 2 0 71
—2076                              4  98/1-4                             1930   -1-236

 
••

8 l4  THE  GAZETTE  OF  INDlA  EXTRAORDINARY  [PAKT  I I-
97  It  has  been  established  from  the  evidence  of  Dashrath  Prasad  ShuMa (P  W  4),  Bahadur  Singh  (P.  W,  5),  Ram  Newas  (P.  W.  6)  and  Hanuman  Prasad (P.  W.  7)  that  the  ballot  papers  (Exs.  P  55/1  to  63),  (Exs.  P.  68/1  to  54),  (Exs. P  75/1  to  18),  (Exs.  P.  86/1  to  23),  (Ex*.  P.  89/1  to  25),  (Exs.  P.  51/1  to  53) (Exs.  P.  52/1  to  112),  (Exs,  P.  64/1  to  76),  (Exs.  P.  71/1  to  34),  (Exs.  P.  4&/1  to 136),  (Exs.  P.  62/1  to  73),  (Exs.  p.  69/1  to  5),  (Exs.  P.  60/1  to  67),  (Exs.  P.  78/1 to  30)—total  769  ballot  papers  could  not  have  been  counted  valid  votes  for  the petitioner  had  there  been  a  second  voting  mark  on  these  ballot  papers.
It  is  also  established  from  their  evidence  that  ballot  papers  (Exs.  P.  75/19  to 25).  (Exs.  P.  89/26  to  36),  (Exs.  P.  95/3  to  6),  (Exs.  P.  52/113  to  121),  (Exs.  P. 62/74  to  88),  (Exs.  P.  09/6  and  7),  and  (Exs.  P.  78/31  to  39)— total  57  ballot papers  would  not  have  been  marked  "R.N.M."  or  "R.M.B.A."  had  there  existed a  voting  mark  in  the  "BULLS"  cage  in  those  ballot  papers  at  the  first  count.
There  is  thus  direct  evidence  in  respect  of  825  ballot  papers  to  show  that  some time  after  the  1st  count  and  before  the  recount  these  ballot  papers  were  pot  at  and they  had  been  tampered  by  placing  additional  voting  marks  and  voting  marks in  "BULLS"  cage  in  the  ballot  papers  which  had:  no  voting  mark  at  the  flnrt count.
M.  In  the  light  of  the  above  findings  it  becomes  necessary  to  examine  the circumstances  •which  prompted  Respondent  No.  1  to  make  applications  Ex.  P.  2 and  Ex.  P.  19 and  Ex. P.  3 for  re-examination  of  ballot  papers  in  respect  of  Manlca- pur  Segment.  These  applications  were  submitted  at  mid-night  of  28-2-52  to  the Assistant  Returning  Officer.  Mankapur  Segment.  Ex.  P.  3 is  for  recounting  at  the entire  constituency  and  the  order  passed  by  the  Returning  Officer  (C.  M.  Nigam) bearing  date  1-3-1962  (Ex.  P.  42).  GONDA  NORTH:  This  Segment  has  9% polling stations.  Counting  took  place  in  a  Shamiana  on  27-2-1962.  The  counting  was over  by  about  11  P.M.  (Vide  P.  W.  2,  Para  21 of  Page  13).  The  number  of  votes polled  were  37.563.  GONDA  EAST:  This  Segment  has  R8  polling  stations.  Coun- jng  commenced  by  mid-day  and  was  over  by  11 P.M.  (vide  P.  W.  2  para  7).
This  is  clear  from  the  evidence  of  V.  B.  Bhadkamkar  (P.  W.  2)  who  has  been corroborated  by  Dashrath  Prasad  Shukia  (P.  W.  4),  Ram  Newas  (P.W.  6)  and Vijal  Bahadur  (P.  W,  9)—Total  number  of  votes  polled  were  41,832.
Ram  Newas  (P.  W.  6)  has  stated  that  Parmanand  Aignihotri  (R.  W.  6)  was one  of  the  counting  clerks.  He  has  stated  that  ho  had  left  at  about  mid-night which  would  indicate  that  counting  must  have  been  over  sometime  before  mid- night.
Evidence  of  Mujtaba  Ilusain  (R.  W.  2)  in  para  10  of  his  deposition  also
indicates  that  the  counting  of  Gonda  East  was  over  by  11  P.M.
MAHADEVA:  There  are  90  polling  stations  In  this  SeRtnent.  The  counting was  over  by  10  P.M.  (Vide  evidence  of  V.  B.  Bhadkamkar  ("P.  W.  2)  para  22, page  131.  The  total  votes  polled  were  41,033.
GONDA  WEST:  There  are  86  polling  stations  in  this  Segment.  Counting enmmenced  at  about  9  A.M.  and  finished  at  about  9  P.M.  on  28-2-1962.  (Vide evidence  of  V.  B.  Bhadkamkar,  P.W.  2  para  20  and  22  on  page  13  and  Dashrath Prasad  Shukia  P.  W.  4,  para  12  and  17).
Ram  Newas  (P  W.  6)  says  that  he  had  left  the  counting  hall  at  about  ll-30 PM.  on  28-2-1962.  This  indicates  that  counting  must  have  been  over  before 11-30  P.M.
MANKAPUR:  There  are  94  polling  stations  in  this  Segment.  Counting  cf votes  in  this  Segment  began  at  8  A.M.  on  28-2-1962.  According  to  P.  W.  2  it commenced  Irom  8 A.M.  R.  W.  1 gives  the  time  of  commencement  as  8.'3fl  A.M.
V.  B.  Bhadkamkar  (P.  W.  2)  has  stated  that  the  counting  of  Mankapur  was over  by  mid-night.  This  statement  is  supported1  by  Ex.  P.  19  and  Ex.  P.  20.
Ex.  P.  19  (Annexure  II-E  of  the  petition)  is  en  application  moved  by  R.  N. Mi-ry  (R.  W.  1)  election  agent  of  Respondent  No.  1 on  28-2-1962  at  mid-night  to the  Assistant  Returning  Officer.  In  para  1  of  this  application,  he  mentions  about his  previous  application,  which  is  Ex.  P.  2  for  recounting  and  re-checking  of ballot  papers  of  Parliament  in  respect  of  Mankapur  Segment  which  was  going  on since  8  A.M.
Thh  application  was  made  to  reconsider  the  previous  decision  of  the  A.R.O. on  the  application  Ex.  P.  2  which  was  filed  at  10'45  P.M.  This  application  Ex. t>.

Sic.  3(11)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  815
19  was  filed  at  12  mid-night.  The  order  on  this  application  passed  by  the  AR.C is  Ex.  P.  20.  Thp  relevant  portion  of  the  order  is  Klven  below: —
"1  have  personally  checked  and  satisfied  that  the  orders  of  rejection  wer correctly  passed  by  me  on  icje-cted  ballot  paper.  I  counted  th Utraula  Constituency  and  I  atid  my  present  counting  staff  had  a  res of  24  hours  on  27-2-19152  Thus  it  i=  wrong  that  because  of  bein; tired,  I  have  rejected  the  previous  application.  Recounting  is  not over  and  I  have  fully  satisfied  about  the  accuracy  el  totals  by  re checking".
The  application  Ex.  P.  19  and  the  order  of  the  Returning  Officer  (Ex,  P.  20; passed  thereon  establishes  beyond  boubt  that  the  rountint*  of  ballot  papers  ir Mankapur  segment  commenced  at  8 A.M.  and  finished  by  12 mid-night.  R.  W.  I1; statement  that  the  counting  of  Mankapur  Segment  did  not  finish  till  12-45  A.M is  false  in  the  face  of  the  above  two  documents.
99. Reference  wss  made  on  behalf  of  Respondent  No.  1 to  Ex.  P.  16  and  Ex.  P 23 to  show  that  the  time  when  counting  was  completed  in  Gonda  "West,  Mankaput and  Mahadeva  Assembly  Segments  as  given  by  petitioner"?  witness  was  noi correct.
In  Ex.  P.  16  para  3. the  petitioner  has  written  as  follows:—
"counting  of  votes  cast  in  Gonda  West,  Mankapur  and  Mahadeva  Assembly
Segments  began  on  38-2-1962  and  was  completed  late  at  night".
hi  Ex,  P.  23 para  3  the  petitioner  wrote  that  the  counting  in  Gonda  West  and Mabadeva  went  on  until  late  into  the  night  and  finished  around  midnight.
This  is  at  best  an  approximate  time  given  by  the  petitioner  and  is  not  of  any special  significance.  The  petitioner  himself  was  not  present  in  Gonda  from  the evening  of  28-2-62  till  the  afternoon  of  the  1st  March  1962,
Moreover  it  is  clear  that  the  number  of  votes  polled  in  Gonda  West  was  the minimum  in  comparison  to  the  votes  polled  in  other  Segments.  This  would  corro- borate  the  petitioner's  evidence  that  the  counting  of  Gonda  West  was  finished  by about  9  P.  M.
Therein  is  no  manner  of  doubt  that  the  counting  of  Mankapur  began  at  8 A.M. on  28-2-62  and  finished  at  about  mid-night  as  I  have  already  mentioned  in  the previous  paragraph.
From  Ex.  P.  31  which  is  the  final  result  sheet  of  34  Gonda  Parliamentary Constituency,  it  is  clear  that  Respondent  No.  1 had  a  lead  of  1008  votes  in  Gonda North  and  in  Gonda  East  he  had  a  lead  of  3451  votes.  Thus,  as  a  result  of  count- ing  on  27-2-62  Respondent  No.  1  got  a  lead  of  4459  votes.
On  28-2-62  in  Gonda  We?L  Respondent  No.  1  got  a  lead  of  4167  vote:-,  •and  in Mahadeva  he  Hot  a  lend  of  2824.  Thus,  by  the  time.  Gonda  West  and  Mnludeva counting  was  finished,  Respondent  No.  ]  had  got  an  over  all  lead  of  11,450 votes.
The  credibility  of  evidence  of  V.  B.  Bhndkamkar's  fP.W.2)  testimony  in  para? 21,  22,  23  of  his  deposition  judged  in  the  light  of  the  above  circumstances  can  not be  doubted.  For  convenience  of  reference  this  portion  of  his  evidence  is  quoted below: —
Pwra 21. Parje  14:  "On  23th  February,  19G2,  I  was  present  most  of  the  time  in the  counting  of  Manltapur  Segment.  During  the  counting  of  Mankapur Segment  at  about  9  P.M.,  the  position  was  that  the  large majority  of  about  15000  votes  which  the  petitioner  had in  that  Segment  had  been  reduced  by  2,500  approximately  in  the round  of  16  (sixteen)  polling  stations  the  counting  of  which  at  that time  was  nearinK  end.  After  the  first  four  re und  i.e.  v.pto  the  64 polling  stations  of  the  Mankapur  Segment  had  been  counted,  the  lead of  the  Petitioner  over  Respondent  No.  1  in  this  Segment  was  about 15,000.  In  the  fifth  round,  i.e.  from  Polling  Stations  65  to  80,  1his lead  had  been  reduced  by  about  ?|S00  voff.fi.  "The  time  when  tho  fifth round  was  ncarin^  its  end  was  about  9  P,M.  At  ab'out  this  time  the Respondent  No.  1  came  into  the  Shamuina,  where  the  counting  of Mankapur  Seffment  was  in  progress.  About  15  minutes  luter,  the Returning  Officer  Sri  Nigam  and  the  Assistant  Returing  Officer  Sri Jiuhari  also  oame  to  the  Shamiana.  Sri  Jauhari  wag  A.R.O.  of  the Parliamentary  Constituency  as  a  whole.  The  A.R.O.  of  the  Mankapur Secernent  was  Sri  S.  R.  Miara.

8;6  THE  (.AZF.1TE  OF  INDlA  EXTRAORDINARY  [PA*T  I I-

"Ec.  3(ii)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  gTy
specifically  mentions  that  the  counting  is  now  over  and  he  had  fully  satisfied  the u( curacy  of  the  totals  by  reeherking.
It  is  further  established  thai  by  miil-night  of  28th  Febuarv  ]j)tj2  counting  of  till (he  .segments  were  over  excepting  the  postal  ballots  and  the  over  all  result  was that  the  petitioner  was  leading  by  1603  votes.  (The  toa]  number  of  postal  ballot, papers  wore  5?,  only  which  laier  was  found  to  be  40  In  labour  o[  Respondent  No. 1  and  13  favour  of  the  Petitioner.
103.  Ex.  P.  3  is  the  application  for  recounting  dated  %th  Febnary,  1962  signed ty  Respondent  No.  1  himself.  It  is  obvious  that  ii  was  prepared  immediately after  the  counting  of  Mankapur  segment  was  over.
Ex.  P.  42  is  the  order  of  the  Returning  Officer  bearing  date  1st  March,  1962 lime  12-25  A.M. by  which  the  declaration  of  the  -.-esdlt  of  election  was  postponed to  1st  March,  1962,  at  11  A.M.  The  reasons  for  postponement  given  In  this  Ex.  P. 42  were  as  below : —
(j)  Counting  of  votes  of  two  constituencies  Tulsipur  and  Mankapur  is  con-
tinuing  and  likely  to  continue! for  two  or  three  hours  more.
(ii)  It  is  now  12-25  A.M.
In  my  opinion,  the  above  order  of  the  Returning  Officer  was  unwarranted  and the  grounds  alleged  therein  were  baseless  inasmuch  as  the  counting  of  Mankapur Segment  was  over  by  mid-night  of  28th  February,  1962  so  far  as  Goncla  Parlia- mentary  constituency  was  concerned.
Ex.  R.  4 is  a  letter  to  the  Commissioner  of  the  Division  by  the  R.O.  He  men- tions  that  counting  of  Tulsipur  and  Mankapur  Assembly  constituency  flnfRhed  bet- ween  4  A.M.  and  1 A.M.  respectively  on  1st  March.  1962.
According  to  the  Returning  Officer,  Mankapur  counting  finished  at  1  A.M. In the  night  between  28th  February  and  1st  March,  1962.  This  a  mis-statement  PS the  counting  of  Mankapur  Assembly  constituency  finished  by  mid-night  on  28th February,  19£2.
In  my  opinion,  in  the  circumstances  mentioned  above,  there  was  none  nor could  there  have  been  any  justification  for  the  Returning  Officer  to  loutpone  the declaration  of  the  result  till  1 A.M. of  the  1st  of  March  1962  as  in  another  14  or  2 hours  a 11 the  accounts  could  have  been  completed  and  the  result  declared.  In  fact, the  result  of  the  Mankapur  Assembly  segment  was  declared  at  about  1-30  or  2  A.M. in  th  night  between  28th  February  and  1st  March  1962  wide  Rama  Nath  Misra R.W.  l's  deposition  para  36).
There  is  no  reason  why  the  same  step  could  not  have  been  1aken  in  respect  of -the  Parliamentary  constituency  The  result  could  have  been  declared  by  the  Re- turning  Officer  himself  or  by  the  A.R.O.  (R.  B.  John),  who  was  present  at  Ihe election  at  1 A.M. (vide  statement  of  V.  B.  Bhadkamkar  P.W.  2  para  32  page  19 which  is  corroborated  by  the  endorsement  of  R.  B.  John  on  Ex.  P  43).
There  wa=  a  definite  design  in  the  action  of  K.  O.  in  poilponin^  1he  declaration of  the  Parliamentary  constituency.
Another  very  sicniflcant  factor  worth  mentioning  in  thi^  connection  is  th^t  the rtfturning'  Officer  had  attended  the  Shamionn  at  <<-4n  P.M.  where  Mankapur segment  was  being  counted,  and  by  then  it  was  -ipparent  that  Respondent  No.  l's chances  of  winning  the  election  had  become  bleaK.
The  presence  of  Returning  Officer  in  the  Shamiana  is  also  admitted  bv  R.W.  1, liui  he  says  that  the  Returning  Officer  visited  ;it  about  10-3n  or  I]  P.M.  This  state- ment  is  not  correct.  Had  the  Returning  Officer  been  present  at  the  Mankimir "Ountinti  place  between  10-30  and  11  P.M.,  the  application  Ex,  P.  2  would  surely have  been  moved  before  him  and  not  before  A.R.O.
104,  The  Returning  Officer  left  Mankapur  counting  place  at  about  9-45  P.M. on 28th  February,  1962.
It  s  strange  how  could  he  have  known  at  12-25  A.M. that  Mankapur  counting was  to  continue  for  2  or  3  hours  more,  specially  when  the  facts  were  otherwise and  the  counting  was  over  at  about  12  mid-night.  The  Returning  Officer  hinwif did  not  care  to  visit  the  Mankapur  counting  place  again  and  to  verify  the  position.
 
105  Judeirip  from  the  entire  circumstances,  it  will  be  reasonable  to  conclude that  the  initiative  for  the  R.O's  order  postponing  the  declaration  of  the  result

8j8  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART 11^
nust  have  come  from  an  interested  person,  namely  Respondent  No.  1,  as  he  had mown  by  that  time  that  he  had  lost  the  election.,  This  order  (Ex.  P.  42)  of  the Returning  Officer  postponing  the  declaration  of  the  result  was  clearly  against  the provisions  of  Rule  60  (Conduct  of  Election  Rules  1961)  and  the  notification  (Ex, >. 14).
There  is  evidence  of  Katyani  Dutt  (P.W-  10)  to  the  effect  that  he  had  seen the  Returning  Officer  at  9-45  P.M. coming  out  of  the  Shamlana  "meaning  where the  Mankapur  votes  were  being  counted  and  going  to  his  residence.  About  10 minutes  later,  he  saw  Respondent  No.  1  also  coming  out  of  the  Shamiana  and taking  seat  in  his  own  car.
Katyani  Dutt  (P.W.  10)  further  says  that  at  about  12-15  A.M. he  learnt  that some  application  of  Respondent  No.  1 to  stop  counting  has  been  dismissed.  It  was also  known  that  the  counting  had  finished.  He  went  in  his  car  to  the  bungalow of  the  Returning  Officer.  There  he  learnt  that  Respondent  No.  1 was  with  the  Re- turning  Officer  and  about  5  minutes  later  the  Respondent  No.  1  came  out  of  the bungalow  of  the  Returning  Officer  and  drove  away  in  his  car.  Thereafter,  Katyani Dutt  (P.W.  10)  sent  in  information  through  the  peon  that  counting  wasl  over  and the  result  be  declared.  The  peon  returned  and  informed  him  that  the  Return- Ing  Officer  would  shortly  be  going  to  the  counting  place.
Katyani  Dutt  (P.W.  10),  thereafter,  came  back  from  the  bungalow  of  the  Re- turning  Officer,  He  further  states  that  the  Returning  Officer  did  not  come  and learnt  that  he  has  sent  an  order  for  the  postponement  of  the  declaration  of  the result  for  the  next  day.
106.  The  evidence  of  this  witness  has  been  criticised  at  great  length  and  it  bae been  suggested  from  his  cross-examination  that  he  had  been  acting  as  a  counting agent  of  Capt.  Ram  Garib  and  that  he  could  not  have  gone  to  the  Shamiana where  Mankapur  votes  were  counted.
Ex.  R.  159  and  Ex.  R.  160  are  appointment  form  of  counting  agents.
Ex.  R.  160  contains  6  names.  Katyani  Dutt  (P.W.  10)  has  admitted  his  signa- tures  at  two  places  in  this  form-  The  signature  of  the  sixth  counting  agent  in this  Exhibit  is  of  Satya  Narain  Pande.
Ex.  R.  159  is  the  appointment  by  Capt.  Ram  Garib  of  another  counting  agent Din  Dayal  Karoon.  The  second  signature  of  Din  Dayal  Karoon  is  counter-signed by  A.R.O.  (A.  S.  Misra).
In  Ex.  R.  160,  however,  the  second  signatures  of  the  counting  agents  have  not been  countersigned  by  the  Returning  Officer.
This  would  go  to  show  that  the  counting  agents  named  in  Ex.  R.  160  did  not affix  their  signatures  in  the  presence  of  the  Returning  Officer-  This  is  further established  by  the  fact  that  admittedly  Satya  Narain  Pande  did  not  work  as  the counting  agent  of  Capt.  Ram  Garib,  although  his  signature  is  there  in  Ex.  R.  160.
More  signatures  of  election  agents  in  Ex.  R.  160,  therefore,  do  not  prove  that they  and  in  particular  Katyani  Dutt  (P.W.  10)  actually  worked  as  counting  agent of  Capt.  Ram  Garib.
Katyani  Dutt  (P.W.  10)  was  recalled  and  when  he  was  asked  about  his  sig- nature  in  Ex |  R.  160,  he  stated  on  oath  that  he  signed;  it  6  or  7  days  before  the counting.  He  has  not  signed  the  declaration  in  the  presence  of  the  Returning Officer  and  he  stated  that  he  did  not  act  as  a  counting  agent  of  Capt.  Ram  Garib. In  the  circumstances  I  do  not  see  any  reason, why  he  should  not  be  believed.
In  Ex,  R.  160,  the  numbers  14,  15  and  16  appear  against  the  name  of  Katyani Dutt  (P.W.  10).  It  is  not  known  who  wrote  them.  The  suggestion  from  the  Res- pondent  No.  l's  side  was  that  he  was  placed  at  tables  14,  15  and  16.
107.  Parmanand  Agnihotrl  (R.W.  6)  in  para  1  of  his  deposition  has  stated  thai he  was  allotted  to  tables  13,  14  and  15  during  the  counting  of  Gonda  West  seg- ment.  Capt.  Ram  Garib  was  the  Assembly  candidate  from  that  segment.  If  the noting  of  fibres  in  Ex.  R.  160  meant  the  number  of  the  table,  then  Parmanand Agnihotri  (R.W.  6)  was  the  best  person  to  speak  about  Katyani  Dutt  (P.W.  10)'s presence,  but  no  auestion  was  put  to  him  by  the  Respondent  No.  l's  counsel  abou* the  presence  of  Katyani  Dutt  (P.W.  10).
 
The  best  evidence  In  rebuttal  would  have  been  that  of  CM.  Nigam  and  Res- pondent  No.  1 but  they  have  not  entered  the  witness  box  to  state  that  Respondent

SEC.  3(ii)]  THE  CAZE1TK  OF  INDlA  EXTRAORDINARY  8l9
No.  1 visited  C. M. Nigam  soon  after  leaving  the  Mankapur  counting  place  at  about ,  ,  , i  g.^.LjlJ 4-45  P.M.
108.  The  next  point  for  consideration  is  about  the  safe  custody  of  the  ballut papers  during  the  period  between  the  first  and  the  second  counting  i.e1.  iiot:i  }at March  1962  to  9th  March  1962.
Rule  60  of  the  Conduct  of  Election  Rules,  1961  enjoins  that—
''The  returning  officer  shali,  as  far  as  practicable,  proceed  continuously  with the  counting  and  shall,  during  any  intervals  when  the  counting  has to  be  suspended,  keep  the  ballot  papers,  packets  and  all  other  papers relating  to  the  election  sealed  with  his  own  seal  and  the  seals  ol  such candidates  or  election  agents  as  may  desire  to  affix  their  seals  and take  sufficient  precaution  for  their  safe  custody  during  such  intervals."
The  Returning  Officer  after  issuing  bis  order  Ex.  P.  42  did  not  himself  go  to the  counting  place  nor  did  he  issue  any  direction  about  the  safe  custody  of  the ballot  papers  when  he  directed  postponement  of  further  counting  in  the  night between  28th  February,  1962  and  1st  March  1962  at  about  12-25  A.M.
Non-compliance  of  the  provisions  of  Rule  60  in  the  above  connection  also  leads to  the  inference  that  the  counting  of  Mankapur  segment  was  already  over  at  12 midnight  as  asserted  by  the  petitioner.
109,  The  Returning  Officer  by  his  order  dated  1st  March  1962  (Ex,  P4)  which he  passed  at  about  2-30  P.M. allowed  the  application  Ex.  P.3  filed  by  Respondent No.  1  for  re-examination  and  recounting  of  votes.  This  order  he  passed  after hearing  both  the  parties  and  the  objection  raised  by  the  petitioner  that  he (Returning  Officer)  had  no  jurisdiction  to  entertain  this  application  for  recount as  he  could  not  review  the  decision  of  the  Assistant  Returning  Officer,  who  did the  counting  initially.  This  objection  was  over-ruled  with  the  words  "Rule  63  of the  Conduct  of  Election  Rules  1961  is  a  complete  reply  to  this  objection".
Rule  63(4)  of  the  Conduct  of  Election  Rulea  1961  lays  down  that  every  decision of  the  Returning  Officer  unler  sub-rule  (3)  shall  be  in  writing  and  contain  the reasons  thereof.
The  Returning  Officer  has  rot  given  any  reasons  in  the  above  order  for  allow- ing  the  application  (Ex.  P,  3)  for  recount  filed,  by  Respondent  No.  1.  B>  has merely  stated: —
"Under  the  circumstances  mentioned  in  the  application,  I  think  it  fair  and prooer  to  allow  the  application  for  a  recount.  The  date,  tlmp  and place  of  recount  shall  be  intimated  to  all  the  contesting  candidates shortly".
There  is  nothing  in  the  order  to  ;.how  that  before  passing  tho  order,  ho  had  made any  enquiry  about  the  allegations  mentioned  in  Respondent  No.  l's  application (Ex.  P.  3).  In  fact,  the  ballot  papers  of  Mankapur  segment  were  rechecked  by A.R.O.  on  previous  applications  (Ex.  P.  2  and  Ex.  P.  19)  made  by  Rama  Nath Misra  (R.W.  1)  on  behalf  of  Respondent  No.  1  and  he  had  rejected  them.
The  order  of  tho  Returning  Officer  allowing  Respondent  No.  l's  application i  for  recount  was  not  only  arbitrary  but  illegal.
There  is.  however,  no  provision  in  the  Representation  of  Peoples'  Act  (herein- after  called  "the  Act")  to  deal  with  such  a  situation  to  enable  an  agrieved  party to  seek  redress  against  such  an  order.
110.  It  has  already  been  stytrd  that  the  order  for  recount  (Ex,  P.  4)  was  passed by  the  Returning  Officer  on  1st  March  3962  at  2-30  P.M. Petitioner  (P.W.  1)  had made  a  request  for  safe  custody  of  the  ballot  papers  and  the  Returning  Officer agreed  to  do  so,  but  on  such  orders  were  received  by  the  A.R-O.  till  7  P.M. on 1st  March  1962  [vide  V.  B.  Bhadkamkar  (P.W.  2)  Para.  37].
Krishna  Madlio  Saran  (R.W.  20),  who  is  thf>  Treasury  Officer,  Gonda,  has stated  that  he  received  the  Returning  Officer's  order  (Ex.  R.  5),for  safe  custody ai  8-50  P.M.
Ex.  R.  5  is  a  short  order  containing  the  following  words:—
"The  bags  containing  ballot  papers  of  No.  33  Bslrnmrmr  and  No.  34- Gonda Parliamentary  constituencies  be  kept  in  the  Double  Lock  till  such time  as  they  are  required  for  recounting".

>"•  •  !
T HE  G A Z E T TE  OF  T N D IA  E X T R A O R D I N A RY
[ P A RT  I T-
This  order  is  addiesscd  to  Treasury  ilmYcr  and  is  dated  1st  March  1962.
111.  It  is  not  disputed  that  the  bays  containing  ballot  pujjors  nf  Bolrampur Parliamentary  constituency  a nil  o4  G.,nd;>  P:wliament;,:-y  constituency  m it  depo- sited  in  the  Armoury.  Strong  Hoom  hv  a'"out  ,'1-45  I'.ivi!  on  1st  ;Vioic!i  l(ui2  SJipa or  papers  have  been  produced  by  the  Treasury  Officer  iR.W.  2(1)  from  the  reipei1- tivo  A.RO's  to .show  that  the  bags  of  their  segments  were  deposited  in  the  Armoury Strong  Room.  There  is  no  sui-h  paper  in  respect  of  Mahadeva  segment  (ride Ex.  R.  2)  and  endorsements  on  Ex.  P.  118/C,
Although  order  (lix.  R.  5)  passed  by  the  Returning  Officer  was  very  .specific to  the  effect  that  the  bags  containinR  the  ballot  papers  of  both  the  Parliamentary constituencies  were  to  be  kept  In  the  Treasury  Double  Lock  for  safe  custody still  the  Treasury  Officer  kept  them  in  the  Armoury  Strong  Room.
It  was  incumbent  on  the  Treasury  Officer  to  make  entries  in  the  regular  regis- ter  of  valuables  maintained  by  him  for  depositing  articles  in  the  Treasury  Double Lock,  but  he  did  not  comply  with  the  Treasury  rules.  The  original  register  of valuables  was  sent  for.  It  does  not  contain  any  entry  of  deposit  of  (he  ballot paper  bags.  The  T.O.  produced  a  manuscript  register  Ex.  R.  211  which  he  had prepared  for  the  deposit  of  the  bags.  This  manuscript  register  he  opened  with- out  obtainin (  any  order  from  the  District  Magistrate,  who  was  the  Returning Officer  and  in  charge  of  the  Treasury.  Even  then  this  manuscript  register  •was not  opened  on  1st  March  1962.  The  Treasury  Officer  has  made  an  endorsement on  the  1st  p.ige  of  this  manuscript  register  Ex.  R.  211  that  it  was  opened  on  5th March  1962,  yet  it  contains  the  entries  dated  1st  March  1962  in  respect  of  the deposit  of  the  bags  against  which  the  A.R.Os.  sigriei.  Obviously  these  entries have  been  antidated.
112.  The  Treasury  Officer  in  order  to  justify  his  action  now  rails  this  Armoury Strong  Room  as  "Triple  Lock  Room"  as  if  it  were  under  the  control  of  the Treasury  Officer,  in  the  same  manner  as  the  Treasury  Double  Lock.
There  has  been  extensive  cross-examination  of  Kali  Chandra  Johri,  Nazir  (R. W.  19)  and  Krishna  Madho  Saran,  Treasury  Officer  (R.W.  20),  which  show  that this  Armoury  Strong  Room  was  under  the  control  of  the  Nazir,  and  the  Treasury Officer  had  nothing  to  do  with  the  custody  of  the  arms  \vldu  deposition  if  Krishna Madho  Saran  (R.W.  20)  paras.  31  and  85j.  Reference  to  the  relevant  portion  of the  evidence  of  the  above  witnesses  will  be  made  hereafter  when  dealing  with the  question  of  the  safe  custody  of  the  bags.
113.  There  is  evidence  on  record  to  show  that  from  the  1st  March,  1E>62 to  the morning  of  5th  March,  1&62, there  were  four  persons  posted  on  behalf  of  the  peti- tioner  to  keep  watch  on  the  Armoury  Strong  Room,  where  the  b^Rs  were  kept locked  (vide  evidence  of  V.  B.  Bhadkamker,  P W.  2,  para.  41).
This  is  corroborated  by  the  entry  in  the  return  of  election  expenses  Ex.  1H8 equal  to  Ex.  R.  128  filed  by  the  petitioner,  which  show  that  no  expenses  lor  the watch-man  were  incurred  after  5th  March,  1962.
The  contention  on  behalf  of  Respondent  No.  1 that  petitioner's  watch-men  con- tinued  to  be  posted  till  before  the  recount,  is  without  foundation.
Evidence  of  Rama  Nath  Misra  (R.W.  1)  in  support  of  the  above  contcnlion is  only  hearsay.  He  says  that  he  heard  this  from  Ram  Kumar  Azad.
114.  Krishna  Madho  Saran,  Treasury  Officer,  (R.W.  20)  sought  to  justify  the "keeping  of  the  bags  containing  the  ballot  papers  of  the  two  constituencies  in  the armoury  strong  room  by  saying:—
"Because  there  was  not  enough  space  in  the  double  lock  room  and  I  con- sider  the  Triple  Lock  Room  also  Double  Lock".
 
This  is  merely  an  excuse  as  under  no  such  circ-umstances  can  a  triple  lock room  be  confused  with  Treasury  Double  Lock.  The  shortage  of  space  in  the Treasurv  Double  Lock  alluded  to  by  the  Treasury  Officer  is  also  an  excuse  to support'his  unauthorised  act  of  placing  the  bags  m  the  Armoury  Strong  Room. The  Treasury  was  inspected  by  me  on  14th  December  1963.  It  is  large  enough to  accommodate  all  the  bags.  In  fact  the  bags  containing  ballot  papers  were moved  from  Armoury  Strong  Room  to  the  Treasury  Double  Lock  on  Bth  Marcn 1962.  '  -

Sue,  3(ii)]  THE  GAZETTE  OK  INDIA  EXTRAORDINARY  $2I
The  endorsemrnt  (Ex  R  6)  under  the  MRnatuie  oL'  C.  M.  Nigaiii,  Dial liet Magistrate,  Gonda,  ddtcd  ",'th  Iv]\i7vh  I%"2,  who  was  alsu  the  Returning  Officer,  on iht  pioposal  made  by  R.  E.  .lohri  inr  '-hit'tirig  the  b^ts  from  the  Armoury  Strong Room  to  the  Treasury  Double  Luck  JDOWS  that  the  Rotujniug  Officei  throughout was  aware  of  the  taut  that  the  bags  (.•onUnmn.t:  the  ballot  papers  of  the  two  con- stituencies  were  not  kept  in  the  Treusuiy  Double  Lock  although  ordered  by  him, but  were  kept  in  the  Armoury  Stronc  Room  on  1st  March  1962.
In  the  endorsements  made  bv  the  Treasury  Officer  on  the  reverse  of  Ex.  R.  6 and  on  the  endorsement  Ex  P.  118/K  P.  11~8/G,  P.  1I8/F,  the  presence  of  Dis- trict  Magistrate  has  been  mentioned  by  the  Treasury  Officer  when  the  bags  were shifted  from  the  Armoury  Strong  Room  to  the  Treasui-y  Double  Lock  on  8th March  1962.  Still  the  District  Magistrate  railed  for  no  explanation  from  the Treasury  Officer  why  his  order  Ex.  R.  5.  was  contravened.
This  leads  to  an  irresistible  inference  that  this  wag  done  either  with  his  con- •nivance  or  with  his  consent,  as  there  is  nothing  on  record  to  show  that  he  had taken  any  steps  against  the  Treasury  Officer  when  his  orders  Ex.  R.  5  were  not obeyed.
115.  The  Treasury  Officer's  plea  that  he  kept  these  bags  in  the  Armoury  Strong iRoom  for  want  of  space  in  the  Treasury  Double  Lock  is  false.  In  fact  if  the  • bags  containing  the  ballot  papers  of  the  two  constituencies  had  been  kent  in  the Treasury  Double  Lock,  it  would  have  been  incumbent  on  him  to  make  relevant entries  in  the  regular  register  of  valuables  and  that  would  have  prevented  the free  movement  of  bags  from  the  Treasury  Double  Lock,  as  whenever  any  valu- able  is  brought  in  or  taken  out  of  the  Treasury  Double  Lock,  the  relevant  entry is  to  be  made  and  the  corresponding  aerial  number  of  the  register  is  marked  on the  article.  This  is  intended  to  prevent  the  removal  of  any  other  article  except -what  has  been  brought  in  by  the  depositor.
The  Treasury  Officer  says  that  this  procedure  is  followed  in  the  ordinary course,  but  it  was  not  adopted  when  he  was  ordered  to  deposit  these  bags  in  the Treasury  Double  Lock.  He  has  admitted  that  in  this  case  there  has  been  an irregularity.
116.  The  Treasury  Officer  is  trying  to  cover  up  his  irregular  and  irresponsible act."  by  telling  lies  as  will  be  clear  from  the  following  rcfeience  to  his  evidence. In  para.  33  of  his  deposition,  he  states:—
"If  any  such  occasion  had  arisen  on  account  of  which  I  would  have  been compelled  to  keep  valuables,  documents  and  other  articles  in  the Triple  Lock  Room,  I  would  have  entered  them  in  the  prescribed Treasury  Double  Lock  Register  of  valuables,  and  I  would  have  made a  note  against  the  entry  that  (he  valuables  or  the  articles  are  kept in  the  Triple  Lock  Room,  and  when  the  said  valuables  or  articles  are transferred  back  to  the  double  lock  room  I  would  score  out  that entry  in  the  register  of  valuables".
Thus,  according  to  the  Treasury  Officer  himself,  even  though  he  was  compelled "through  want  of  space  in  the  Double  Lock,  fie  kept  the  ballot  papers  bags  in the  Triple  Lock  Room,  it  was  his  duty  in  enter  them  in  the  prescribed  Treasury "Double  Lock  Register  in  the  manner  stated  bv  him  above.  But  he  glaringly failed  to  complv  with  the  rules.  The  only  con^lvsion  which  can  be  drawn  under the  circumstances  is  that  any  entry  in  the  Treasurv  Double  Lock  Register  pres- cribed  for  valuables  would  hamper  free  movement  of  the  bags  and,  therefore, "they, were  not  entered  in  this  register.
Even  on  the  1st  of  March  19fi2.  he  did  not  prepare  this  manuscript  register ~Ex. R.  211, although  the  bags  containing  the  ballot  papers  were  already  deposited in  the  Armoury  Strong  Room.  This  manuscript  register  was  not  prepared  till 5th  March  1962".  The  Treasury  Officer  thought  it  wise  not  to  delay  any  further, "The  Chief  Election  Commissioner  was  coming  to  Gonda  to  watch  the  recounting •of  votes  of  Balrampur  Parliamentary  Constituency.
117.  Krishna  Madho  Saran  (R.W.  20)  was  specifiraUy  asked  why  he  did  not prepare  the  manuscript  Ex.  R,  211  on  1st  or  2nd  or  3rd  March  19fl2.  He  gave an  evasive  reply  that  he  and  his  clerks  were  busy  on  1st  March  1962  and  it  was not  TKissible  for  him  to  open  the  Triple  Lock  and  hence  he  could  hot  prepare  the register.

1 i i  THE  GAZETTE  OF  INDlA  EXTRAORDINARY  [PAUT  I I-
Even  when  these  ballot  paper  bags  were  brought  and  kept  into  the  Treasury Double  Lock  Room  they  were  not  entered  in  th<_- prescribed  double  lock  register of  valuables.
In  para.  29,  R.W-  20  (page  18)  says: —
"All  articles,  valuables  and  documents  which  come  inside  the  Treasury Double  Lock  have  got  to  b?  entered  in  that  register".
In  para.  30.  R.W.  20  admits: —
J'If  any  article,  document  or  valuables  comes  into  the  Treasury  Double Lock  and  the  same  is  not  entered  in  that  register  it  would  be  irre- gular  and  gainst  the  rules,  and  these  entries  have  to  be  made  serially day  to  day".
In  para.  31,  R.W.  20  admits:  ~
"So  far  as  the  Treasury  Double  Lock  Room  is  concerned  I  am  governed  by the  Treasury  Manual,  Revenue  Manual  Part  1L  Resource  Manual, F.H.B.  Vol.  V  Part  I,  Civil  Account  Code  and  (CT.K.)  Compilation of  Treasury  Rules".
in  para,. 34,  R.W.  20  says: —
"All  articles  which  are  kept  in  the  Double  Lock  and  are  entered  in  th" register  of  valuables  are  kept  under  orders  of  the  authorities  con- cerned  and  not  on  my  own  authority".
(N.B.  Here  was  the  authority  of  CM.  Nigam  Ex.  R.  51.
Krishna  Mdho  Saran  (R,W.  20)  was  then  asked  in  para.  35  why  the  valuable* viz.  the  ballot  paper  bags  and  boxes  were  not  entered  in  the  Treasury  Double Lock  register  on  1st  March  1962  or  on  any  subsequent  date,  he  gives  only  a confused  reply.
In  para.  36  he  admits  that  the  ballot  paper  bags  and  boxes  were  kept  in  the Treasury  Double  Lock  by  him  under  para.  36  (XIX).  He  further  states  when  he kept  the  ballot  paper  bags  on  1st  March  1962 he  was  acquainted  with  the  provi- sion  of  para.  381 to) of  F.H.B.  Vol.  Part  I.  He  did  not  sock  any  permission  ot any  order  from  any  officer  to  open  .i  manuscript  register  for  the* deposit  of  bag* on  1st  March  1962.
In  para.  40  he  admits  that  in  the  Tr^Jsury  double  Lock  register  In  different serial  numbt-rs  entricn  there  arc  residing  sealed  boxes  containing  nomination napers  and  they  wt-rr  deposited  wider  rmra  30(XIX)  of  F.H.B,  vol.  V  Part  1 as  ordered  by  D.C.  dated  20th  February  1961,  17th  January  1961  and  19th  July 1961  These  were  Election  papers.  This  will  show  that  the  ballot  paper  bags  of 34  Gonda  Parliamentary  election  aKo  should  have  been  similarly  entered  in  the prescribed  Double  Lock  Register  and  riven  serial  numbers.  Thereafter  a  question was  put  to  him  why  they  were  not  so  entered.  In  uaras.  42,  43,  44  and  45  o* bis  cross-examination  he  has  tried,  to  n n le  various  excuses  and  then  finally  in para,  46  he  had  to  admit:—
"Negligence  Kahin  tha  irregularity  zaroor  hm  tired  hone  ki  wajah,  se  irre- gularity  ho  gai".
1)8  It  is  abundantly  clear  from  the  above  statements  of  the  Treasury  Officer that  he  violated  all  rules  regarding  the  keeping  of  the  ballot  paper  bags  and tmterine  them  in  the  prescribed  Double  Lock  Regisler  of  valuables.  I  would  say he  deliberately  avoided  making  entries  of  deposit  of  the  bags  in  the  Treasury Double  Lock  Register  for  valuables.  Had  they  been  entered  m  the  prescribed Double  Lock  Ref tsl.er,  according  to  serial  numbers,  slips  would  have  been  attach- ed  to  the  respective  ballot  papers  bags  bearing  the  corresponding  serial  number of  the  register.  This  would  certainly  have  prevented  the  possibility  of  the  ran- dom  movement  of  the  bags.
119.  The  Treasury  Officer,  In  para.  75  of  his  cress-examination,  admits: —
 
"I  did  not  attach  the  slios  on  the  bags  which  were  deposited  bearing  the serial  number  wb>h  was  corresponding  to  the  serial  number  in  the weister  In  the  Treasury  whenever  rm  article  is  deposited  I  enter the  same  in  the  Treasury  Double  Lock  Register  that  is  in  the  register of  valuable  against  a  serial  number  recorded  in  the  register  and  that serial  number  is  noted  on  the  article  concerned,  and  I  issue  receipts for  the  deposits  by  endorsing  on  the  office  copy  of  the  order  received

• S B C.  3 ( i i )]  T HE  G A Z E T TE  OF  I N D IA  E X T R A O R D I N A RY
8 23
and  entered  at  number  such  and  such.  The  serial  numbers  mention- ed  in  manuscript  register  Ex.  K  211  were  not,  noted  by  me  in  the bags  that  were  deposited.  Rules  of  deposit  were  not  observed".
Non  observance  of  the  rules  in  this  manner  opened  a  scope  I01  commission of  fraud  and  malafide  acts.  It  was  made  easy  for  any  of  the  election  officer  whoric names  appear  in  the  manuscript  register  Ex.  R.  211  in  deposit  and  withdrawal column  to  remove  any  bag  of  their  choice  whenever  they  liked  and  to  bring them  back  at  their  convenience.
In  para.  76,  Krishna  Madho  Saran  (R.W.  20)  admits: —
"The  rules  followed  for  withdrawal  or  return  of  deposit  also  was  not  ob- served  in  the  case  of  ballot  papers  bags Out  of  the  bags  withdrawn  by  Sri  R.  B.  Johari,  there  is  nothing  on the  record  to  show  which  bags  identically  were  withdrawn.  Neither there  is  anything  on  the  record  of  manuscript  register  Ex.  R.  211  to "how  that  R.  B.  Johari  or  any  officer  withdrew  only  those  bags  that were  deposited  by  them  respectively".
Regarding  the  entry  into  the  Double  Lock  on  9th  March,  1M52, Krishna  Madho Saran  (R.W.  20)  in  para.  79  says:—
"I  did  not  enquire  from  Sri  D.  L.  Katiyar  as  to  how  there  were  eight  baga for  one  segment  that  is  Balrampur  South  segment  as  it  did  not  strike me  then  nor  was  I  concerned  with  it  although  there was  difficulty  about  space  but  for  the  compliance  of  the  order  I deposited  also  these  bags  in  the  double  lock  room".
In  para.  80  Krishna  Madho  Saran  (H.W.  20)  say's: —
"I  did  not  enquire  nor  did  T come  to  know  how  the  ballot  papers  of  Balram- pur  Assembly  Scat  happened  to  come  in  Gonda  Tehsil  with  the Tahsildar  Gonda".
"Ex. P.  137  shows  that  the  counting  of  Balrampur  South  Assembly  constituency was  done  in  Balrampur  Tehsil.  It  is  not  known  how  the  ballot  papers  of  Balram- pur  Assembly  seat  happened  lo  be  in  Gonda  Tehsil.  These  bags  were  also  depo- sited  with  the  Treasury  Dnuble  Lock  without  corresponding  entry  in  the  proper register.  This  •was  clearly  a  subterfuge  to  create  confusion  in  the  movement  of bags.  The  Treasury  Officer's  deliberate  mischief  in  not  recording  the  deposit  ot the  bags  in  the  Treasury  Register  of  valuables  was  meant  to  give  all  the  facility to  the  officers  concerned  to  bring  in  or  remove  any  of  the  bags  from  the  Armoury Strong  Room  or  Treasury  Double  Lock  as  and  when  it  suited  them  to  do  so.
120.  It  is  not  disputed  that  the  recounting  of  33  Balrampur  constituency  com- menced  from  the  5th  March  1362  and  the  recount  was  concluded  on  the  7th March  1962.
The  bags  containing  ballot  papers  of  Gonda  Parliamentary  constituency  were not  removed  when  those  containing  ballot  papers  of  Balrampur  Parliamentary constituency  were  taken  out  during  the  above  period.
The  mischief  in  respect  of  the.  bags  containing  ballot  papers  of  Gonda  Parlia- mentary  constituency  began  from  the  8th  March  1962  when  they  were  shown  to have  been  removed  frnm  the  Armoury  Strong  Room  to  the  Treasury  Double Lock.
Normally  there  was  no  necessity  or  justification  to  remove  these  bags  from the  Armoury  Strong  Room  on  8th  March  1962,  which  was  a  public  holiday  and specially  when  the  recounting  was  to  take  place  the  verv  next  day  1.1?.,  from 9th  March  1962.
121.  It  is  significant  to  note  that  no  notice  of  this  movement  was  given  to  the parties  and  particularly  to  the  petitioner  in  spite  of  the  fact  that  his  election agent  had  made  an  application  Ex.  P.  25  nn  4th  March  1962  to  the  Returning Officer,  as  follows:—
"In  spite  of  it  being  a  public  holiday  any  occasion  arises  to  open  the  Ttea- sury  Double  Lock  containing  the  ballot  papers  for  any  valid  purpose, I  may  kindly  be  asked  to  be  present  on  the  occasion.  I  shall  be available  throughout  the  day  at  telephone  No.  98".

82,4  T HE  CA/I-'TTE  OF  IXDM  K\  IRAORDINARY  [PAKI  I I-
The  original  of  this  Exhibit  bears  the  signature  of  the  Returning  Officer  as having  received  it  on  5th  March  19(12  at  9.30  A.M.  He  paid  no  heed  to  this  request.
The  device  to  show  justification  for  removing  the  bags  0J!  the  Gonda  Parlia- mentary  constituency  from  the  Armoury  Strong  Room  to  the  Treasury  Double  T.ock on  8th  March  19(52  has  been  very  cleverly  staged  with  the  assistance  oi  Kali Chander  John  (R.W.  ]9).  who  was  the  Nazir,  Sadar,  Gonda  I'ollectoraie,  and R.  B,  Johri,  Officer  in  charge  of  arms  who  was  also  A.R.O.  On  7th  March  1962 R.W.  19  gets  a  sudden  inspiration  to  arrange  the  arms  serially  which  have  been stored  in  the  Armoury  Strong  Room  on  the  ground  thai  the  Commissioner's  inspec- tion  during  the  month  was  due.
The  Nazir  writes  down  a  report  Ex.  R.  0  addressed  to  the  District  Magistrate requesting  that  the  sealed  packets  containing  the  ballot  papers  which  have  t>een " kept  in  the  Armoury  Strong  Room  he  ordered  to  be  shifted  to  some  other  room  to enable  him  to  arrange  the  artns  for  verification  of  the  Commissioner.  The  Nazir does  not  mention  in  this  report  the  date  on  which  the  Commissioner's  inspection  is due.  This  report  is  submitted  through  R.  B.  Johri.  who  recommends  the  same  day that  the  bags  containing  ballot  papers  which  are  to  be  recounted  may  be  shifted to.the  Double  Lock  and  the  others  to  the  Tehsil  Record  Room.  On  his  recommenda- tion,  the  District  Magistrate  (C.  M.  Nigam)  endorses  "Approved"  on  7th  March  1962.
This  endorsement  is  followed  up  by  the  endorsement  of  R.  B.  Johri  to  Nazir asking  him  to  inform  the  Tehsildar  to  take  the  bags  of  recounted  constituencies  to Tfehsil  and  inform  Treasury  Officer  to  transfer  the  rest  to  Double  Lock.
Kali  Chandra  Johri  (R.W.  19)  has  stated  that  he  did  not  know  when  Ex.  R.  210 (tour  programme  of  the  Commissioner)  was  received  in  the  Gonda  Collectorate,  yet it  struck  him  on  the  7th  March  1062  for  the  first  time  that  the  veriricntion  of  arms was  overdue  (vide  paras  5  and  IB  of  his  deposition).
-  122.  R.  B.  Johri  was  the  ofneer-in-charge  Arms.  The  verification  was  to  be  doae' by  him.  According  to  him  the  Commissioner  only  checked  if  the  annual  verifica- tion  was  done  by  the  omcer-ln-charge  arms.
The  Nazir  wants  to  be  believed  that  he  will  have  to  work  for  abour  R days  for cleaning  and  arranging  the  arms  and  it  will  take  3,  4  days  for  verification  of  the same  and.  therefore,  he  felt  the  urgency  of  getting  the  armoury  strong  room  vacated.
123.  The  falsity  of  "urgency"  set  up  by  the  Nazir  (R.W.  19) is  clear  from  para  18 of  his  deposition,  as  noted  below : —
"It  struck  me  on  7th  March  1962  for  the  first  time  that  the  verification  of arms  was  overdue.  This  idea  struck  me  on  7th  March  1962  because  I came  to  know  about  the  Commissioner's  visit.  8th  and  5th  March  1E><5'2 were  both  Bank  holidays.  Treasury  also  was  closed  on  those  dates. I  cannot  say  what  was  the  urgency  for  shifting  the  ballot  papers  and boxes  on  8th  March  19(32  from  the  triple  lock  although  8th  was  a Collectorate  and  Treasury  holiday.
Q:—There  was  no  work  done  in  connection  with  the  verification  of  arms  on llth  and  18th  of  March  196^.'.  both  being  holidays.  Can  you  give  any reason  why  on  8th  March  every  body  wanted  to  work  when  that  was  a holiday?
Ans-—I  cannot  say  why  on  8th  of  March  1962,  a  holiday,  we  all  worked  when on  llth  of  March  and  18th  of  March  1962  we  did  not  work  because these  were  holidays.
In  para  16  of  his  deposition  he  admits  that  although  he  thought  that  the  Inspec- tion  of  arms  was  overdue,  he  did  not  point  thi3  out  to  the  offieer-in-charge  in January  or  February,  1962.
The  District  Magistrate,  Gonda,  who  was  also  the  Returning  Officer  for  Gon
124  The  reply  of  the  Nazir.  Kali  Chandra  Johri  (R.W.  19.)  in  para  18  of  his deposition  makes  it  abundantly  clear  that  the  so-called  "urgency"  shown  in  Ex.  R.  6 for  removing  the  bags  containing  ballot  papers  from  the  Armoury  Strong  Room,  set up  by  him,  was  faked  In  collaboration  with  R,  B.  Johri  as  well  as  C.  M.  Nigam,
District  Magistrate  of  Gonda.

EC-  W")J  THE  GAZETTE  Or  INOIA  EXTRAORDINARY  o ,-
Really  speaking  there  was  no  urgency  whatsoever  to  remove  the  aforesaid  baits rom  the  armoury  .strong  room  on  3th  March  1962.
The  inspection  of  the  commissioner  as  per  Ex.  R.  210  was  fixed  for  23 rd  and :4th  March  moil.  The  recounting  was  Co  be  finished  within  l i th  March  1W62  and here  was  no  reason  for  such  hurry  to  shift  the  hags  on  8th  March  1902  which  was > holiday
I2,i.  The  Treasury  Officer  has  earlier  in  his  deposition  said  that  the  Armoury strong  Room  has  three  locks  to  store  arms  and  hence  it  was  known  as  Triple  Lock He  has  alsn  stated  that  the  key  of  one  of  these  locks  used  to  be  with  the  Nazir  and the  other  key  with  the  Treasury  Officer.  Whenever  this  room  was  opened  all  the Hirer-  officers  had  to  be  present.  But  Kali  Chandra  John  (R.W.  19)  even  when  he tvas  confronted  with  the  entries  in  Ex.  R.  211  could  not  remember  if  on  the  5th 5th  and  7th  March  l.%2,  R.  B.  John  came  to  the  Triple  Lock  to  take  away  ballot paper  bags  and  thereafter  again  to  deposit  hags  into  the  Triple  Lock,  Ke  also Joes  not  remember  when  Balrampur  ballot  paper  bags  were  put  into  the  Triple Lock  Room  nor  can  he  give  any  reason  why  his  signatures  were  not  obtained  on Ex.  R.  211  wtitn  he  was  the  custodian  of  Ihe  key  of  the  3rd  lock,  (vide  paras  37, 41  and  i'2  of  his  deposition*.  The  following'  admissions  made  by  him  in  para  18  of his  deposition  show  that  he  at  ieast  for  the  time  beinj;  had  no  control  over  the- Armoury  Strong  Room: —
T  did  not  make  any  entry  anywhere  when  the  ballot  paper  bass  and  the ballot  paper  boxes  were  deposited  in  Triple  Lock  on  1st  March  1962. Similarly  I  did  not  make  any  entry  anywhere  When  they  were  shifted from  the  triple  lock  on  8th  March  1962.  But  the  Treasury  Officer  had a  register  in  which  he  took  the  signature  of  the  Tehuildar  when  he handed  over  15  bass  to  the  Tehsildar  on  8th  March  1962.  At  no  other time  I  saw  that  register  of  the  Treasury  Officer.  I  did  not  sign  that register  even  when  the  ballot  bags  and  boxes  were  taken  away  from the  triple  lock  on  8th  March  1962.  The  number  of  boxes  that  were kept  in  the  triple  lock  on  1st  March  1962  was  15  or  16.  1  cannot  say the  exact  number.  The  number  of  gunny  bags  that  were  kept  in  the triple  lock  on  1st  March  1902  was  25  or  30.  I  cannot  say  their  exact number.  The  bags  were  of  the  size  like  those  in  which  grains  are carried."
126.  It  is  clear  that  the  Nazir  was  not  present  on  any  of  the  occasions  when  the Armoury  Strong  Room  was  opened  and  the  Treasury  Officer  and  R.  B.  ,/ohri  were engaged  in  the  movement  of  the  bags.
The  Treasury  Officer,  Krishna  Madho  Saran  (R.W.  20)  in  para  13  of  his  deposi- tion  stated  that  8th  and  9th  March  1962  were  declared  holidays  for  Id  but  the Treasury  Office  was  opened.  At  first  the  Agent  of  the  Government  Treasurer  came to  him  and  Informed  him  that  ballot  paper  bags  of  Gonda  Parliamentary  consti- tuency  were  to  be  shifted  from  Triple  Lock  to  Double  Lock.  Then  at  about  1  or 1.30  P.M. the  Nazir  also  arrived  and  gave  the  same  information.  At  2  P.M. C.  M. Nigam,  R.  B.  .Johri  and  D.  L.  Katiyar  came  there,  Ex.  R.  C  was  handed  over  to the  witness  by  Tehsildar.  Gonda.  Thereafter,  all  of  them  went  inside  the  Triple Lock.  15  bags  of  Balrampur  Parliamentary  constituency  relating  to  A.R.Os— R.  B.  Johri  5  bags,  Devanand  Caur  8  bags  and  S.  R.  Misra  2  bags,  were  made  over to  the  Tehsildar."
127.  Krishna  Madho  Saran  (R.W.  20)  in  para  .ri9  after  seeing  the  entries  In pages  2  and  3  (bottom)  of  Ex.  R.  211  says  that  the  number  of  Parliamentary  bags deposited  by  R.  B.  Johri  was  fi.  After  reading  Ex.  P.  118-C  and  page  2  (bottom) of  Ex.  R  211. he  said  that  S.  R.  Misra  deposited  2  bags  of  Balrampur  Parliamentary constituency  and  D.  W.  Gaur  deposited  8  bags.  Thus,  according  to  him.  in  all  1H ballot  papers  bags  relating  to  Balrampur  Parliamentary  constituency  were  deposit- ed  in  the  Treasury,
This  is  contrary  to  his  previous  statement  wherein  he  has  said  that  there  were 15  bags  of  Balrampur  Parliamentary  constituency  which  were  made  over  to  Tehsll- riar.  Gonda  on  8th  March  1H82.
In  para  "0,  he  says  that  the  delivery  of  15  bags  was  made  to  Tehsildar  from  the Triple  Lock  Room.  Thereafter,  he  came  to  the  Double  Lock.
He  gives  a  ridiculous  explanation  for  not  making  an  entry  in  the  Triple  Lock Roem,  because  there  was  no  chair,  no  table  and  no  arrangement  for  writing.
*  K  close  examination  of  the  entries  in  Ex.  R.  211  in  respect  of  the  deposit  of Balrampur  ballot  paper  bags  throws  much  light  as  to  the  manner  how  the  accouaw were  kept.

r HI  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  I I-
S26
S.  R.  Misra  deposited  5  ba^s  on  l<-t  March  1962,  out  of  which  2  bags  were  of UtrauJn  segment  of  Balrampur  renstituer.iry  vide  Memo  Ex.  P.  118-C.
Devanand  Gaur,  S.D.O.,  Balrampur  deposited  in  all  8  bags  relating  to  Balram- pur  South,  Balrampur  North  and  Tulsipur  segments  of  Balrampur  constituency  on 6th  March  1962.  He  was  A.R.O.  of  these  three  segments.
On  1st  March  196-  R.  B.  Johri  deposited  13  bags  nnd  it  must  be  taken  that  this related  to  the  remaining  segment  of  Sadullanagar  of  Balrampur  f-onstituency.
The  extraordinary  feature  is  that  while  for  Utraula  sefjmenl  the  number  of  bags were  only  2  and  for  three  other  segments  in  charge  of  Sri  Gaur  the  number  was 8,  how  could  the  number  of  bags  of  one  segment  Sadullanagar  be  13  bags?
Another  extraordinary  feature  is  that  while  on  1st  March  1962  the  Treasury Officer  took  Meraos  from  all  the  other  A.R.Os.  of  Balrampur  as  well  as  Gonda Parliamentary  constituencies  when  they  deposited  ballot  paper  bags,  why  he  did  not tftke  a  similar  memo  from  R-  B.  Johri.  The  only  note  in  this  connection  is Ex.  P.  118-B—"R.  B.  Johri  13 bags".
Ex.  P. 11&-D.
"Deposited  13  bags  In  Double  Lock—Sd/-  R.  B.  Johri  1-3-62  3.50 P.M."
Ex.  P.  118-E.
"Kept  them  in  Double  Lock  in  the  presence  of  D.M.  and  DEO,  5  bags returned  to  Tehsildar,  Gonda  t'idp  D.M.'s  order  dated  7th  March 19QZ, signed  T.O.  dated  8th  March  1962".
Ex.  P.  11B-A.
"Issues—Received  3  sealed  bags  of  Sadullanagar  constituency—Sd/-  R.  B. Johri  for  R.  O.  Sadullananar  5th  March  1962."
The  entries  below  the  name  of  RJ. B.  Johri  in  Ex.  R.  211  indicate  that  on  6th March  1962.  7  bags  were  taken  away  by  R.  B.  John  on  the  allegation  that  tftey were  Assembly  bags  and  in  the  remarks  column  R.  B.  John  has  noted  Deposited in  Judicial  Record  Room"—Sd.  R.  B.  Johri  6th  March  19ft2".
128  Krishna  Madho  Saran  (R.W.  20)  in  para  51  of  his  eross-examination  stated lhat  at  the  time  when  13 bags  were  deposited  by  R.  B  Johri,  he  did  not  know  that there  were  7  Assembly  bags  also  included  Jn  the  said  13  hags.  This  Information was  ;;iven  to  him  by  R.  B.  Johri  himself.
From  the  statement  in  paragraph  52,  it  Is  clear  that  he  did  not  know  the  con- tents  of  those  bass  whether  they  were  really  Assembly  ballot  papers.
R  B  Tohri  was  himself  the  District  Election  Officer  arid  H.A.O.  of.both  the
It  appears  that  the  entry  of  U  bags  was  purely  fictitious.
ing  to  Gonda  Parliamentary  constituency.
Krishna  Madho  Saran  (R.W.  20)  stands  self-condemned  from  the  nature  of  his replies  in  paragraphs  52  to  61  of  Ms  cross-examination.
election  agent.

SEC.  3(ii)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  827
130.  There  is  yet  another  important  feature  regarding  the  movement  of  bags One  Pratap  Narain  Tevw.ri,  a  candidate  tor  the  Balrampur  South  Assembly  scat filed  an  application  for  recour.tiuq  Ex.  R.  3  on  7th  March,  1962,  on  the  very  day the  Nazir  had  put  up  his  report  Ex.  R.  ti  for  vacating  the  Armoury  Strong  Room
The  Returning  Officer  of  Blarnmpur  South  was  D.  N.  Gaur  and  the  cuuntlni of  Balrampur  South  was  held  in  Ealrampur  Tchsil  ride  Ex.  P.  137-A.  It  is  extra- ordinary  that  these  ballot,  papers  have  been  mentioned  as  lying  in  Gonda  Tehsil It  is  not  known  or  has  it  been  explained  how  they  found  their  way  from  Balram- pur  Tchsil  to  Gonda  Tehsil.  Curiously  enough  this  application  Ex  R.  3  was moved  also  on  7th  March,  1962  and  it  was  addressed  to  the  District  Magistrate, Gonda  who  was  not  the  Returning  Officer  so  far  as  Balrampur  South  Assembly constituency  was  concerned.
It  will  be  significant  to  note  that  though  C,  M,  Nigam  was  not  concerned  with Pratap  Narain  Tewari's  application  Ex.  R.  3,  still  he  passed  an  order  thereon  the same  day  that  the  bags  may  lie  transferred  to  the  Treasury  Double  Lock.  This order  was  addressed  to  Tehsildar,  Gonda.  Tehsildar  Gonda  knew  about  District Magistrate's  order  on  Ex.  R.  G in  pursuance  of  which  the  Triple  Lock  was  opened on  8th  March,  1962  and  allegedly  15  bag's  relating  to  Balrampur  Parliamentary constituency  were  taken  away  by  the  Tehsildar  from  the  Triple  Lock  and  the -  bags  containing  ballot  papers  of  Gonda  Parliamentary  constituency  were  tarns- icrred  the  same  day  from  Triple  Lock  to  Double  Lock.
The  above  movement  of  bags  is  said  to  have  been  done  in  the  presence  of  the Tehsildar,  the  Treasury  Officer,  the  Government  Treasurer's  Agent,  R.B.  Johri, District  Magistrate  and  the  Nazir.  This  naturally  raises  the  question  why  on  the same  day,  i.e.  on  Bth  March,  1962  these  bags  were  not  removed  from  the  Tehsil and  kept  in  the  Double  Lock.
Kali  Chandra  Johri  (R.W.  lfl)  has  .stated  in  para  7  of  his  deposition  that  the Tehsildar  had  come  in  a  Pick-UD.
Krishna  Madho  Sarar;,  Treasury  Officer  (R.W.  20)  stated  in  para  28  that  it was  only  5  minutes  run  by  car  from  Treasury  to  Tehsil.  If  the  movement  was genuine,  these  bags  could  and  should  have  been  deposited  in  the  Double  Lock  on Uth  March,  1962  whon  it  was  specially  opened  fcr  the  purpose,  m  spite  of  its  being a  holiday.  But  this  was  not  done.  The  only  inference  would  be  that  for  some purpose  the  door  was  left  opened  to  bring  in  the  ballot  paper  bags  into  the Treasury  Double  Lock  on  9th  March,  1962  and.  therefore,  I  find  that  these  bags have  been  shown  as  entered  on  Oth  March,  1962.
Krishna  Madho  Saran  (R.W.  20)  knew  that  Pratap  Narain  Tewari  was  a candidate  for  Assembly  seat  from  Balrampur  constituency,  but  at  first  he  would not  say  in  which  segment  he  sought  election.  He  was  then  confronted  with  the endorsement  made  by  him  in  Ex.  R.  211  (column  4),  He  says  ; —
"That  endorsement  "Balrampur  South  Shri  Pratap  Narain  Tewari's  Seat" is  in  my  handwriting."
Xrishna  Madho  Saran  (R.W.  20)  in  para  79  slated :—
'I  did  not  enquire  from  Shri  D,  L.  Katlyar  as  to  how  there  were  8  bags  for one  si'fcmont  i.t.  Balrampur  South  segment  as  it  did  not  strike  me then  nor  was  I  concerned  with  it  although  there  was difficulty  about  space  but  for  the  compliance  of  the  order  I  deposited also  these  bags  in  the  Double  Lock  Room."
In  para  80  he  says ;—
"I  did  not  enquire  nor  did  1  come  to  know  how  the  ballot  papers  of Balrampur  South  Assembly  r>eat  happen  to  come  in  Gonda  Tehsil  with Tehsildar  Gonda."
In  para  25  he  has  said  that  on  9th  March,  1962  the  bags  were  deposited  In Treasury  Double  Lock  as  per  Ex,  R.  3  between  9  and  10  A.M.
"S.D.M..  Gonda  (A.  S.  MIsra)  had  nothing  to  do  with  the  Treasury  of Gonda.  S.D.M.,  Gonda  had  nothing  to  do  with  the  counting  of  ballot papers  of  Pratap  Narain  Tewari  and  he  had  nothing  to  do  with election  matter  relating  to  Balrampur  constituency."
 
Still,  though  he  was  A.R.O.  for  Gonda  East  and  Gonda  West  segment,  he  was present  along  with  the  District  Magistrate  (C.  M.  Nigam)  when  the  alleged  bags

g2g  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  I I-
of  Pratap  Naraln  Tewari  were  kept  in  the  Double  Lock  in  the  morning  of  9th March,  1962  \vide  deposition  of  Krishna  Madho  Saraii  (B.W.  20)  m  ,wra  26],
131.  The  presence  of  these  two  officers  on  the  above  occasions  is  very  signi- ficant.
Bags  containing  ballot  papers  of  Gonda  East  and  Gonda  West  segments  of Parliamentary  constituency  were  in  charge  of  A.  S.  Misra  who  was  the  A.R.O. of  those  segments  and  how  was  CM.  Nigam  interested  unless  he  wanted  to  make sure  that  the  ballot  papers  of  the  above  two  segments  should  be  there  in  the morning  ol  9th  March,  1962  before  recounting  of  Gonda  Parliamentary  consti- tuency  commenced,
Krishna  Madho  Saran  (R.W.20)  in  para  20  of  his  deposition  says  :—. .
"The  S.  D.M.  Gonda  and  the  D.M,  Gonda  came  to  the  Treasury  of  their own  accord  alontf  with  the  bags  containing  the  ballot  papers  of Pratap  Narain  Tewari.  The  time  for  the  opening  of  the  Treasury is  10  A.M  The  D.M.  and  S.D.M.  that  day  did  not  send  to me  any  intimation  that  they  would  he  coming  near  about  9  A.M., but as  the  inspection  work  was  going  on  I  was  in  the  Treasury  Office, that  is  I  was  completing  my  arrears.  No  officer  of  A.G.  Office  was inspecting  on  that  day".
This  is  certainly  a  very  extraordinary  co-incidence.  It  Is  clear  that  even before  office  hour  i.e.  10  A M, the  Treasury  Officer  was  in  the  office  completing his  arrears,  it  is  also  extremely  queer  that  the  District  Magistrate  and  the  S.D.M., Gonda  would  come  along  with  the  ballot  papers  to  the  Double  lock  to  keep  them there  without  any  previous  intimation  to  the  Treasury  Officer  and  without knowing  that  Treasury  Office  would  be  open  at  that  time.  It  is  equally  queer that  S.D.M.  Gonda  and  the  District  Magistrate  himself  would  take  so  much Interest  In  the  safe  custody  of  Pratap  Narain  Tewari's  ballot  papers  as  to  be present  for  the  purpose  although  they  had  nothing  to  do  with  Pratap  Narain Tewari's  election.
132.  The  alleged  entry  of  Pratap  Narain  Tewari's  ballot  papers  in  the  morning of  9th  March,  1962  was  merely  a  blind  for  bringing  in  into  the  Double  Lock  some bags  containing  ballot  papers  ot  Gonda  Parliamentary  constituency  which  must have  gone  out  of  the  Double  Lock  on  8th  March,  1962  or  earlier.  There  were outward  movements  of  ballot  papers  from  the  Strong  Room  both  on  6th  Mai eh, 1962  and  8th  March,  1962.
The  Treasury  Officer  could  not  give  any  reason  why  on  8th  March,  1962  when the  ballot  papers  bags  and  boxes  wece  transferred  from  the  Armoury  Strung Room  to  the  Treasury  Double  Lock  room,  the  bags  containing  ballot  papers  of Paratap  Narain  Tewari  also  were  not  shifted  from  the  Teb3il  to  the  Treasury Double  Lock  (vide,  para  28  of  Krishna  Madho  Saran  R.W.  20's  deposition).
The  Treasury  Officer  Krishna  Madho  Saran  (R.W.  20)  In  paragraphs  72,  73, 74.  75  and  76  of  his  cross-examination  has  mentioned  about  the  bags  brought  by R.B.  Johri,  as  shown  in  Ex.  R.  211.
In  paragraph  76  of  his  cross-examination  he  says :—•
"I  did  not  issue  receipts  for  the  deposit  of  ballot  paper  bags  and  boxes excepting  two-  cases  namely  A.  S.  Misra  and  D.  N.  Shukla.  There- fore,  the  rules  followed  for  withdrawal  for  return  of  deposit  also  was not  observed  in  tho  case  of  ballot  paper  bags.  On  1st  March,  1982, all  the  ballot  papers  bags  deposited  by  different  officers  were  kept In  the  Triple  Lock  room  at  separate  places,  and  slips  were  kept  noting the  officer's  name  on  the  respective  lots,  I  do  not  remember  who wrote  those  slips  whether  it  was  myself  or  my  clerk.  Those  slips are  not  with  me.  If  they  are  existing,  then  they  may  be  lying  in  the triple  lock  room.  Out  of  the  bags  withdrawn  by  Shri  R.  B.  Johri, there  is  nothing  on  the  record  to  ihow  which  bags  identically  were withdrawn.  Neither  thore  is  anything  on  the  record  of  manuscript register  Ex,  R.  211  to  show  that  R.  B.  Johri  or  any  officer  withdrew only  those  bags  that  were  deposited  by  them  respectively".
133,  The  entries  and  the  manner  they  were  made  in  the  manuscript  register Ex.  R.  211  would  make  it  clear  that  the  Treasury  Officer  and  the  Assistant Returning  Officer  have  been  juggling  with  the  entries  to  make  a  show  of  deposit and  withdrawal  of  bags  on  different  dates  to  and  from  the  Armoury  Strong  Room and  the  Treasury  Double  Lock  particularly  on  8th  March,  1962  and  9th  March, 1962.

SEC.  5(ii)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  82Q
These  was  nothing  to  prevent  the  A.R.O.  of  Gonda  East  and  Gonda  West  seg- ments  to  take  away  the  bags  of  then  two  segments  and  both  of  the  Assembly  bags on  8th  March.  19tW  and  to  bring  them  back  on  9th  March,  1962  to  the  Treasury Double  Lock  along  with  the  bags  of  ballot  papers  of  Pratap  Narain  Tewari  with- out  detection.  The  reason  why  the  D.  M.  Gonda  and  A.  S.  Misra  were  present when  the  bags  were  brought  In  on  9th  March,  1962  is  quite  plain,
134.  The  recounting  of  Mankapur  segment  finished  on  Bth  March,  1962.  On the  same  day,  70  polling  station  of  Mahadeva  were  finished.  On  10th  March, l"t3U,  llrst  of  all  the  remaining  polling  stations  of  Mahadeva  were  taken  up  and tlnished  and  then  the  recount  of  Gonda  North  was  taken  up  and  finished  by lunch.  In  the  recounting  of  the  abovementioned  segments  the  variations  were only  minor  which  would  appear  even  under  normal  conditions.
The  resultant  change  in  recounting  of  these  three  segments  was  (plus)  3  in favour  of  the  petitioner.
135,  The  petitioner  in  paragraph  58  of  the  petition  has  given  an  account  of  the recounting  of  votes  in  Gonda  East  Assembly  segment  which  commenced  after lunch  break  on  10th  March,  1962.
V,B.  Bhadkamkar  (P.W.  2)  in  para  50  of  his  deposition  says:—
"The  first  round  of  recounting  of  Gonda  East  segment  commenced  shortly aftor  '1  P.M.  The  second  round  commenced  shortly  before  3 P.M. During  the  first  round  of  recounting  of  Gonda  East,  at  one  polling station  some  Ballot  papers  bearing  an  additional  mark  other  than  the voting  mark  in  the  cage  of  the  petitioner  were  found.  These  ballot papers  wore  found  in  the  bundles  of  valid  votes  of  the  petitioner  in the  first  count.  After  the  second  round  commenced  and  as  the  packets of  ballot  papers  were  being  opened  and  taken  out,  a  very  large  num- ber  of  ballot  papers  bearing  such  additional  marks  were  found  at several  polling  stations  in  the  bundles  of  valid  votes  of  the  petitioner a* flrsi! count".
In  para  51. he  states:—
"When  I  saw  that  such  a  large  number  of  ballot  papers,  at  so  many  polling stations  were  found  and  after  I  noted  their  characteristics  and  having seen  the  process  of  first  counting  myself,  I  came  to  the  conclusion that  such  large  number  of  double  marked  ballot  papers  would  not have  been  included  in  the  bundles  of  valid  votes  of  the  petitioner, ond  that  the  ballot  papers  must  have  been  tampered  with  after  the first  coun^  and  before  recount.  These  additional  marking  on  the ballot  papers,  which  were  either  in  the  cages  of  Respondent  1  or  2 or  3  werp  lightly  impressed,  generally  showing  only  half  or  less  than half  of  the  voting  sealing  impression  which  was  lighter  in  shade  than that  of  the  bold  marks  in  the  petitioner's  cage  and  when  compared with  each  other  these  additional  marks  in  the  cages  of  respondent 1  or  2  or  3  were  similar,  but  they  were  strikingly  different  from  the bold  but  varying  marks  in  the  cage  of  the  petitioner".
In  para  49  at  page  29  he  states:—
''At  the  same  time,  In  the  bundles  of  rejected  ballot  papers  at  some  polling stations,  were  found  ballot  papers  which  had  been  reiected  at  the first  count  on  the  grounds  of  "R.N.M."  or  "R.M.B.A."  and  were initialled  and  dated  by  the  A R.O.  but  were  now  having  a  lightly impressed  voting  marks  in  the  cage  of  Respondent  No.  1,  "R.N.M." was  the  symbol  for  "Rejected  No.  Marking"  and  R.M.B.A.  for "Reiected  marked  on  blank  area"."
Most  of  the  above  facts  were  also  admitted  in  general  by  Rama  Nath  Misra (R.W.  1)  in  para  47  of  his  deposition.
136.  (a)  The  evidence  of  V.  B,  Bhadkamkar  (P.W.  2)  has  been  corroborated by  N-  Dandekar  (P.W.  1)  as  well  as  by  P.  S.  Subramanian  (P.W  3)  vide  paras 2  to  7.
P.  S.  Subramanian  (P.W.  3)  in  para  3  of  his  deposition  has  stated  that :—
"On  a  closer  watch,  I  found  that  this  was  a  case  of  tampering  in  that  the second  faint  mark  could  not  have  been'made  simultaneously  when the  original  mark  was  made".

830  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  I t-
In  para  5 he  states: —
"I  suggested  the  R.O.  that  he  should  ask  lor  an  explanation  from  the  A.R.O. as  to  why  some  of  the  ballot  papers  had  been  rejected  by  him, although  they  contained  a  mark  against  one  of  the  contesting  candi- dates.  But  the  H.O.  did  nut  cn\i  for  ihe  explanation  although  I Rave  him  a  draft  for  the  purpose".  (Ex.  P.  111).
P,  S,  Subramanian  (P,W.  3)  is  very  clear  in  para  6  of  his  evidence  that  about 30  polling  stations  of  Gonda  East  were  counted  when  he  took  the  above  action. This  happened  at  about  3-30  P.M.  on  the  10th  March,  J962.
In  para  ti,  he  further  says: —
'  I  then  immediately  took  the  R.O.  to  an  adjoining  room  and had  discussions  with  him.  I  went  to  the  Collector's  residence  along with  the  Returning  Officer  at  about  5  P.M.  Collector/R.O.  himself rang  up  the  Chief  Election  Commissioner,  New  Delhi  and  told  him about  these  happenings  and  thereafter,  I  was  told  by  Sri  Nigam,  R.O. that  the  Chief  Election  Commissioner  wanted  to  speak  to  me  on  the phone.  I  gave  the  C.E.C.  a  gist  of  what  had  happened  there  and  also told  him  that  we  were  keeping  an  account  ol  all  these  ballot  papers which  seemed  to  be  abnormal  and  would  report  later,  and  in  the meantime  I  was  directing  the  Returning  Officer  not  to  declare  the result.  The  Chief  Election  Commissioner  approved  and  said  I  should let  him  have  the  report  when  the  counting  is  over.  Then  we  returned to  recounting  place  and  finished  the  remaining  polling  station  of Gonda  East  which  was  completod  at  about  8  P.M.".
He  has  further  deposed  in  paragraphs  7,  8  and  9  as  follows :—
Para  7: —
''Recounting  was  started  on  llth  March.  1962  of  Gonda  Weat  and  one bundle  of  one  polling  station  of  Gonda  East  which  was  not  available on  the  previous  day.  On  the  llth  similar  abnormality  in  ballot capers  were  in  Gonda  West  as  were  found  In  the  Gonda  East.  By lunch  time  on  llth  March,  1962  the  recounting  of  all  the  polling stations  were  finished.  At  that  time  we  did  not  discuss  anything. But.  when  we  were  having  lunch  at  the  residence  of  the  ColleL'toi, I  told  him  that  we  should  report  the  full  facts  to  the  C.E.C.  and  if possible  get  him  on  telephone.  In  the  meantime,  the  result  should not  be  declared  and  for  this  purpose  I  told  him  that  I  would  sign  a formal  order,  a  draft  of  which  I  had  given  him  the  previous  night. But  he  did  not  give  me  the  order  for  signature  but  assured  me  that he  would  not  declare  the  result.  I  had  dictated  the  draft  to  the Stenographer  of  the  Collector  In  his  presence.  One  was  a  report from  the  R.O.  to  the  C.E.C.  giving  the  gist  and  the  other  a  formal direction  to  the  Returning  Officer  ordering  him  not  to  declare  the result  for  which  I  had  already  taken  the  approval  of  the  CE.C".
Para  8: —
"Both  the  typed  drafts  were  placed  before  me,  on  which  I  made  some changes  and  save  to  the  R.O.  for  retyping.  I  was  staying  with  the Returning  Officer  at  Gonda  from  9th  March  to  llth  March,  1062.  I did  not  accompany  the  R.O.  after  lunch  to  the  place  of  recouziting a.s  he  assured  me  that  he  would  not  declare  the  result.  The  peti- tioner  saw  me  at  about  3-30  or  4  P.M.  on  llth  March.  1962  He Informed  me  that  the  result  had  been  declared.  But  before  this  I was  aware  of  the  fact  from  the  R.O.  himself  that  the  result  had  been declared.  I  was  upset  because  my  orders  were  not  carried  out  by the  R.O.  He  had  actually  cheated  me".
Para  9: —
"The  two  corrected  drafts,  I  took  back  from  the  R.O.  He  was  reluctant  to part  with  them,  I  took  them  to  Delhi  after  taking  them  from  him. T have  brought  those  drafts  with  me.  I  am  placing  them  before  the Tribunal.  The  drafts  are  Exs.  P.  109  and  110.  They  bear  the  correc- tions  made  by  me  on  them.  The  draft  for  the  explanation  from  the A.R.O.  was  not  issued.  I  produce  it  before  the  Tribunal.  This  is Ex,  P.  Ill,  The  A.R.O.  did  not  submit  any  explanation".
 
Nothing  has  been  made  out  in  the  cross-examination  of  P.W.  3  to  discredit  his testimony.  The  best  evidence  to  rebut  what  he  has  said  above  would  have  been that  of  C.  M.  Nigam,  the  Returning  Officer.  Respondent  No.  1  has  not  examined

SEC.  3(ii)J  THE  GAZETTE  Ol  INDIA  EXTRAORDINARY  831
him.  P.  S.  Subramanian  (P.W.  3)  is  a  dis-intcrested  witness  and  I  have  no hesitation  In  accepting  his  above  evidence  as  true.
136.  (b;  From  the  evidence  of  V.  B,  Bhadkamkar  (P.W.  2)  para  55  and  from the  progressive  Chart  in  paragraph  96  of  the  judgment,  it  will  be  clear  that  the lead  of  the  petitioner  was  overtaken  during  the  recounting  of  ballot  papers  of polling  station  No.  74  Gonda  East.  At  the  close  of  th"  recount  of  polling  station No  40  of  Gonda  West,  the  Respondent  No.  1  obtained  a  lead  of  389  votes  over petitioner.  Thereafter,  the  Returning  Officer  seems  to  have  lost  interest  in  scru- tinizing  the  ballot  papers.  He  began  to  overlook  these  ballot  papers  which  were counted  in  favour  of  the  petitioner  at  the  first  count,  but  which  as  a  result  of tampering  were  liable  to  be  rejected  for  the  same  reasons  for  which  similar  ballot papers  had  been  rejected  at  the  recount.
Following  are  the  ballot  papers  which  should  have  also  been  rejected  by  the Returning  Officer  at  the  recount :—
Gonda West
Polling  Station  Nn.  No.  of  Vote:,  Exhibits
4T 42
43
45
54
60
68
13  •  -  •  P.  99/I-I3 14  . . ..  P.  100/1-14
7  . . ..  P.  101/1-17
38  . . ..  P.  102/1-38
4  . . ..  P.  104/1-4
16  . . ..  P.  105/1-16
S  P.  106/1-8
Further,  under  the  same  circumstances  the  following  ballot  papers  were  not validated  in  favour  of  Respondent  No.  1  although  many  of  them  (vide  progressive chart)  In  similar  conditions  were  validated  in  respect  of  polling  stations  prior to  recount  of  polline  station  No.  42  Gonda  West.
Gonda  West
Exhibits No.  of  Votes
Polling  Station  No-
42  . ..
43
45  . ..
53 60  . ..
68  . ..
P.  too/15-17 3  . ..
P.  101/8-10 3 I  . ..
P.  102/39 P.  103/1-8 8 3  . ..
P.  105/17-19
P.  106/9-13 5  -  •  •
This  would  indicate  the  interest  which  the  Returning  Officer  took  in  the  success of  Respondent  No.  I  at  the  recount.
137.  V.  B.  Bhadkamkar  (P.W.  2)  has  stated!  in  para  56  of  his  deposition  that  in the  last  round  of  recounting  cf  Gcnda  RasL  Segment,  it  was  dis:ovrred  that  the packet  of  Parliamentary  votes  of  polling  station  No. 37 was  missing  and  in  its  place there  was  a  packet  of  Assembly  votes  of  the  same  polling  station.  During  the recount  of  Gonda  West  Segment  17  packets  of  Parliamentary  votes  of  different polling  stations  were  found  missing.
In  para  57  he  states: —
"These  18 missing  packets  were  found  subsequently  at  the  close  of  recount- ing  of  Gonda  West  Segment,  These  packets  were  brought  by  £hrl A.  S.  Mlsra  to  the  recount  hall  and  it  was  given  out  that  they  had  been found  In  the  Assembly  bags  of  Gonda  East  and  West  Segments.

g a2  THE  GAZETTE  OF  INDlA  EXTRAORDINARY  [PART  I I-
In  para  58  he  says: —
"In  the  ballot  papers  of  these  missing  packets,  none  were  found  with
abnormal  feature."
The  above  evidence  of  V.  B.  Bhadkamkar  (P,W.  2)  is  with  reference  to  the statement  made  by  the  petitioner  in  paras  65  and  66  of  the  petition.  The  facts deposed  to  by  V.  6.  Bhadkamkar  (P.W.  2)  have  been  admitted  bv  the  Respondent No.  1  in  para  65  and  66  of  his  written  statement  except  that  abnormal  features were  not  found  in  the  ballot  papers  of  these  packets  which  were  missing  and  sub- sequently  brought  by  A.  S.  Misra.
13&. No  abnormality  was  found  in  the  ballot  papers  of  polling  stations  87  Gonda East  and  polling  Stations  65, 69, 70 to  73, 75 to  82, 84 to  86  of  Gonda  West  Assembly segment.  Only  in  the  polling  station  Nos.  given  below  and  that  too  of  insignificant numbers.
P S. No.
GONDA  EAST  87
GONDA WEST  6<; 69 70 71 72 73 75 76 77 78 79 Ho 81 82 84 85  - R6 Petitioner
Respondent No. 1
1st  count  Recount ibt  count  Recount
1S4  183 (— 1)
264  263  (—1)
No change
199  198 (—1) 127  126 (—1) 162  157  (~5j 99  98 (—1) 75  7A  C—i) 7"  75 (—3)
91  38 (—3) No  Change No change Nu  change No  change No change No change 136  134 (—2) 20  19 (— 1)
No  change
55  "53  (—2)
No change No change 128  127 (—1)
No change No  change 150  151  (+1) No  change 124  123 (—1) No  charge 141  I4°(—r) 145  146 (+1) No change No change No change 210  209 (—1*1 279  276 (—3)
At  the  time -of  recounting  these  were  not  in  the  bags  of  ballot  papers  of  Gonda  East and  Gonda  West  segment.  They  were  brought  by  the  Assistant  Returning  Officer from  somewhere  (see  deposition  of  V.  B.  Bhadkamkar  (P.W.  2)  paras  31  and  32).
The  above  fact  is  admitted  by  Respondent  No.  1 in  his  written  statement  paia 65,  except  that  petitioner's  version  that  no  abnormality  was  found  in  thosr  ballot papers  was  incorrect.
139.  The  affidavit  of  A,  S.  Misra,  Assistant  Returning  Offictr  (before  Hon'ble High  Court  Lucknowl  Bench)  is  to  the  effect  that  every  thing  was  done  properly at  the  first  count.  The ballot  papers  which  were  wrongfully  validuted  for  Congress on  recount  shown  in  the  chart  at  pages  75,  76  and  77  were  rejected  as  "R.M.3.A." and  "R.N.M."  in  the  first  count.  They  were  found  to  bear  a  voting  mark  in "BULLS"  cage  at  recount.  It  is  impossible  firstly  that  the  counting  htaff  would put  the  ballot  papers  bearing  a  mark  in  the  "BULLS"  cage  in  the  doubtful  tray and  secondly  such  ballot  papers  would  be  stamped  '"R.N.M."  or  '-R.M.B.A."  after being  scrutinised  by  the  A.R.O.  That  they  were  so  marked  is  ample  evidence  that at  the  first  count  those marked  "R.N.M." had  no marks  and  those marked  "R.M.B.A." had  a  mark  in  the  Blank  Area.  The  marks  in  the  "BULLS"  caga  found  on  these ballot  papers  at  the  time  of  recounting  must,  therefore,  be  the  result  of  tampering. It  is  also  significant  that  these  features  were  found  at  the  recount  in  favour  of Respondent  No,  1  and  not  in  favour  of  any  other  candidate.
140,  There  was  sufficient  material  befort  the  Returning  Officer  at  the  time  of recounting  to  postpone  the  declaration  .of  the  result  and! make  further  enquiry  in respect  of  these  ballot  papers  as  directed  by  the  Deputy  Election  Commissioner, P.  S.  Subramanian  (P.W.  3)  with  the  approval  of  the  Chief  Election  Commissioner.

SEC.  3(ii)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  833
The  Returning  Officer  was  interested  in  declaring  the  result  in  favour  of  Respon- dent  No.  1 and  he  did  so  against  the  direction  of  the  Deputy  Election  Commissioner.
It  has  been  established  from  the  evidence  of  1he  roymting  staff  that  no  invalid votes  were  kept  in  the  packets  of  valid  votes  of  the  petitioner  and  further  that  the ballot  papers  marked  "R.N.M ".  "R.M.B.A."  were  correctly  so  marked  and  that they  did  not  have  any  mark  on  th?  "BULLS"  cage  at  the  time  of  counting.
141.  The  following  facts  have  been  established  from  the  evidence  both  oral  and
documentary :•—
(1)  The  so-called  safe  custody  did  not  ensure  any  sa'ety  whatsoever  as  far
as  the  ballot  papers  were  concerned.
(2)  The  Returning  Officer  desifincdly  postponed  the  declaration  of  the  result in;  favour  of  the  petitioner  in  the  early  hours  of  1st  March,  1962  and passed  an  illegal  order  allowing  the  respondent  No.  l's  application  lor recount.  1  < Keen  interest  shown  by  the  Returning  Officer  for  the  success  of  Res- pondent  No.  1  at  the  rccounl. 1
(3)  There  were  unjustified  movement  of  balkrt  paper  bags  when  they  were taken  out  from  the  Armoury  Strong  Room  on  6th  March,  1962  and 8th  March,  1062  and  on  9th  March,  1062  when  they  were  brought  in to  the  Treasury  double  lock.  '
I
(4)  These  movements  ol  thd  bags  were  without  any  notice  to  the  patitioner. They  were  done  behind  his  back  in  spite  of  his  election  agent's  letter Ex.  P.  25.
(5)  For  the  purposes  of  removing  th:  bags  out  of  the  Armoury  SLrong  Room, a  fake  emergency  was  staged  on  7th  March,  1962  by  the  Nazir  in collaboration  with  R.  R.  John  and  the  District  Magistrate,  C.  M. Nigam.
(6)  The  movements  of  the  baps  containing  ballot  papers  for  recount  were manoeuvred  in  a  clever  manner  that  any  bag  or  bags  could  go  out and  Ret  in  before  the  commencement  of  recounting  on  9th  March,  1962. (7)  Extraordinary  features  were  found  in  respect  of  the  ballot  papers  at the  time  of  recounting.  Thnsc  have  been  exhibited.  They  were  put to  V. B,  Bhodkamkar  ( P.W.  2)  in  his  evidence.  They  are  enumerated in  Schedule  'A1,
SCHEDULE  'A'
Ex. P. Nos.
First Count.
Recount Total Witness & Ex. Nos.
P.S. No.
GONDA EAST
R.M.B.A,
2
Valid for R. 1
21
45/1—2 45/3—23. 45/24—69
R.N.M. Valid for P
46 P.W.  11:45/37,  38
57-
46/1—68.
Valid for P
27
68
R.M.V
Valid for R.i
1
9
2S
82
46/69  . 46/70—7S 47/1—82. 47/83—87
R.M.V.
Valid for R. 1
5
47/88—100
R.M.B.A. R.N.M. Valid for P R.N.M. R.M.B.A.
13
32
136
1
P.W. 6:48/1-137 P.W.  11:48/110. 4R/1—136 48/137  . 49/1—169
Valid for P R.N.M. Valid for P
R.M.V. VaJid for R. 1 R.M.V.
33
 
169

834  T HE  G A Z E T TE  OF  TNDIA  EXTRAORDINARY  [PART  I I-
I
2
6
5
3
4
6
50/1—8  .
8
18
Valid for P Valid for  P
R.M.V. R.M.V.
51/1-33  .
33 p.w.  5:51/1—33- P.W.  11:51/26
52/1—112
1 12 P.W.  5:52/1—121.
Valid for  P
34
1 P.W.  14:52/63,  112.
R.M.B.A.
R.M.V. Valid for  R. 1
52/H3  •
(blind voters).
8 P.W.  11:52/10,  28, 52/H4—121
R.N.M.
Valid for  R.  i
43-
36
9
53/i—9  • 54/1—30.
30
37
Valid for  P Valid for  P Valid for  P
R.M.V. R.M.V. R.M.V.
4i
55/1—63.
63 P.W. 4: 55/1—63. P.W.  I I : 5 5 / 43  15* 48  (Ph)j 5 7.
42
12
56/1—12.
Valid for  P
56/13—16
R.M.V. Valid  for R. 1
4
56/17—22
6
57/1—24.
43
43
1
R.M.V. Valid for  R. 1
57/25  • 57/26—29
R.M.B.A. R.N.M. Valid for  P R.N.M. R.M.B.A.
4
14
22
58/1—14. 59/1—22.
44 45 46
P.W.  7:60/1—68.
67
1
P.W.  11:60/24,  27- 60/1—67. 60/68
Valid for  P Valid for  P Valid for P R.N.M. Valid for  P
47
44
1
R.M.V. R.M.V. R.M.V. Valid for R. r R.M.V. Valid for R. 1
6
R.M.B.A. R.N.M. Valid for P
48
61/1—44. 61/45 61/46—51 62/1—73.
R.M.V. Valid for R. 1
P.W. 6:62/1—88. P.W.  11:62/10,47.
73 5
10
62/74—78 62/79—88
51
49 50
P.W. 5164/1—76.
76
52
15
63/1—51. 64/1—76. 65/1—15. 65/16—19
4
10
66/1—10.
53
66/11—13
3
R.M.B.A. R.N.M. Valid for  P Valid for  P Valid for  P R.N.M. Valid for  P R.N.M. Valid for  P
56
>* R.M.V. R.M.V. R.M.V. Valid for R. 1 R.M.V. Valid for R. 1 R.M.V. Valid for R.  1
45 3
R.M.B.A. R.N.M. Valid for  P
P.W. 4:68/1—54.
R.M.V.
57
7 54
67/1—45. 67/46—48 67/49—55 68/1—54.
P.W.  11:68/2,  12,  14, 24,  32,  33,  34  (Ph. Annex.  'C'). P.W. 6:69/1—7.
Valid for  P
64
5
1
R.M.V. Valid for R. 1
69/1—5  . 69/6
1
65 66
P.W. 5:71/1—36. 69/7  • 70/1—34. 71/1—34.
34 34
1
R.M.V. R.M.V. Valid for R. 1
n
1
R.M.B.A. R.N.M. Valid for  P Valid for  P R.N.M. a.M.B.A.
12
VdM*-vP
R.M.V.
71/35  • 71/36  . 72/1—12.

SEC  S(ii)]  THE GAZETTE  OF INDIA  EXTRAORDINARY  8 35
2
I
6
4
5
3
Valid  lor R.  1
3
•"
72/13—T5 72/16—19
4
R.M.V.
R.M.B.A. R.N.M. Vnhd for P
69
P.W.  n:73/6o3 68-70,
85
73/1—85.
71-75- (68,  71,74  (Ph-
Annexurc 'C').
2
Valid for R .i
73/*6—87
73/8S—91
4
70
R.M.V.
R.M.B.A, R.N.M. Valid for P
25
1
74/1—25- 74/26  .
Valid  for R. 1
Ji
74/27—31
5 18
R.M.B.A. R.N.M. Valid for P
75/1—18.
P.W.  4 75 /1 -25.
73
75/19  •
75/20—26
6
7"/i—58.
74
58 16
22
7<5/59—74 77/1—22.
78/1—30.
30
75 78
78/31—39                                                    9
79/1—21          79                                        71
80/1—23.          81                                       23

8l/l—12.
                   S3                                          12
82/1—13.           84                                          13
83/I—16.           85                                          16
                   88

71
1
16
85/1—20.
20 14
85/21—22
2
86/1—23.
23
87/1—3  •
25 33
87/4—10.
*j
87/11—18
88/1—2  .
2
39
2
Sg'i—25.
4i
25
89/26—28
3
8
89/29—36
90/1—24.
42
24
90/25—31
7
10 P.W.  11:91/1.
2
91/1—10. 92/1—B  . 92/9—IO.
93/T—4  •
53
4
8
54
94/9—11.
 
3

g ,g  THE  GAZETTfe  OF  INDIA  EXTRAORDINARY  [PART  11-
2
6
I
4
5
3
2 P.W. 4:95/1—6.
R.M.V.
57
Valid  for  R. T
4
' 93/1—2  , •95/3—6  ,
fio
5
2 P.W. 5:97/1—z.
66
96/1—5  • 97,'i—2  .
R.M.V. R.M.V. M.R.M.V-
Valid for P R.N.M. Valid for P Valid for P Valid for P
68
4
98/1—4 •
These  extraordinary  features  were  detected  by  Narain  Dandekar,  petitioner (PW  1)  and  his  Election  Agent  V.  B.  Bhadkamkar  (P.W.  2).  Deputy  Election Commissioner  himself  was  convinced  that  there  was  tampering  of  the  ballot  papers which  prompted  him  to  direct  the  Returning  Officer  to  maintain  a  separate  account of  these  ballot  papers  in  a  special  lorm  and  to  call  for  an  explanation  from  the Returning  Officer.  He  also  directed  the  Returning  Officer  with  the  approval  of .the  Chief  Election  Commissioner  not  to  declare  the  result  of  the  election.
(8)  The  special  features  with  regard  to  these  ballot  papers  were  as
follows: —
(a)  Th;re  were  no  perceptible  changes  at  the  recounting  so far  as  Manka-
pur,  Mahadeva  and  Gonda  North  segments  were  concerned.
(b)  No  objection  was  raised  at  the  time  of  counting  of  Gonda  East  and
Gnnda  West  segments.
(c)  Objections  were  raised  only  in  respect  of  Mankapur  segment  (vide Ex.  P.I,  p.2,  and  P.  19).  No  appreciable  change,  however,  •.vas found  in  Mankapur  segment  at  the  recounting.  Even  in  Ex.  P. M recounting  was  claimed  in  respect  of  all  the  Assembly  constituency areas  Included  in  the  Gonda  Parliamentary  constituency  and  moic particularly  for  the  areas  01  the  Assembly  constituencies  of  Gonda North  and  Mankapur.
(9)  In  the  final  objection,  the  main  stress  of  respondent  No.  1 was  in  respect of  the  counting  ol  Gonda  North  and  Mankapur  segments.  But  no appreciable  change  was  found  in  these  two  segments  at  the  recounting.
(a)  In  Respondent  No.  l's  application,  Ex.  P.2,  p.19  and  P.3,  there  is  no allegation  that  any  vote  was  wrongly  accepted  for  the  petitioner at  the  first  count.  Th:re  was  thus  no  challenge  in  this  respect  from Respondent  No.  I,  .
(
Very  large  number  of  ballot  papers  accented  as  valid  for  the  petitioner  at the  first  count  were  found  to  bear  multiple  voting  marks  at  ths time  of  recount.  In  fact,  these  were  the  ballot  papers,  which  mate- rially  affected  the  rjsull  of  the  election.  After  the  flrst  count,  the petitioner  was  leading  by  1576  votes  (Including  the  postal  ballots) and  the  number  of  ballat  papers  originally  accepted  as  valid  for petitioner.  At  the  recount  these  'ballot  papers  were  rejected  for multiple  voting  marks  (total  1930)  excluding  two  such  ballot  papers (i)Ex.  P47/2  Polling  Station  No.  28,  Gonda  East  Ballot  Paper  No H30530  and  (11)  Ex. P. 52/87.  Polling  Station  No.  34  Gonda  East, Ballot  Paper  No.  3263H8.  These  two  do  not  bear  voting  marks  in "STAR"  cage.
(b)  Ballot  papers  originally  rejected  as  R.N.M.  and  R.M.B.A.  at  th.-  first count  were  found  to  bear  a  voting  mark  in  "BULLS"  cape  at  the recount  (Total  236).
The  following  are  the  ballot  papers  which  were  orginally  rejtcted  bv  the A.R.O.  and  marked  R.N.M.  or  R.M.B.A.
Ex  P.
 
45/1-23 46/69-78 47/63-100 48/137 52/113-121 56/13-22

SEC.  3(ii)1  THE  GAZETTE  OF  INMA  EXTRAORDINARY  S37
57/25-29 60/68 61/45-51 62/74-88 65/16-19 66/11-13 67/46-55 69/6-7 71/35-36 72/13-19 73/80-91 74/26-31 75/19-25 76/59-74 78/31-39 84/72-88 85/21-22 87/4-18 88/1-4 89/2fi-36 90/25-31 92/9-10 94/9-11 95/3-6
(c)  The  above  changes  at  the  recount  were  all  against  the  petitioner  and in  favour  of  Respondent  No.  1.  These  abnormal  features  were  not detected  at  the  recount  in  case  of  other  candidates,
(d)  AU  ballot  papers  originally  held  as  valid  for  the  petitioner  had  a prominent  mark  in  the  cage  of  the  "STAR"  while  the  subsequent mark  was  in  one  or  the  other  cages  with  comparatively  very  [aint impression,  mostly  half  or  k-ss  than  half.
From  the  above  circumstances,  tampering  of  ballot  papers  by  Respondent  No,  1 ias  been  conclusively  established.  The  facts  stated  above  are  consistent  with  the lypothcsis  of  tampering;  and  tampering  only.  The  circumstances  and  facts  proved 3y  evidence  exclude  every  hypothesis  other  than  that  of  tampering  of  ballot  papers sometime  after  the  first  counting  and  before  the  recounting.  The  above  inference is  fully  supported  by  the  evidence  of  Presiding  Officers.
(
142,  There  is  clinching  evidence  of  Ram  Sarup  (P.W.  12),  Raghunandan  Singh Yadav  (P.W.  13),  Hori  Lai  (P.W.  34)  who  were  Presiding  Officers  of  polling  station 33  Gonda  East,  68  Gonda  West  and  34  Gonda  East  respectively,  which  proves  that there  was  tampering  in  ballot  papers,  i
143.  Ram  Sarup  (P.W.  12)  was  the  Presiding  Officer  at  Polling  Station  33 Gonda  East.  His  diary  is  Ex,  P.  114.  It  shows  that  ballot  papers  Ex.  P.  49/37,  P. 49/46,  P,  49/57,  and  P.  49/82,  were  marked  by  him.  on  being  asked  to  do  so  by blind  voters.  He  categorically  stated  that  he  put  only  one  mark  each  on  the  above ballot  papers.
Undoubtedly  there  must  have  been  only  one  voting  mark  on  each  of  these ballot  papers  at  the  time  of  first  counting,  Other  voting  mark  that  have  appeared on  these  ballot  papers  at  the  time  of  recounting  must,  therefore,  be  the  result  of tampering  done  sometime  after  the  first  counting  and  before  the  recounting.
Hori  Lai  (P.W.  14)  was  the  Presiding  Officer  at  polling  station  34  Gonda  East. Hip  diary  is  Ex.  P.  116  and  it  shows  that  ballot  paper  Ex.  P.  52/28  and  52/43  were marked  by  him  on  being  asked  to  do  so  by  the  blind  voters.  He  has  also  stated on  oath  that  he  affixed  only  one  mark  on  each  of  the  ballot  papers.
This  evidence  also  provep  that  there  was  only  one  voting  mark  on  each  ballot paper  and  the  second  voting-  mark  found  on  them  at  the  time  of  recounting must  have  been  the  result  of  tampering.
Raghunandan  Singh  Yadav  (P.W.  13)  was  the  Presiding  Officer  at  polling station  68  Gonda  West.  His  diary  is  Ex,  P.  115.  It  shows  that  ballot  paper  Ex, P.  106/4  was  marked  by  the  Presiding  Officer  himself  on  being  asked  to  do  so  by the  blind  voter.

838  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  I I-
He  has  stated  on  oath  that  he  put  only  one  mark  on  this  ballot  paper.  It must  have  had  one  voting  mark  at  the  time  of  counting  and  that  the  second  mark which  appeared  on  recounting  must  be  the  result,  of  tampering.
The  testimony  of  Ram  Sarup  (P.W.  12),  Raghunandan  Singh  Yadav  (P.W.  13) and  Hori  Lai  (P.W.  14)  cannot  be  doubted-  Their  evidence  is  supported  by  the diaries  maintained  by  them  at  the  time  01  poll  under  Kule  40(2)  of  the  Conduct of  Election  Rules,  1961.  The  ballot  papers  of  the  blind  voters  were  kept  in  the bags  of  Gonda  East  und  Gonda  West  Segments.
The  above  testimony  of  Ram  Sarup  (P.W.  12),  Raghunandan  Singh  Yadav (P.W.  13)  and  Hori  Lai  (P.W.  14)  leads  to  the  irresistible  conclusion  that  there was  tampering  of  ballot  papers  of  Gonda  East  and  Gonda  West  segments  and the  tampering  could  have  been  possible  only  if  the  bags  containing  the  ballot papers  of  Gonda  East  and  Gonda  West  segments  were  made  available  to  Respon- dent  No.  1 before  9-3-1962  and  were  brought  back  to  the  Treasury  in  the  morninsr of  9-3-1962  between  9  and  10  A.M.
Petitioner  was  shown  the  bags  on  9-3-1962  in  the  Treasury  Double  Lock  just before  the  recounting.  The  wax  seals  of  R.O,  was  found  on  the  bags.
This  has  no  significance.  It  was  not  at  all  difficult  to  obtain  the  R.O.'s  seal and  seal  the  bags  before  they  were  placed  in  the  Double  Lock  on  9-3-1962,
144. Futile  attempt  was  made  by  Respondent  No,  1 to  explain  away  the  double marking  on  the  ballot  papers  of  the  blind  voters  referred  to  by  Ram  Sarup  (P.W. 12),  Raghunandan  Singh  Yadav  (P.W.  13)  and  Hori. Lai  (P.W.  14).
Witnesses—Triloki  Nath  (R.W.  7),  Lok  Nath  (R,W.  8),  Ram  Samulh  Misra (R.W.  9),  Ram  Naresh  (R.W.  10),  Jagdish  Prasad  Singh  (R.W.  11),  Ram  Narain Shukla  (R.W.  12),  Hari  Ram  (.R.W.  13),  Ram  Chandra  Srivastava  (R,W.  16),  and Gurdeo  Saran  (R.W.  17)  were  produced  by  Respondent  No.  1  who  were  made to  say  that  many  of  the  voters  were  not  inclined  to  vote  for  the  petitioner,  but on  pressure  being  brought  upon  them,  they  decided  to  spoil  the  votes  by  putting two  marks  on  the  ballot  paper.  There  is  no  pleading  by  Respondent  No.  1 to  the above  effect  in  his  written  statement.
Their  statement  on  the  face  of  it  is  absurd  and  not  worth  considering.  I  hold that  there  was  tampering  with  the  ballot  papers  between  the  first  counting  and recounting.
I  further  hold  that  the  ballot  papers  •which  were  counted  as  valid  for  petitioner in  the  first  count  and  subsequently  declared  invalid  at  the  recount,  should  be counted  as  valid  votes  for  petitioner.
The  votes  which  were  rejected  at  the  first  count  by  the  A.R.O.  with  the  re- marks  "R.N.M.",  "R.M.B.A."  but  could  be  held  valid  for  congress,  meaning  for Respondent  No,  1,  at  the  recount  by  the  Returning  Officer,  should  be  rejected  as Invalid
145.  There  is  also  evidence  of  C.  T.  Sarwate  (P,W.  11),  who  is  an  additional Government  Examiner  Questioned  Documents  to  the  Government  of  Madhya Pradesh  and  a  consulting  expert  to  t h:  Government  of  Rajasthan,
He  examined  ballot  papers  of  40  polling  stations  of  Gonda  East  and  14 "polling stations  of  Gonda  West  and  submitted  his  report,  which  is  Ex.  P.  113,  in  which he  maintains  that  in  the  large  majority  of  ballot  papers  listed  in  Annexure  A to  his  report,  there  has  been  tampering.
He  says  that  the  Star  voting  marks  and  the  non-star  voting  marks  were  not made  at  the  same  time  that  is  not  made  immediately  after  the  Star  voting  marks or  vice-versa.
He  further  says  that  the  Star  voting  marks  were  made  first  that  is  at  the  time of  voting  and  the  non-staj  voting  marks  were  not  made  at  the  time  of  voting but  subsequently.
The  reason  given  for  the  above  opinion  is  that  a  large  majority  of  non-star voting  marks  are  faint  and  show  a  lack  of  continuity  when  compared  with  the star  voting  marks  as  regards  the  shade  and  deposit  of  ink  in  them.
 
146.  I  have  carefully  examined  each  and  every  ballot  papers,  which  have been  exhibited  by  the  petitioner  as  tampered  ballot  papers  and  find  that  the majority  of  the  non-star  voting  marks  are  either  very  faint  as  compared  to  the

SEC.  3(11)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  839
Star  voting  marks  or  have  incomplete  impressions*  that  is  in  a  large  number  of them  the  ylttr  voting  marks  are  mere  arc;  of  a  circle  like  a  crescent.  In  some  of these  ballot  papers  Ihrre  is  only  slight  difference  in  the  shade  of  ink  in  the  slar voting  mark  I'ix-a-vis  the  non-star  voting  mark.  Such  marks  which  do  not  show much  difference  in  the  shade  of  ink,  in  my  opinion,  would  be  those  which  were impressed  immediately  L'fter  inking  at  the  time  of  tampering,  because  the  first impression  at  the  time  of  I aippering  will  have  a  good  flow  of  ink  and  subsequent maiks  hy  the  same  seal  at  the  time  of  tampering  would  become  gradually  faint more  and  more,  and  will  thus  show  lack  of  continuity.  However  in  cases  where 
147.  Most  important  feature  about  which  C.  T.  Sarwate  (P.W.  11)  has  given his  opinion  is  in  respect  of  tlic  ballot  papers  listed  in  Annexurc  'C  to  his  report. .Enlarged  photographs  of  these  ballot  papers  have  also  been  filed  by  him,
C.  T.  Sarwate  (P.W.  IX)  has  deposed  in  respect  of  these  ballot  papers  that upon  critical  examination,  the  undermentioned  features  of  a  distinctive  character were  disclosed:—
(1)  A  characteristic  break  in  the  circular  ring  of  the  impression, (21  A  similar  characteristic  break  in  the  arm  of  the  cross  nearest  to  (1) above  and  to  the  left  of  it.
(3)  A  characteristic  mark  usually  line  across  the  circular  ring  to  the  left  of
(2)  above.
(4)  A  sharp  angular  projection  at  the  right  extremity  of  the  break  re-
ferred  to  in  1  above.
(5)  All  the  above  characteristics  are  almost  in  a  line  and  are  in  a  fixed position  in  relation  to  each  other.  The  above  mentioned  characteris- tics  have  been  indicated  by  above  marks  on  the  photo  enlargmcnts in  Annexures  'B'  and  ' C.
From  the  study  of  the  above  distinctive  features  in  the  non-star  voting  mark his  opinion  is  as  follows:—
(a)  That  the  non->-ipi  votine  mark  on  all  these  ballot  papers  have  been
made  by  the  same  rubber  stamp.
(b)  Th;>t  wherever  the  star  voting  mark  on  any  of  these  ballot  papers  is clear  it  is  evident  that  the  rubber  stamp  used  for  making  the  non- star  voting  mark  was  not  the  same  as  that  used  for  making  the  star voting  mark.

Cl)  The  star  voting  mark  and  the  non-star  voting  marks  were  not  made at  the  same  time,
(2)  The  star  voting  marks  were  made  first  i.e.,  at  the  time  of  voting and  the  non-star  voting  mark  were  not  made  at  that  time.  That is,  at  the  time  of  voting  immediately  after  making  the  star  voting mark,  but  at  some  time  subsequently.
(3)  On  none  of  these  ballot  papers  was  the  star  voting  mark  and  the  non-
star  voting  mark  were  made  by  the  same  person,
His  reasons  for  the  opinion  are:—
(1)  The  (simultaneous  occurrence  of  all  the  distinctive  characteristics  des- cribed  above  in  all  the  non-star  voting  mark  on  the  ballot  papers listed  in  Annexure  'C  indicates  that  they  were  all  made  by  the  one and  the  same  rubber  stamp,  lit  is  impossible  that  two  rubber  stamps will  both  have  all  these  identical  characteristics.
(2)  It  is  impossible  that  the  same  identical  rubber  stamp  could  have  been u<^d  at  more  than  one  polling  station  of  Gonda  Parliamentary  con- stituency.
(3)  It  follows  that  th°  non-star  voting  mark  on  these  ballot  papers  were not  made  at  the  time  of  voting  at  all  or  by  the  same  person  who made  the  star  voting  mark.
 
148.  I  have  examined  the  enlarged  photographs  of  these  ballot  papers  and  I accept  his  opinion  in  respect  of  them.  While  examining  each  and  every  ballot paper  I  found  it  difficult  to  mark  the  abovementioned  characteristics  with  the

840  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [f*ART  II—
naked,  eye.  It  can,  however,  be  safely  accepted  tfTat  in  the  ballot  papers  bearing multiple  voting  marks  there  could  be  no  characteristic  difference  in  the  impres- sions,  if  the  voting  marks  were  made  simultaneously  with  the  same  seaL  It  i£ obvious  thai  the  same  rubber  stamp  would  not  have  been  used  simultaneously  in different  poillinR  stations.
I  accept  C.  T.  Sarwate  (P.W.  l l ) 's  opinion  that  the  non-star  voting;  marks  were made  on  ballot  papers  of  different  polling  stations  bv  the  same  rubber  stamp  on some  subsequent  date  after  the  polling.
Respondent  No.  1  led  evidence  of  Sharif  Ahmad  (R.  W.  18)  who  is  a  rubber stamp  maker  to  show  that  How  can  be  made  up  in  rubber  stamp  seals  in  the process  of  waking  them.
This  is  neither  here  nor  there.  If  a  rubber  stamp  is  used  for  impressing  one voting  mark,  then  the  second  voting  mark  which  is  impressed  by  the  same  seal must  also  show  the  identical  flaw.  This  is  not  the  case  in  respect  of  the  ballot papers  examined  by  C.  T.  Sarwatu  (P.W.  11)  mentioned  in  Annexure  'C  of Ex.  P.  113.
149.  Respondent  No.  1  examined.  Russel  A.  Gragery  (R,  W.  22).  He  has  not agreed  with  the  opinion  of  C.  T.  Sarwate  (P.W.  11),  but  no  weight  can  be  attached to  his  statement  because  he  has  neither  examined  the  original  ballot  papers  nor has  be  formed  any  definite  opinion  of  his  own.
Regarding  the  characteristic  breaks  in  the  non-star  voting  marks  in  ballot papers  in  Annexure  'C  of  C.  T.  Sarwate  (P.  W.  l l ) 's  report,  the  witness  Russel A.  Gragery  (R.  W.  22)  admits  in  paragraphs  14  and  15  of  his  deposition  that  the said  voting  marks  are  not  seen  in  the  corresponding  Star  cage  marks.  He  has sought  to  volunteer  that  this  may  be  due  to  heavy  Inking,  but  an  examination  of the  photographs  and  the  original  ballot  papers  show  that  such  a  statement  is without  foundation.
150.  Respondent  No.  1  filed  specimen  seal  marks  Ex.  R.  14/1  to  Ex.  R.  14/21 to  show  that  V.  B.  Bhadkamkar  (P.  W.  2)'s  opinion  about  tampering  by  judging from  the  faintness  of  the  voting  marks  was  without  foundation.  (Vide  para  51 of  V.  B.  Bhadkamkar  P.  W.  2's  deposition).
In  para  208  of  his  deposition,  V.  B.  Bhadkamkar  (P.  W.  2)  has  stated  about the  different  shades  of  ink  in  the  Ex.  R.  14/1  to  Ex.  R.  14/21.
The  above  exhibits  are  the  result  of  an  experiment  made  in  the  office  of  the Advocate  General  in  th..1  presence  of  Brij  Behari  Sahal  (R.  W.  21),  who  is  the Principal  of  Kulbhashkar  Degree  College,  Allahabad.  These  impressions  in  Ex. R.  14/1  to  Ex.  R.  14/21  were  made  in  his  presence  with  the  rubber  stamp  seal, which  to  his  best  knowledge  was  provided  by  Rama  Nath  Misra  (R.  W.  1).  For making  evfuy  two  impressions  the  seal  was  Inked  only  once  for  making  marks on  each  sheet  of  paper  (ride  para  2  of  his  deposition).
In  his  cross-examination  the  following  question  was  put  to  him:—-
"Qj'est'/o?):—Can  you  give  any  reason  why  you  at  your  own  accord  decided  to put  two  marks  and  not  either  less  or  more  than  two  marks  on  each  of these  papers?
His  answer  was  as  given  below: —
"It  was  suggested  to  me  by  Pt.  Kanhaiya  Lai  Misra  and  a  few  other gentlemen  sitting  with  him  in  his  office  where  I  had  been  taken  the day  next  to  Mr.  Veragi's  talk  with  me  that  two  marks  should  be made  on  several  pieces  of  paper.  It  was  also  suggested  that  there should  be  no  re-inking  in  between  the  two  markings  on  the  same piece  of  paper.  I  recognise  Pt.  Kanhaiya  Lai  Misra,  Sri  R.  N.  Misra and  others  present  I  do  not  recognise."
 
In  his  cross-examination  he  also  admits  that  more  than  one  person  present at  the  office  of  the  Advocate  General  put  the  marks-  on  these  papers  Ex.  R.  14/1

SKC.  3(ii)]  THE GAZETTE  OF  IN11IA  EXTRAORDINARY  8 4r
to  Ex.  R.  14/21.  He  could  not  say  how  many  of  them  did  the  marking  but  He said  "Sri  R.  N.  Misra  (R.  W.  1)  may  be  one  of  them".
It  is  clear  that  there  ha.s  been  a  deliberation  in  the  minds  of  those  persons who  were  affixing  those  markg  as  to  the  manner  in  which  they  should  be  done. Under  the  circumstances  the  result  of  the  experiment  posed  in  the  Ex.  R.  14/1 to  Ex.  R.  14/21  has  no  value,
151.  During  the  recounting  there  was  sufficient  justification  for  V.  B.  Bhad- kamkar  (P.  W.  2)  to  form  an  opinion  from  the  nature  of  the  marking  appearing on  the  ballot  papers  that  they  were  tampered.
C.  T.  Sarwate  (P.  W.  11)  has  given  another  cogent  reason  for  his  opinion  that the  ballot  papers  were  tampered.  The  reasons  are  given  in  Ex.  P.  113  as follows: —
"In  some  cases  the  non-star  voting  marks  show  similar  shade  and  deposit of ink  on  the  lines  which  is  consistent  with  the  Star  voting  mark  and in  such  cases  it  would  ordinarily  be  difficult  to  determine  the  order of  the  impressions,  taking  into  consideration  the  shade  and  the deposit  of  ink,  but  in  the  majority  of  such  cases,  while  the  star voting  mark  has  caused  a  'reflected'  impression  on  folding,  the  non- star  voting  marks  show  no  such  impression.  If  the  two  impressions were  made  at  the  same  time  showing  almost  similar  shade  and deposit  of  ink,  It  is  improbable  that,  while,  one  gives  a  reflected impression  after  folding,  the  other  does  not.  They  only  possible explanation  for  this  is  that  the  Star  voting  mark  was  on  the  ballot- paper  before  it  was  folded  and  that  the  non-star  voting  mark  has been  impressed  subsequently."
I  accept  the  reasons  given  above  for  determining  whether  the  ballot  papers were  tampered  or  not,
I  have  examined  all  the  ballot  papers  and  in  large  number  of  them  I  have found  the  reflected  impression  corresponding  to  the  star  voting  mark  but  no  such reflected  impression  corresponding  to  the  non-star  voting  mark,  although  several non-star  voting  marks  show  similar  shade  and  doposit  of  ink  as  the  star  voting mark  (see  Schedule  'B'  below).
SCHEDULE  'B'
P.S.No.  Break in
Non-star  mark  very  faint the arm
Reflertcii  impression fowid  onl\  i'i star  marl:
Same shade
3
T  2
5
4
GONDA
EAST
to
E \\  P. 4^ 14, 25, 46,  47,
24
Ex. P. 4.1'26  ro 45, 48, 49., 51 54,  56, 59, 61 to 63 &  66.
V3.  ^S, ";7, 5~8, 60,fi[, 65,  67,  68, fig.
Ex.P.  46'1,7,  T I , 3 4 & 3 9. Kx-  P  46/ 2, to 6, 8 tO TO,  T2
; to
33,  35, to 3S, 40 to<5R.
2"
20 53,
82
to 91 130
48
33
6
26

;g42  THE  GAZETTE  OV  INDIA  EXTRAORDINARY  [PART  II—
I
2  3  4
5
34
Ex.  P.52/1,5,7,8,13,14, 19. -5)  30, 33, 34,  39) 40,  41, 44i  47, 48, 49, 54 to 58, 62, 66, f>7,  71 1:075,77,85,86,91,93, 96,  97  to  99,  loi  to 104, 107, III & 112.
Ex.  P.  52/2  10 4,  6,  9  to  TI,  13, T5 to  18, 20 to 24, 26 to 29, 31, 32, 35 to 38, 42, 43, 45, 46, 50 io  53,  59  to  61,  63  to  fi5i 68 to 70, 76, 78 lo 84, 87 to 90 92., 94, 95, 100, 105, 106,  108 to 110.
Ex.P. 53/1,4,6  tog-
Ex. P. 53/2,3 & 5-
36
Ex.  P. 54/1 lo 3,5 to 30.
Ex. P. 54/4
37
41
Ex.  P.  55/5, 6,  9,  10,  12, to  14, 16, 17,  20,  29, 31, 33,  34, 36, 37,  45,  46,  48  Lo 54,  565  57,
59 to  63.
Ex. P. 55/4, iH &  23  Ex. P. 55/1 to 3, 7, 8,  i i. 15,19, 21,22, 24 to 28, 30,  32,35,  38  to  44,  47, 55&  53.
Ex.  P.  56/1  to  12.
42
Ex.  P.  57/1, 3 to  6,  8,  10 to 12,
Ex. P. 57/2,  7, 9,  13, 17,
43
I4to  Ib, 18 to 22.
22, 23 & 24.
Ex. P. 58/2104,  6, 8 to  12 & 14-
Ex.P.  58/1*, S J7  &I3*
44
Ex.  P.  59/1  to 22.
45
Ex. P.  60/24  ..  Ex. P.  60/9,  I5i  4o, 4i>
46
51 and 53
Ex. P.  60/1  to  8, 10  to  14, 16 to 23, 25 to 39, 42 to  50, 52, 54 to 67.
Ex. P.  61/19,  2<5,  36
47
&'4i
Ex.  P.  6I/I  to  18, 20 to 25, 27 to 35, 37 to 40, 42 to 44.
48 Ex. P. 62/27  • -  Ex. P.  62/18,  37,  41, 47,  51, 64, 66 & 69.
Ex.  P.  62/1 to  17,  19 to  26, 28 to  36, 38 to  42, 44 to 46, 48 to jo,  52 to 63, 65, 67, 68, 70 to 76.
49
Ex.  P.  63/1,  12,  13, 18, 20,  23  to  25 &
Ex. P.  63/2  to  11,  14  to  17, 19, 21, 22, 26 to 36, 38 tO 5I.
37-
50
Ex. P. 64/1 to 21, 25, 27 to 39, 4l,43'48,  TO 53,  57, 6'  10 62,65  to  72,
..  '"  Ex. P. 64/22*, 23, 24, 26, 40,42,441047,  54, SS,  "?6*,  58*,  59*J 63, 64, 73*, 74 to 76.
Rx. P. 65/1,  2,4,  6 to  10,  12
Ex. P. 65/3, 5 & II*.
52
to  15.
Ex. P. 66/1, 2, 5 10  10.
Ex. P.  66/3 & 4
53
Ex. P. 67/1 to 2B, 30 to 32, 34
Ex. P. 67/29, 33 & 41
56
to  40, 42  to 45-
fix. P. 6S/30.  Ex. P. 68/6, T2,  14, 19,
57
27 ,29*, 47 & 53-
Ex. P. 68/1 to 5, 7 to i r,  13, 15 to  IS, 20 to 26, 28, 11 to 46, 48  to  52  & 54.
Ex.  P.  69/1 to 5.
64
Ex. P. 70/1 to  11, 13 10 32.
Ex. P. 70/12.  Ex. P.  70/33 & 34
65
Ex. P.  71/1*, 5, 6, 8, 14,
66
15, 17,21,27,33.
Ex. P.  71/2 to 4, 7, 9 to  13, i6, 18 10 20, 22 to 26,  281032 & 34-
Ex. P. 72/l  to 6, 9,  10 & T2
Ex.  P.  72/7. B& 11
 
68

SEC.  3(li)]  THE  GAZETTE  OF INDIA  EXTRAORDINARY  843
I
2 3 4
5
69
Ex.P.73/3, 5, I I3 12,19, 21,22,25,26,27,34, 5i,  55>58365, 66, 67, 75* & 79-
Ex.P.73/1,2, 4, 6 to 10,13
1018,20,23,24,281033,
35 to 50, 52 to 54, 56, 57,
59 to 64, 68 to 74, 76 to 78,
80 to  85.
70
Ex,P.74/i to 6, 8 to 25.
Ex.P.74/7
73
Ex.P.75/1,3,  6109,12,13,
Ex.P.75/2,4',5.10.11
&  14.
15 to  18.
74
Ex.P.76/3, 9, io, 11,12, 19,33,  37,42&49-
Ex.P.76/1,2,4 to 8,13 to 18, 20 to 32,34 to 36, 38 to 41, 43  to 48, 50 to  58.
75 78
Ex.P.78/3,5,  1 3 ^ 2 3,
27  &  29.
79
Ex.P.79/5, 8, 21, 24, 28, 30,41,52,53156=60, 65, 66, 70 & 71.
81
Ex.P.80/17
83
84
Ex.P.  82/1*, 3*, 10 &
Ex.P.77/1 to  22. Ex.P.78/1,2, 4 ,6 to 12,14 to 22, 24 to 26, 28 & 30. Ex.P.79/1 to 4, 6, 7, 9 to 20, 22,23,25 1027,29, BI to 40,42 to 51, 54, 55, 37 to,, 59,61 to 64, 67 1069. Ex.P.80/1 to 16,18 to 23. Ex.P.  8 I /I to 12. Ex.P.82/2, 4 to 9, 11 & 13.
12.
85 88
Ex.P.84/2, 4, 5, 6, 9, W, 14,15,19,20,22,23, 25,27,341038,49, 54,58,62,641071.
ExJP.83/1 to 16. Ex.P.84/1,3, 7, 8,10, 11,13, 16 to 18, zi,  24, 26, 28 to 33, 39 to 48, 50 to 53, 551057, 59 to 61 & 63.
GONDA WEST
14
Ex.P.85/9 & IO
25
33
41
Ex.P. 85/1 to 8 & 11 to 20. Ex.P.86/1 to  23. Ex.P.87/1 to 3. EX.P.89/1 to 3, 5 to 18,30,
Ex.P.89/4,19 & 21
22  to  25.
42
Ex,P.9o/6.
43
.  45 53 54
Ex.P.93/2
57
60
66
(58
Ex.P.90/1 to 5,7 to 24. Ex.P.91/1  to  10 Ex.P.92/1  to  10. Ex.P.93/1 to 4. ,.. Ex.P.94/1 to 8. Ex.P.95/1 Ex.P.96/1  to  6. Ex.P.97/1 &  2. Ex.P.98/1 to 4.
In  the Exhibits  marked  Asterisk  the  shade  of  the ink at  the voting  mark  in the  n-on-sttir  cage  is  almost  of  the  same  depth  as  the  voting  mark  in  the  star cage,  but it has no reflected  impression  like  that  of the voting  marks  in the  star cage.
152.  Issue  No.  2:—
The  petitioner  in  para  40 of  the petition  has stated  that  during  the night  of ?8th  February  1962 after  It  became  clear  that  Respondent  No. 1 was losing  the election,  he and the Returning  Officer  (C. M. Nigam)  were  continuously  In  touch with  each  other  and probably  also  with  the  State  Head  quarters  in  Lucknow.

844  THE  CAZETTE  OF  INDIA  EXTRAORDINARY  [PART  I I-
Katyani  Dutt  (P.  W.  10)  has  deposed  that  he  had  seen  Respondent  No.  1 going  to  the  residence  of  District  Magistrate  after  leaving  the  Shamiana,  where votes  of  Mankapur  segment  were  being  counted  on  28th  February,  1962.
The  petitioner  has  also  slated  in  his  petition  that  he  learnt  that  on  March  8 and  9,  1&62.  there  had  occurred  some  movement  of  bags  containing  packets  of the  counted  ballot  papers.
He  has  further  stated  that  on  Inspection  on  the  night  of  9th  March,  1962,  ho found  that  bags  containing  packets  of1  used  and  counted  ballot,  papers  were removed  from  the  Armoury  Strong  Room  to  the  Treasury  Double  Lock  and  that a  large  number  of  such  bags  had  gone  out  of  the  Treasury  on  the  afternoon  of 8th  March,  1962,  although  it  was  a  public  holiday  and  that  large  number  of  such packets  had  also  come  Into  the  Treasury  on  the  morning  of  9th  March,  1962  and that  on  none  of  these  occasions  the  petitioner  nor  his  Election  Agent  was  noti- fied  to  be  present  (vide  para  55  of  the  petition).
In  para  58  of  his  petition,  he  has  stated  about  the  special  features  that  came to  the  notice  at  the  time  when  the  recounting  of  Gonda  East  segment  st&rted after  lunch  on  the  10th  March  19fi2.  He  further  mentions  the  reaction  In  the mind  of  P.  S.  Subramanian,  Deputy  Election  Commissioner  (P.  W.  3)  who  was present  at  the  time  of  recounting.
Further,  In  para  62,  he  states  that  by  the  evening  of  10th  March,  1962,  it  was quite  obvious  to  the  petitioner  and  it  must  have  been  quite  obvious  also  to  the Deputy  Election  Commissioner  as  wel)  as  to  the  Returning  Officer  that  somo  time after  the  first  count  and  before  the  recount  the  bags  and  packets  containing  the counted  Parliamentary  ballot  papers  relating  to  that  segment  had  been  got  at and  the  ballot  -papers  had  been  tampered  with,
In  para  68  of  the  petition,  it  has  been  stated  that  as  in  the  case  of  Gonda  East many  of  the  ballot  papers  relating  to  Gonda  West  Assembly  segment  (excluding those  relating  to  the  17  polling  stations  referred  to  in  para  66)  had  also  been tampered  with.
In  para  81  of  his  petition,  submissions  for  moving  the  Election  Petition  have been  made  by  him.  From  tho  statements  mentioned  above,  It  is  clear  that  the allegations  made  about  tampering  and  about  the  particulars  are  as  categoric  and as  detailed  as  can  possibly  be  made  in  the  circumstances  of  the  case.  It  was not  possible  for  the  petitioner  to  state  when  and  in  which  particular  place  the persons  responsible  actually  did  the  tampering.
153.  Tampering  of  ballot  papers  does  not  come  within  the  purview  of  corrupt practices  defined  in  section  123  of  the  Representation  of  Peoples  Act.  As  such the  allegations  of  tampering  would  not  come  within  the  purview  of  section 83(1)  (b)  of  the  Representation  of  Peoples  Act.  The  petition  would  certainly fall  under  section  83(1)  (a)  ibid  which  lays  down  that  the  petition  ihall  contain a  conci""  statement  of  the  material  facts  on  which  the  petitioner  relies.
Order  6  Rule  2  of  the  Civil  Procedure  Code  also  lays  down:—
"Every  pleading  shall  contain,  and  contain  only,  a  statement  in  a  concise form  of  the  material  facts  on  which  the  party  pleading  relies  for hlg  claim  or  defence,  as  the  case  may  be,  but  not  the  evidence  by which  they  are  to  be  proved".
164,  The  petitioner  in  his  petition  has  given  a  detailed  statement  of  the  mate- rial  facts  on  which  he  relies  and  also  stated  specifically  that  the  result  of  the election  has  been  materially  affected  bv  improper  reiectlon  of  over  17R0  vot^ cast  for  him  in  Gonda  East  and  over  130 valid  votes  cast  in  his  favour  in  Gonda West  Assembly  Segment  and  by  improper  acceptance  of  over  150  vote=?  in  Gonda East  Segment  and  some  50 votes  in  Gonda  West  Segment  in  favour  of  Respondent No.  1.
Writ  Petition  No.  271  fi  of  1962  'dated  1st  April,  1963  was  filed  by  the  Res- pondent  No.  1  in  tho  High  Court  of  Judicature  at  Allahabad.  The  judgment therein  shows  that  this  point  was  argued  before  their  Lordships  and  it  was  held by  the  Honble  Mathur  J.  as  follows: —
"In  the  Election  Petition  it  was  not  onlv  alleged  that  there  vas  tampering of  ballot  papers  after  the  counting  of  votes  and  before  recounting, but  the  nature  of.  tampering  was  also  Indicated  in  ipara  58  of  the Election  Petition".

Sw.  ft(U)}  Tttft  GAZETTE  ot  INbiA  tXTfcAftfcfilNA  645
There  is  thus  no  substance  in  the  objection  raised  on  bdialf  of  Respondent No.  1 that  the  allegations  of  tampering  were  vague  and  suffer  from  want  of necessary  particular  or  that  they  were  merely  Jn  the  nature  of  inference.
155.  Issue  No.  4: —
I  has  been  held  in  Issue  No.  2  that  the  votes  of  Gonda  East  and  Gonda  West Segments  which  were  counted  as  valid  for  the  petitioner  in  the  first  count  (there being  only  one  voting  mark  in  the  cage  of  Star  in  those  ballot  papers)  and  which were  rejected  by  the  Returning  Officer  at  the  recount,  were  tampered  with  and their  rejection  was  therefore,  improper.  The  valid  votes  in  favour  of  the  peti- tioner  in  the  first  count  which  were  improperly  rejected  by  the  Returning Officer  at  the  recount  as  a  result  of  tampering  gre  given  below:—
Polling Station No.
Ex. Nos. p.
Total
GONDA EAST
m
*
24  . .. 27  . 28  . 32  . 33  • 6  . 18  . 34  • 36  . 37  . 41  . 42  . 43  . 44  • 45  . 46  . 47  •
4  .49  .
SO  ,
,
t
4
4
t
68 8a 136 169 8 33 1 12 9 30 63 12 "4 14 22 67 44 73 51 76 15 10 45 54 3 34 34 12 85 25 18 58 22 30 71 23 12 13 16 71 52  • 53  . 56  . 57  . 64  • 65  . 66  . 68  . 69  . 70  . 73 74  - 75  . 78  . 79  • 81  . 83  . 84  • 85  . 88  . •
.  45/24—69 ,  46/1—68 .  47/1—82 .  48/1—136 .  49/1—169 .  50/1—8 .  51/1—33 .  52/1—112 .  53/1—9 .  54/1—30 .  55/1—63 .  56/1—12 .  57/1—24 .  58/1—14 .  59/1—22 .  60/1—67 .  61/1—44 .  62/1—73 .  63/1—51 .  64/1—76 .  65/1—15 .  66/1—10  ' .  67/1—45 .  68/1—54 .  69/1—5 .  70/1—34 .  7i/i—34 .  72/1—12 .  73/1—85 .  74/1—25 .  75/1—18 .  76/1—58 .  77/1—22 .  78/1—30 .  79/1—7i .  80/1—23 .  81/1—12 .  82/1—13 .  83/1—16 .  84/1—71
•
Total of Gonda East
1792
GONDA  WEST        14  •                             .  85/1—20                  20
                   25  .                             .  86/1—23                  23
                   33  .                             •  87/1—3                    3
                   41  •                        m    .  89/1—25                  35
                   42  .                        r    .  90/1—24                  24
                   43  .                        a    . 91/1—10                   10
                   45  -                        m    . 92/1—8                     8
                   53  .                        •    .  93/1—4                    4


&46  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  I I-
t
2
3
4
54  • 57  . 60  . 66  . 68  .
.  94/1—8
.  95/1—2
.  96/1-5
.  97/i—a
.  98/1—4
8 2 5 2 4
Total of Gonda West
138
Total of Gonda East &
Gonda  West
1930
The  above  number  of  votes  should  be  counted  as  valid  votes  In  favour  of  the petitioner,  except  two  ballot  papers  Ex.  P.  4712 and)  Ex.  P.  52|37,  as  these  ballot papers do not  bear  voting  marks  in the  Star  cage.
Thus,  the  total  number  of  votes  polled  by  the  petitioner  would  be  80,439  plus
1,928  (total  82,367).
156,  Issue  No. 5:—
It  has  also  been  held  In  Issue  No.  2 that  the  ballot  papers  of  Gonda  East  and Gonda  West  Segments  which  were  rejected  by  the  Assistant  Returning  Officer  as "R.N.M."  and  "R.M.B.A."  In  the  first  count  but  were  validated  by  the  Returning Officer  at  the  recount  in  favour  of  Respondent  No.  1,  have  also  been  tampered with  by  making  a  voting  manic  in  the  cage  of  the  "BU1JJ3"  in  those  ballot  papers after  the  first  count  and  before  the  recount.
I  hold  that  the  acceptance  by  the  Returning  Officer  of  these  ballot  papers  as valid  in  favour  of  Respondent  No.  1  at  the  recount  waa  improper.  The  following ore  the  ballot  papers  of  the  above  category:—
Stamp at  first Total
Ex. Nos. P.
Polling Stn. No.
count
2
.  45/1—2
GONDA EAST  24  . ..
21
45/3—23
R.M.B.A. R.N.M. R.M.B.A.
27  . ..
28  . ..
.  46/69  • 46/70—78 .  47/83—87 47/88—100
1 9 5 13 1
•  48/137 .  52/113  •
.  R.N.M. R.N.M. R.M.B.A. R.N.M. R.M.B.A.
32 34
52/114—131
.  R.N.M.
42  .  •  •  •
.  56/13—16
56/17—22
1 8 4 6
1
•  57/25
57/26—29
4
1
46  . ..
Al
.  60/68
•  6l/45
*T f
1 6 5 48
10
52 53  . ..
Jit
R.M.B.A. R.N.M. R.N.M. R.M.B.A. R.N.M. R.M.B.A. R.N.M. R.M.B.A. R.N.M. R.N.M. R.N.M. R.M.B.A.
61/46—5I .  62/74—78 62/79—88 .  65/16—I9 .  66/11—13 .  67/46^8
56
67/49—55
64
.  69 6 69/7
.  71/35
66  . ..
68  . ..
4 3 3 7 1 1 1 1 3 4
2
69  . ..
7i/3
.  R.N.M. .  R.M.B.A, .  R.N.M. R.N.M. R.M.B.A. R.M.B.A. R.N.M. R.M.B.A. R.N.M.

 
4

SEC  i(ii)]  TM fcAzfef 1E  ttf  INBIA  Sxf RAttRffiNAiV  §47
Sin.  No.  Lx. No..  P.
Pollbg
Total
Stamp  at  first count
1 70
73
3 1 6 16 9 74 7? 88
1 16
74/26 74/27—31 75/19 75/20—25 76/59—74 78/31—39 84/72  . 84/73—88
R.M.B.A. R.N.M. R.M.B.A. R.M.N. R.N.M. R.M.B.A. R.M.B.A. R.N.M.
Total of Gonda  East
188
2 GONDAWEST  14 33
I2 39
4i
2 3 8 7
2 42 45 54 57
85/21—22 87/4—10 87/11—18 88/1—2  . 88/3—4  . 89/26—28 89/29—36 90/25—31 92/9—10 94/9—" 95/3—6  .
R.N.M. R.N.M. R.M.B.A. R.N.M. R.M.B.A. R.M.B.A. R.N.M. R.N.M. R.N.M. R.N.M. R.N.M.
3 4
48
Total of Gonda  West Total  of Gonda  East and  Gonda  Weit
•
The  total  number  of  votes  of  the  above  category  are  236.  They  must  be deducted  from  the  total  number  of  votes  polled  in  favour  of  Respondent  No,  1. The  total  poll  in  favour  of  Respondent  No.  1  would,  therefore  be  80,937  minus 236=80,701.
The  effect  of  the  above  counting  is  that  the  total  number  of  Votes  in  favoui  of the  petitioner  exceeds  the  number  of  votes  polled  by  Respondent  No.  1  as  also polled  by  the  other  remaining  candidates.
The  petitioner  is,  therefore,  declared  elected  in  the  Election  of  34  Gonda  Par-
liamentary  Constituency.
157.  Issue  No.  6: —
This  matter  has  been  dealt  in  Issue  Nb.  2.
I  (have 'found  that  the  Returning  Officer  designedly  and  illegally  refrained  from completing  the  counting  of  votes  on  the  night  of  February  28,1962  and  early  hours of  1st  March,  1962  in  violation  of  Rule  60 of  the  Conduct  of  Election  Rules, 1961.
Rule  60  lays  dawn: —
"Counting  to  be  continuous—The  Returning  Officer  shall,  as  far  as> practic- able,  proceed  continuously  with  "the  counting  and  shall,  during  any intervals  when  the  counting  has  to  be  suspended,  keep  the  ballot papers,  packets  and  all  other  papers  relating  to  the  election  sealed with  his  own  seal  and  the  seals'  of  such  candidates  or  election  agents as  may  desire  to  affix  their  seals  and  talce  sufficient  precaution  for their  safe  custody  during  such  intervals".
I  hold  that  the  Returning  Officer  designedly  and  illegally  retrained  from  com- pleting  the  counting  of  votes  on  the  night  of  February  28,  19162 and  early  hours  of 1st  March,  1962  in  violation  of  Rule  60.
158.  Issue  No.  7 (a):—
It  has  been  found  that  1930 Ballot  papers  of  Gonda  East  and  Gonda  West  Seg- ments  were  improperly  rejected  by  the  Returning  Officer  at  the  recount  19*28 votes  should  be  counted  as  valid  in  favour  of  Petitioner.  (Finding  on  Issue  No.  4 read  with  Finding  on  Issue  No.  2).

848  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [!*ART  I t-
It  has also  been  found  that  236  voteg  were  improperly  accepted  by  the  Return- ing  Officer  at  the  recount  in  favour  oZ Respondent  No.  1.  These  have  been deducted  from  the  total  number  of  votes  polled  by  Respondent  No.  1  (Finding  on Issue  No.  5  read  with  finding  on  Issue  No.  2).
C'b), As  a  result  the  number  of  votes  polled  by  each  of  the  contesting  candidates In  34 Gowda  Parliamentary  Constituency  will  bo  as  below.—
Names  of  Candidates
Valid  votes  polled
1.
2.
3,
4.
Gir  Hem  Raj Gupta  Ram  Ratan Dandekar  Narayan Sinfaa  M.  K.
..  27,429 ..  80,701 ..  82,307 ..  7.G74
The  above  table  would  show  that  the  petitioner  in  fact  received  a  majority  of valid  votes  at  the  Election  of  34  Goruda  Parliamentary  Constituency,  and  I  hold accordingly,
,  159.  Issv*  No.  8: —
I
Respondent  No.  1 has  alleged  in  para  91  of  his  written  statement  as  follows:— "lit  is  also  noteworthy  that  at  the  time  of  the  original  counting,- the  peti- tioner  had,  in  fact,  18  counting  agents,  as  the  Raja  of  Mankapur  had his  own  men  nominated  Oa counting  agents  of  the  other  two  candi- dates".
This  relates  to  the  first  counting  held  on  27th  and  28th  February,  1962. Respondent  No.  1  has  adduced  no  evidence  in  support  of  their  allegations. I,  therefore,  hold  that  the  counting  agents  of  Respondents  2  and  3  were  not
nominated  by  Raja  Sahib  of  Mankapur.  So,  its  effect  does  not  arise  here.
160.  Issue  No.  9: —
Evidence  of  V. B, Bhadkamkar  (P.W,  2)  (Para  50)  shows that  when  the  abnor- mal  'features  indicating  tampering  were  detected  in  many  of  the  ballot  papera When  the  recounting  of  Gondia  East  Assembly  segment  was  started,  there  was an  uproar  in  the  counting  (hall  and  after  sometime  the  Deputy  Election  Commis- sioner,  P.  S.  Subramanian  (P.W,  3)  directed  that  an  account  of  such  ballot  papers be  maintained  in  a  special  form  (vide  Ex.  P.  26  and  Ex.  P,  27).
V.  B  Bhadkamkar  (P.W.  2)  in  his  cross-examination  has  stated  that  he  did  not make  any  formal  objection  to  the  Returning  Officer  then  and  there  about  rejec- tion  or  acceptance  of  the  votes,  as  he  was  shocked,
P  S.  Subramanian  (P.W.  3)i has  also deposed  that  after  looking  to  the  abnormal features  in  the  ballot  papers  in  question,  he  found  that  it  was  a  case  of  tamper- ing.  He  immediately  asked  the  Returning  Officer  to  keep  an  account  otf  the numbers  of  ballot  papers  of  both 
The  Petitioner  Narayan  Dandekar  (P.W.  1)  has  specifically  raised  objection  in Ex,  P,  28  and  Ex.  P.  30  {vide  his  deposition  paras  37  and,  41).
There  is  abundant  material  to  show  that  objections  were  raised  to  the  improper rejection  and  improper  acceptance  of  the  ballot  papers  when  the  recounting  was made  by  the  Returning  Officer.
Their  Lordships  of  the  Supreme  Court  in  Velusioami  Thevar  vs.  Raja  Nainar and  others—17  E.L.R.  181  has  laid  down  as  follows: —
 
"In  determining  whether  the  nomination  of  a  candidate  was  "improperly rejected"  within  the  meaning  of  section  100(1) (c)  of  the  Representa- tion  of  the  People  Act,  1951, the  scope  otf  enquiry  before  the  Election Tribunal  is  not  limited  to  the  particular  grounds  of  disqualification which  were  raised  before  the  Returning  Officer  and  on  the  basis  of which  the  nomination  wag  rejected.  It  is  open  to  a  party  to  the election  petition  to  plead  that  the  candidate  whose  nomination  was

SEC  8(il)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  849
rejected  was>  aljso  disqualified  on  grounds  other  than  those  which were  raisodi  before  the  Returning  'Officer,  and  the  Election  Tribunal has  jurisdiction  to  enquire  into  the  new  grounds  of  disqualification; and,  ij!  the  Tribunal  fljndg  on  enquiry  that  the  candidate  was  dis- qualified  on  any  of  the  grounds  mentioned  in  section  36(2),  whether such  ground  was  raised  before  the  Returning  Officer  or  not,  it  cannot hold  that  the  nomination  was  improperly  rejected  within  the  mean- ing  of  section  100(1) (c)".
I  therefore,  hold  that  the  petitioner  is  not  stopped  from  raising  the  plea  against the  decision  of  the  Returning  Ofntoer  on  the  rejection  or  acceptance  of  the  ballot papers.
161.  Issue  No.  10: — I  have  found  that  the  Returning  Officer  designedly  and  illegally  refrained  from completing  the  countinc  of  votes  In  the  night  of  February  28,  1962  and  early  hours of  1st  March,  1962  in  violation  of  Rule  60 of  the  Conduct  ctf  Election  Rules,  1961.
I  have  also  found  that  ho  has  failed  to  keep  the  ballot  papers  in  safe  custody thereby  ignoring  the  mandatory  provisions  of  Rule  60  (Conduct  of  Election  Rules, 1961).
While  dealing  with  Issue  No.  2,  it  has  been  mentioned  that  during  the  period the  ballot  papers  were  kept  first  in  the  Armoury  Strong  Room  and  then  in  the Treasury  Double  Lock,  ths  Rules  governing  the  keeping  of  valuables  in  the  Trea- sury  wore  not  followed  as  laid  down  in  the  Treasury  Manual  and  the  Financial Hand  Book  Vol.  V  Part  I.  On  the  contrary  all  the  Rules  Which  could  ensure  the safety  of  the  ballot  papers  while  in  custody  of  the  Treasury  Officer  were  violated, Which  facilitated  the  easy  movement  of  the  bags  containing  the  ballot  papers  for taking  them  out  of  the  Armoury  Strong  Room  and  bringing  them  to  the  Treasury Double  Lock.
The  report  of  the  Nazir  dated  7-3-62  Ex.  R.  6  was  faked  to  show  an  urgency to  move  the  bags  from  the  Armoury  Strong  Room  to  which  the  Returning  Officer gave  immediate  approval,  although  the  recount  was  to  take  place  on  9-3-19*2,
The  above  movements  of  the  hags  were  designedly  engineered!  to  afford  an opportunity  for  tampering  with  the  ballot  papers.  In  the  circumstances  mentioned ebove  I  find  that  there  was  breach  of  the  duty  on  the  part  of  the  Returning  Officer which  resulted  in  tempering  and  consequently  materially  affected  the  result  of  the election.
162.  Tssue  No-  12: —
I  hold  that  the  petitioner  is  declared  elected  to  tihe  election  of  34  Gonda  Par- liamentary  Constituency  of  1962.
163.  Issve  No.  11: —
Ex.  P.  110  was  the  order  drafted  by  P.  S.  Subramanian,  Deputy  Election  Com- missioner,  (P.W.  3),  who  was  present  at  the  recounting.  The  dtraft  purports  to  be a  directive  to  the  Returning  Officer  not  to  declare  tfhe  result  of  34  Gonda  Parlia- mentary  Constituency  until  further  instructions  froim  the  Commission  and  further that  he  shall  immediately  communicate  to  it  the  result  at  the  entire  constituency.
P.  S.  Subramanian  (P.W.  3)  has  categorically  stated  that  on  a  closer  watch  he found  that  this  was  a  case  of  tampering.  He  immediately  asked  the  Returning Officer  to  make  an  account  of  number  of  ballot  papers  of  both  the  categories  For this  purpose  a  form  was  prescribed  (Ex.  P.  26  and  Ex.  P  27).  He  suggested  to the  Returning  Officer  to  call  for  an  explanation  from  the  Assistant  Returning Officer  and  when  about  30  polling  stations  of  Gonda  East  were  counted,  he  imme- diately  took  the  Returning  Officer  to  an  ad joining  room  and  had  discussions  with him.  He  went  to  his  residence.  The  Returning  Officer  himself  rang  up  the  Chief Election  Commissioner,  New  Delhi,  and1  told  him  about  the  happenings  and thereafter  he  was  informed  by  the  Returning  Officer  that  the  Chief  Election  Com- missioner  wanted  to  speak  to  him  on  the  phone.  He  then  gave  the  Chief  Election Commissioner  a  gist  of  what  had  'happened  there  and  also  told  him  that  they  were keeping  an  account  of  al]  the  ballot  papers  whir^  seemed  to  be  abnormal  and in  the  meantime  he  was  directing  the  Returning  Officer  not  to  declare  the  result.

850  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  I I-
Tlie  Chief  Election  Commissioner  approved  and  said  that  he  should  be  given  the report  when  the  counting  was  over.
He  further  says  that  he  told  the  Returning  Officer  that  he  would  sign  a  formal order  directing  him  not  to  declare  the  result,  a  draft  of  which  was  given  to  him the  previous  night.  Thig  draft  is  Ex.  P,  110.  The  Returning  Officer  did  not  give him  the  order  for  signature  but  assured  him  that  he  would  not  declare  the  result.
P.  S.  Subramanten  (P.W.  3)  asserts  that  he  dictated  the  drafts  to  the  Steno- grapher  of  the  Collector  in  his  presence.  One  was  in  respect  of  a  report  from  the Returning  Officer  giving  the  gist  and  the  other  a  formal  direction  to  the  Return- ing  Officer  ordering  him  not  to  declare  the  result  for  which  he  had  taken  the approval  of  the  Chief  Election  Commissioner.  Both  these  typed  drafts  (Ex,  P.  109 and  Ex.  P.  110)  were  placed  before  him  on  which  he  made  some  changes  and  gave the  Returning  Officer  for  retyping.  He  did  not  accompany  the  Returning  Officer after  lunch  to  the  place  of  recounting  as  he  assured  him  that  he  would  not  declare the  result.  At  about  3-30  or  4  P.M.  on  11-3-62  the  petitioner  saw  him  and  inform- ed him  that  the  result  had  been  declared.  But  before  this,  he  had  already  received Information  from  the  Returning  Officer  himself  that  the  result  had  been  declared.
P.  S.  Subramanian  (P.W. 3)  says  that  he  was  upset  because  his  orders  were not  carried  out  by  the  Returning  Officer  who  hadl  actually  cheated  him.
The  evidence  of  a  responsible  officer  of  the  status  of  Deputy  Election  Com- missioner  stands  unrebutted.  The  only  person  who  could  rebut  was  Returning Officer.  He  has  not  been  examined  by  Respondent  No.  1.
I,  therefore,  hold  that  the  Deputy  Election  Commissioner,  P.  S.  Subramanian Issued  a  direction  to  the  Returning  Officer  to  withhold  the  declaration  of  the result  and  further  that  the  Returning  Officer  did  receive  the  direction  but  acted in  violation  of  the  said  directive  by  declaring  the  result.
"  164.  It  was  argued  on  behalf  of  Respondent  No.  1 that  It  wag  not  within  the competence  of  the  Election  Commission  to  issue  such  a  directive.
It  was  argued  by  the  Advocate  General  that  Article  324  of  the  Constitution of  India  does  not  lay  down  any  procedure  about  how  election  shall  be  conducted and  that  the  power  of  Election  Commission  is  only  of  superintendence.  Further that  as  the  law  stands,  the  Returning  Officer  was  bound  to  declare  the  result  after the  recount  and  that  the  Election  Commission  has  no  power  to  set  aside  any order  of  the  Returning  Officer  inasmuch  as  Article  324  cannot  be  interpreted, to give  a  power  or  direction  against  law  and  the  Representation  of  People  Act  being complete  by  itself,  it  is  not  open  to  any  Court  or  Tribunal  to  search  out  a  remedy if  It  is  not  there.
Reliance  was  pieced  on  a  decision  in  G.  F.  F.  Foulkes  avd  others  vs.  A.  S. Suppan  Chettiar  and  another—A.LR.  1951  Madras  299  in  which  it  was  held  as follows:—
'
"It  is  one  thing  to  introduce  terms  into  an  Act  of  Legislature  in  order  to give  effect  to  it"  clear  intention  by  remedying  more  defects  of language.  It  is  quite  another  thing  to  imply  a  provision  which  is not  in  the  statute  in  order  to  remedy  an  omission,  without  any ground  for  thinking  that  you  are  carrying  out  what  the  Legislature intended.  To  insert  such  a  provision  would  be  simply  making,  not interpreting  the  law.  It  is  not  the  function  of  the  Courts  to  repair the  blunders  that  are  to  be  found  in  legislation,  They  must  be corrected  by  the  legislature".
163  The  learned  counsel  for  the  petitioner  contended  that  under  Article  324 of  the'  Constitution  of  India,  the  Election  Commission  has  not  merely  power  of superintendence  but  also  has  the  nower  of  direction  and  control  of  the  conduct  ox all  the  elections  vested  in  the  Election  Commission  and,  therefore,  the  Deputy Election  Commissioner  under  Article  324  of  the  Constitution  eouM  isrue  direction to  the  Returning  Officer  to  withhold  the  declaration  of  the  result.
166  It  is  well  settled  that  the  word  "Election"  connotes  the  entire  process  of Election  fulminating  in  a  candidate  being  declared  elected  [See  13  E.L.R.  11 ? (S.C),  6  E.L.R.  186,  9  E.L.R.  183  1952  Allahabad  511  (para  8)].
Article  327  provides  for  the  power  of  Parliament  to  make  provision  with respect  to  Elections  to  Legislatures  subject  to  the  provisions  of  the  Constitution.

SEC.  3(ii)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  851
The  Representation  of  People  Act  has  been  passed  under  Article  327  of  th Constitution  of  India.
Section  20  of  the  Representation  cC  Poe-ple  Act  provides  for  general  duty  o Chici  Electi ral  Officers  of  each  State,  but  it  is  subject  to  the  superintendence direction  and  control  of  the  Election  Commission,  the  Chief  Electoral  Office! shall  supervise  the  conduct  of  all  elec.ions  in  the  State,
Section  24  ibid,  provides  for  the  general  duties  of  the  Returning  Officers Thev  cover  all  things  necessary  for  effectually  conducting  the  election  in  the manner  provided  by  the  Act  and  Rules.  This  power  abo  must  be  deemed  t< bc  subject  to  Article  324  of  the  Constitution  of  India  and  to  section  20  of  th( Representation  of  People  Act.
It  has  been  held  in  Moti  Lai  vs.  Mangala  Fd.—15  E-L.R.  425  us  follows: —
"The  power  contained  in  article  324(1)  is  a  general  power  and  the  Election Commission,  therefore,  would  be  bound  to  carry  out  the  specific provisions  contained  in  any  Act  passed  by  the  Parliament,  Bui where  the  Act  itself  omits  to  provide  for  a  contingency  and  doe.1 not  contain  any  provision  for"  meeting  the  situation,  the  genera] power  conferred  upon  the  Election  Commission  by  Article  324(1) of  the  Constitution  will  come  into  play,  and  the  Commission  will have  a  right  to  pass  the  necessary  orders,  if  they  fall  within  the ambit  of  its  powers  enumerated  in  Article  324(1)".
167.  Section  58  of  the  Representation  of  People  Act  provides  for  reference  by the  Returning  Officer  to  the  Election  Commission  if  any  ballot  box  is  found  to have  been  damaged  or  tampered  with.
There  is  a  lacuna  in  the  Act  as  to  what  should  be  done  if  ballot  papers  are found  to  have  been  tampered  with.
It  would,  therefore,  bc  within  the  power  of  the  Election  Commission  to  i^sue such  directive  as  may  be  necessary  under  the  circumstances  of  the  case.
It  has  been  laid  down  in  Amin  Ahmad  vs.  Nand  Lai  Slnha  A.I.R.  1953  Patna 293  (Para  7)  as  follows: —
"Article  324  therefore  confers  executive  authority  on  the  Election  Commis- sion  to  superintend,  direct  and  control  all  elections  to  Parliament and  to  the  Legislatures  of  every  State".,
The  argument  advanced  by  the  learned  Advocate  General  on  behalf  of  Res- pondent  No,  1  cannot  be  accepted.  The  ruling  reported  in  G.  F  F.  Foulkes  & others  vs.  A,  Suppan  Chettiar. and  another  A.I.R.  1951  Madras  296  has  no  applica- tion  to  the  instant  case.
I,  hold  that  the  declaration  of  the  result  by  the  Returning  Officer  on  llth March  1962  was  in  violation  of  the  direction  lawfully  issued  by  the  Election Commission  and  it  was  in  breach  of  the  provisions  of  the  Constitution  of  India and  it  materially  affected  the  result  of  the  election.
168.  This  is  a  unique  case  in  the-  history  of  election,  in  which  a  candidate nominated  by  the  Congress  for  34  Gonda  Parliamentary  Constituency  won  the election  on  recount  by  tampering  no  less  than  2166  votes  with  the  active  assist- ance  of  -ome  of  the  Government  Officials,  who  conducted  the  election.
The  petitioner  had  written  to  the  Election  Commission  for  information  and statistics  relating  to  all  recounting  in  Parliamentary  constituencies  throughout the  country  during  the  general  election  of  1962.
 
In  response  to  this  request  the  information  £iven  to  him  as  stated  by  the petitioner  wa=i  to  the  effect  that  recounting  had  been  asked  for  in  27  Parliamen- tary  Constituencies;  it  had  been  allowed  only  in  7  and  that  of  those  7  there 7£he  nh  C+uangfT  in  l  I  r e s uits  a f t er  r e o o u n ti ng  in  two  cases,  that  in  four  cases although  the  figures  changed,  result  of  the  election  remained  unefrected  and that  in  only  one  case  namely  that  of  34  Gonda  Parliamentary  Constituency  the

g <-2  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  IT-
Petitioncr  has  filed  letter  No.  C 8R9-25  X X V / C X /A  dated  Julv  20,  1962  (Ex. P.  11)  from  the  Chief  Secretary  to  Government,  IT.  P.  to  Sri  N.  Dandekar (Petitioner).
At  the  time  of  the  election  there  were  departmental  charges  pending  against him.  This  is  indicated  bv  letter  (Ex.  P.  11)  referred  to  above.  (See  also  para  7 of  Petitioner's  deposition).
He  was  instrumental  in  bringing  about  the  succors  of  Respondent  No.  1  by corrupt  contrivance  and  the  auid  pro  quo  w&t  his  promotion  as  Commissioner of  Faizabad  in  November  1962  after  the  election,  although  he  was  previously superseded  (vide  Ex.  P,  157  and  Ex.  P.  161).
170.  The  other  officers  involved  in  thi<  affair  are: —
(2)  R.  B.  .Tohri,  Election  Officer,  Gonda. (3)  A.  S.  Mlsra,  Assistant  Returning  Officer,  Gonda  East  and  Gonda  "West
Segments.,
(4)  Krishna  Madho  Saran,  Treasury  Officer,  Gonda. (5)  Kali  Chander  Johri,  Nnzir,  Colileclorat=,  Gonda. (6)  Maqbool  Husain,  Election  Inspector,  for  suppressing  the  chart  of  allot- ment  of  counting  tables  to  the  counting  staff  in  the  combined  offi-ce, Collectorate.  Gonda.
In  my  opinion,  this  is  a  fit  case  for  enquiry  under  section  137  of  the  Repre- sentation  of  People  Act  against  the  abovementionod  six  officials.
171.  In  fact,  the  Chief  Election  Commissioner  accompanied  by  D.  E,  C.  arrived at  Tuicknow  to  enquire  into  the  above  matter  and  after  one  day's  enquiry  at Luckmow  they  proceeded  to  Gonda  on  the  morning  of  March  14.  19fl2  for  the same  purpose,  but  there  they  wore  served  with  an  interim  prohibitory  order, restraining  them  from  proceeding  further  with  their  Investigation  pending disposal  of  a  Writ  Petition  submitted  by  Respondent  No.  1  under  Article  226  of the  Constitution  of  Indie,  against—
(1)  The  Chief  Election  Commisiioncr, (2)  The  Deputy  Election  Commissioner. (3)  The  Chief  Electoral  Officer.  U.  P.  Government, (4)  The  Returning  Officer,  34  Gonda  Parliamentary  Constituency.
The  above  facts  arc  admitted  bv  Respondent  No,  1  in  para  78  of  his  written statement,
It  is  further  stated  that  in  the  sold  petition  presented  on  behalf  of  Respondent No.  1  by  the  Advocate  General  of  Uttar  Pradesh,  the  Lucknow  Bench  of  the Allahabad  High  Court  was  requested  to  issue  a  writ  in  the  nature  of  mandamus restraining  the  opposit  parties  Nos.  1,  ?,,  3  above  from  opening  and  inspecting any  election  paper  relating  to  34  Gonda  Parliamentary  constituency  and  from recording  any  statements  or  otherwise  collecting  information  from  the  Returning Officer  (opposite  party  No.  4  sbov^)  and  his  subordinate  staff  of  Gonda  In connection  with  the  counting  or  scrutiny  of  votes  in  the  'said  constituency.
The  above  facts  are  also  admitted  bv  Respondent  No.  1  in  his  written  state- ment.
172.  T  had  sent  for  the  record  of  the  Writ  Petition  mentioned  above.  It  has been  admitted  bv  Rama  Nath  Misra  (R.W.I)  that  the  application  for  stay  in the  above  Writ  Petition  was  moved  on  14-3-62  at  8  A.M. at  the  residence  of  the Hon'ble  Mr.  Justice  N.  U.  Bug  of  T.ucknow  Bench,  as  the  Chief  Election  Com- missioner  had'  proceeded  to  Gonda  in  the  morning.
Allegations  made  in  the  W'-it  Petition  against  the  Chief  Election  Commis- sioner  and  Deputy  "Election  Commissioner  though  supported  bv  an  affidavit  of Rama  Nath  Misra  (R.W.1)  were  found  to  be  entirely  baseless.  The  Writ  Petition was  finally  dismissed  on  6th  September,  1962.
173.  ISSUE  NO,  14.
It  is  well  established  that  when  a  candidate  is  charged  with  the  commission of  any  corrupt  practice,  the  charge  is  almost  in  all  respect  similar  to  a  criminal charge  and,  therefore,  the  party  who  alleges  corrupt  practice  must  establish  the charge  conclusively  beyondi  reasonable  doubt..  The  standard  of  proof  required is  the  standard  applicable  to  criminal  cases.

She. 3(ii)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  833
Respondent  No.  1  in  paragraph  5ti)  (.aj  and  (,b)  of  his  Recriminatory  Peti- lion  has  alleged  that  the  petitioner  himself  and  with  his  consent  and  approval hlauarnft-  Singh  ottered  and  promised  to  give  the  undernoted  gratifications  to Kypiicshwar  Sharma  Pathak  m  order  to  induce  him  not  to  stand  as  a  candidate at  the  election  and  not  to  lile  his  nomination  paper  for  the  same.
"(.a)  That  Shri  Raghvendra  Pratap  Singh  and  Shri  Naurang  Singh  shall use  their  influence  and  make  every  effort  as  important  persons  of the  Swtantra  Party  and  members  of  the  Assembly  to  get  Shri  K.  S. Pathak  elected  as  member  of  the  U.P.  State  Legislative  Council  in the  next  on-coming  election  for  the  same."
"(b)  That  the  Petitioner  and  Shri  Naurang  Singh  offered  to  pay  Rs.  1,000 also  to  Shri  K.  S,  Pathak,  who  accepted  the  offer  and  withdrew  from the  contest."  1
The  above  allegations  are  denied  by  the  Petitioner.
Respondent  No.  1  has  no  personal  knowledge  of  the  above  ullcj, vtions.  His verification  is  to  the  eil'ect  that  he  was  informed  about  the  abov^  allegations which  he  believed  to  be  true.
] 74.  Respondent  No.  1 has  made  allegations  of  various  corrupt  practices  against the  petitioner  and  in  support  of  the  same,  he  has  examined  40  witnesses  (R.W. 23  to  R.W.  62).
.  •  ,  •  1 -_  1
They  witnesses  may  be  classified  in  three  categories  as  given  below:—
(1)  Witnesses  who  posed  as  Swatantra  Part}-  workers  during  the  election, but  have  come  to  depose  for  Respondent  No.  1.  Their  names  are given  below;—•
R.W.  23—Swami  Nath  Tcwari. R.W.  24—Dr.  Mohd.  Umar  Shah. R.W.  25—Gau  Saran  Rastogi. R.W.  26—Salaru. R.W.  29—Tribhuan  Dutt  Sharma. K.W.  31—Bachcho'o  Ram, R.W.  33—Nankau. R.W.  35—Sheo  Lagan. K.W.  37—Balbhaddar  Prasad. R.W.  41—Ram  Dularey. R,W.  42—Shamshad  Khan. R,W.  49—Swarup  Chandra. R.W.  52—Ram  Shankar. R.W.  54—Ganga  Ram. R.W.  57—Ram  Saran. R.W.  58—Shyam  Lai. R.W.  59—Lakshmi  Narain.
(2)  Witnesses  who  were  congress  workers  and  worked  for  Respondent  No.  1 during  the  election.  Their  names  are  given  below: —
R.W.  30—Sheo  Prasad. R.W.  32_J"amun?.  Prasad. R.W.  39—Kamta  Prasad. R.W.  40—Dayal. R.W.  46—Kailash  Nath. R.W.  50—Autar. R.W.  53—Sukh  Lai. R.W.  56—Ram  Chandra  Misra. R.W.  60—Tripurari  Jaitly. R.W.  62—D.  P.  Tand'on.

g^4  T HE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  tt-
3.  Witnesses  who  did  not  belong  to  any  party.  Their  names  are  given below: —
,
R.W.  27—Sushil  Chandra. R.W.  28—Bhiki  Ram. R.W.  34—Samokhan. R.W.  36—Brahma  Dutt. R.W.  38—Ram  Kumar, R.W.  43—Ram  Bahadur. R.W.  44—Sheo  Prasad. R.W.  45—Ram  Sagar. R:W.  47—Lai  Bahadur. RW.  48—Raghuvansh, R.W.  51—Ram  Charitar. R.W.  55—Naraln, R.W.  61—Badri  Prasad.
175.  Respondent  No  1  has  examined  Swami  Nath  Tewari  (R.W.  23)  and Raghuvansh  (R.W.  48)  on  Issue  No.  14,
Swami  Nath  Tewari  (R.W.  23)  deposed  that  in  November  1961  he  started election  campaign  for  Kapileshwar  Sharma  Pathak,  an  Advocate  of  Gonda  and worked  for  him  till  the  14th  of  January  1962.  He  says  that  for  the  purposes  of election  campaign  Kapileshwar  Sharma  Pathak  took  a  house  of  Merai  Saha  of Khargoopur  Bazar  on  Rs.  20  per  month.  Three  persons  were  employed  for this  work,  They  were  Ram  Dhiraj,  Shyam  Lai  and  Ram  Khelawan.
He  goes  on  to  say  that  on  the  14th  January  1962  Kapileshwar  Sharma  Pathak did  not  come  to  Khargoopur  and  so  he  went  to  Gonda  and  met  him  where  he was  Informed  by  Kapileshwar  Sharma  Pathak  that  he  had  dropped  the  idea  of contesting  the  election  and  he  directed  him  to  go  to  Mohan  Lai  vakil,  where  the petitioner  used  to  say.  He  was  given  a  letter  of  Introduction,  He  met  the petitioner  there  and  was  told  that  Dr.  Siraj  Ahmad  shall  be contesting  the  election for  Gonda  North  Assembly  constituency  and  he  should  go  and  sec  him.  He  also paid  him  Rs.  50 and  directed  him  to  continue  with  those  workers  who  worked  for Kapileshwar  Sharma  Pathak  and  also  to  employ  some  more  persons.
He  adds  that  on  being  questioned  as  to  why  he  dropped  the  idea  of  contesting election,  Kapileshwar  Sharma  Pathak  said: —
"Ham  nahin  larege  isliye  ki  hamae  aur  Dandekar  Sahib  se  tai  ho  gaya  hai ki  yadi  main  jeet  jaunga  to  aap  ko  M.L.C.  banwa  dooga".
In  his  cross-examination  he  admiLs  that  Kapileshwar  Sharma  Pathak  did  not tell  him  who  would  get  him  nominated  as  M.L.C.  He  admits  that  the  petitioner had  riothing  to  do  with  the  nomination  of  any  person  as  M.L.C.
When  he  says  that  he  was  not  a  paid  worker  he  contradicts  his  own  version that  he  was  paid  Rs.  50  toy  the  petitioner  to  continue  with  those  workers  who worked  for  Kapileshwar  Sharma  Pathak.
In  his  cross-examination  he  says  that  Ka-piieshwar  Sharma  Pathak  did  not file  his  nomination  paper  in  the  election  of  1962,  He  considered  that  if  Kapilesh- war  Sharma  Pathak  had  contested  the  election,  he  would  have  Won.  It  is, therefore  difficult  to  believe  this  witness  that  Kapileshwar  Sharma  Pathak  was lured  by 'promise  that  he  would  be  elected  as  M.L.C.  when  he  had  every  chance of  success  on  his  own  merit  for  the  seat  in  the  Assembly.
176  RW  23  further  says  that  Kapileshwar  Sharma  Pathak  was  to  Contest  the election  as  an  independent  candidate,  In  this  he  is  contradicted  by  Raghuvansh (RW  48)  who  is  alleged  to  have  worked  as  the  clerk  of  Kapileshwar  Sharma Pathak  According  to  Raghuvansh  (R.W.  48),  Kapileshwar  Sharma  Pathak  was to  contest  the  election  frtom  Gonda  North  Assembly  constituency  as  a  Swatantra party  candidate.  Swami  Nath  Tewari  (R.W.  23)  says  nothing  about  the  allega- tions  made  in  para  5(i)  (b)  of  the  Recriminatory  Petition.  Kailash  Nath  (R.W. 46)  does  not  name  him  as  Swatantra  Party  worker  at  Khargoopur.
 
In  his  cross-examination  he  posed  as  a  sympathiser  of  Swatantra  Party  in 1957  Election  and  says  that  Naurang  Singh  had  contested  as  Swatantra  Party

SEC.  3(ii)]  .  THE  CAZETTK  CH"'INDIA  EXTRAORDINARY  855
candidate  In  that  election.  This  is  obviously  false  as  in  the  year  1057  Swatantra Party  was  not  in  existence,  ,
He  was  a  teacher  in  Khargoopur  school  of  which  Sri  R.  L.  Gupta,  Advocate for  Respondent  Mo.  1  was  the  Manager  [See  para  ti  ot  the  deposition  ol  Tribeni Prasad  (P.W.  16)].  He  said  he  worked  ior  Swatantra  Party  and  now  be  appeared as  a  witness  i'or  the  rival  candidate,  R.W.  23  is  a  tutored  witness,  his  evidence is  not  worthy  of  any  credence.
177.  Raghuvansh  (R.W.  48)  stated  that  he  was  a  clerk  of  Kapileshwar  Sharma Pathak  and  he  worked  for  him  in  his  election  campaign  for  Gonda  North  Assemb- ly  Constituency  for  about  3  months.
His  above  statement  is  false  as  will  be  clear  from  his  cross-examination.  He admitted  that  in  1962  his  name  was  registered  as  a  clerk  of  Sri  Aditya  Prasad Dixit,  Advocate,  but  he  adds  that  alth'ough  his  name  continues  to  be  registered as  his  clerk,  he  began  working  for  Kapifeshwar  Sharma  Pathak,
He  further  says  that  Kapileshwar  Sharma  Pathak  had  a  mind  to  contest  as  a Swatantra  Party  candidate,  in  this  also  he  is  contradicted  by  Swami  Nath  Tewari (R.W.  23).
He  further  says  that  one  month  before  the  date  of  p'oll,  Thakur  Naurang  Singh and  Sri  Dandekar  visited  Kapileshwar  Sharma  Pathak's  houso  at  10-30  a.m, Naurang  Singh  asked  Sri  Pathak  to  refrain  from  contesting  the  election  and  he promised  him  to  pay  the  entire  expenditure  which  he  mi^ht  have  incurred  by that  time  and  als'o  promised  to  get  Sri  Pathak  elected  as  M.L.C.  after  Naurang Singh  gets  elected  to  the  Assembly.  On  Sri  Pathak's  informing  them  that  he had  incurred  an  expenditure  of  about  Rs.  1000  they  promised  to  pay  the  amount to  him  if  he  did  not  contest.  ,
In  his  cross-examination  he  say  that  Swami  Nath  Tewari  (R.W.  23)  was  called by  Kapileshwar  Sharma  Pathak  for  the  first  time  on  the  day  when  Naurang  Singh and  Sri  Dandekar  came  to  sec  him.  In  this  he.  is  contradicted  by  Swami  Nath Tewari  (R.W.  23).
Again  he  could  not  say  who  were  Lhe  workers  at  the  election.  He  could  n'ot say  whether  Kapileshwar  Sharma  Pathak  was  working  for  Ram  Lai  Gupta's election  at  that  time.  Ex.  P.  123  which  has  been  proved  by  Badri  Prasad  (R.W. Gl)  shows  that  Kapileshwar  Sharma  Pathak  was  Working  actively  for  Ram  Lai Gupta,  who  was  appearing  in  this  case  as  Respondent  No.  1's  counsel.  [See  para 2i of  the  deposition  of  Naurang  Singh  (P.W.  15,)].
This  clearly  shows  that  the  allegation  made  by  Respondent  No.  1  that  1he petitioner  had  offered  gratification  to  Kapileshwar  Sharma  Pathak  to  withdraw from  election  is  false.  ,
178.  The  learned  counsel  for  Respondent  No.  1  contended  that  the  plea  that R.  L.  Gupta  Advocate  was  proposed  as  a  congress  candidate  for  the  Assembly  Seat from  Gonda  North  did  not  find  place  111 the  written  statement  of  the  petitioner.
There  is  no  force  in  the  above  contention,  y^  the  burden  to  prove  the  allega- tions  entirely  rests  on  Respondent  No.  1.  The  petitioner  has  totally  denied  the allegation.  He  could  rebut  the  evidence  by  showing  the  falsity  of  what  the Respondent  No.  l's  witnesses  have  deposed.
It  is  significant  to  note  that  Respondent  No.  1 has  n'ot  put  Kapileshwar  Sharma Pathak  in  the  witness-box  in  support  of  his  allegations.
I  find  that  Respondent  No.  1  has  failed  to  substantiate  the  allegations  made in  para  B(i)(a)  and  (b)  'of  the  RecrjminaLory  Petition.
I  hold  that  neither  petitioner  nor  Naurang  Singh,  with  his  consent,  promised any  gratification  to  Kapileshwar  Sharma  Pathak  to  induce  him  not  to  stand  as  a candidate  at  the  election  for  the  U.P.  State  Legislative  Assembly  fr'om  G-onda North.
 
179.  Issue  No. 1&. lln  para  5(ii)  of  the  Recriminatory  Petition,  it  is  alleged  that  on  13th  January 1962  the  petitioner  and  Naurang  Singh  visited  Siraj  Ahmad  at  latter's  residence at  Intia-thok,  District  Gonda  an

885  T HE  ("A^liTTE  CH  INDIA  EXTRAORDINARY  [PARI  I I-
Nuurang  Singh  ollered  to  use  his  influence  in  region  'of  Intia-thok  Block Development  and  suppori,  Siraj  Ahmad  to  the  post  of  Block  Pramukh.  Further that  the  petitioner  ana  Naurang  Singh  ottered  to  give  m'oncy  tu  Siraj  Alimcd  to cover  all  his  election  expenses.  The  above  allegations  have  been  denied  by  the petitioner.  ,
Respondent  No,  1  has  examined  Mohammad  Lfmar  (R,W.  24),  Gau  Saran RasLOgl  v,iil.W.  2b),  Saituu  (K.W-  lid)  axia  Shamsimd  Khun  (R.w,  42;  m  support of  the  above  allegations.
Mohammad  Umar  (R.W.  24)  says  that  he  is  a  friend  of  Dr.  Siraj  Ahmad  of Intia-thok.  He  was  called  by  Siraj  Ahmad  on  12th  January,  1962.  The  next day  at  about  9  A.M. the  witness  went  co  the  house  oi  Siraj  Ahmad-  On  arriving, Siraj  Ahmad  told  him  ihut  he  had  a  mind  to  contest  the  election  and  wanted  his advice.  He  also  asked  him  to  wait  toi"  some  persons  who  were  expected  there. He  goes  on  Lo say  that  at  about  2  P.M.; the  very  day  Naurangl  Singh  and  Sri Uandekar  arrived  there.  They  took  Siraj  Ahmad  from  his  dispensary  to  his residential  house  where  the  witness  and  one  Gau  Saran  Rastogi  (R,W.  25)  were called.  There  he  was  informed  that  JNaurang  Singh  wanted  Siraj  Ahmad  to contest  as  an  independent  candidate  for  the  Assembly  seat  of  Gonda  North Constituency.
On  his  expressing  a  doubt  why  Naurang  Singh  who  wa3  himself  a  candi- date  would  induce  Siraj  Ahmad  to  contest  for  the  same  seat,  Naurang  Singh  is said  to  have  informed  him  that  he  was  instrumental  in  making  Mahadeo  Prasad to  contest  the  Assembly  scat  of  that  constituency  as  a  Hindu  Mahasabha  candi- date  wilh  a  view  that  he  could  geL  the  votes  of  Jansang  candidate  divided  and wanted  Dr.  Siraj  Ahmad  to  contest  for  the  seat  so  that  the  Muslim  votes  which in  the  ordinary  course  would  go  to  congress  candidate  would  also  be  divided.
He  further  says  that  Thakur  Naurang  Singh  assured  that  as  he  commanded sufficient  influence  in  the  Block  Intia-thok  lie  would  exercise  his  influence  for Dr.  Siraj  Ahmad  in  getting  him  elected  as  Pramukh  of  that  Block,  Naurang Singh  further  promised  Gau  Saran  Rastogi  that  he  would  get  him  elected  as Vice-President  of  the  Block.  This  is  an  improvement  by  the  witness  as  there is  no  allegation  of  promise  to  Gau  Saran  Rastogi.
He  adds  that  petitioner  also  made  similar  promises  to  Siraj  Ahmad.
180.  Mohammad  Umar  (R.W.  24)  posed  as  a  Swatantra  Party  worker  in  the last  election.  He  has  now  come  to  depose  in  favour  of  the  rival  candidate. According  to  him,  petitioner  and  Naurang  Singh  induced  Siraj  Ahmad  on 13th  January  1962  to  contest  the  election.  He  is  contradicted  by  Raghuvansh (R.W.  48)  who  has  deposed  that  Siraj  Ahmad  started  his  election  campaign  two months  before  the  poll  i.e.,  since  about  19th  December  1961,
It  is  not  alleged  in  paragraph  5(ii)(a)  of  the  Recriminatory  Petition  that  the petitioner  also  promised  to  help  Siraj  Ahmad  in  getting  him  elected  to  the  post of  Block  Pramukh.
Kailash  Nath  (R.W.  46^  does  not  mention  the  name  of  this  witness  as  the worker  of  Swatantra  Purty  at  Khargoopur.
The  statement  of  Mohd.  Umar  (R.W.  24)  in  para  8  of  his  cross-examination discredits  the  entire  evidence  about  the  alleged  promise  of  gratification  to  Siraj Ahmad  or  that  he  was  induced  by  the  petitioner  to  fight  the  election.  In  para  8 he  has  stated  as  follows:—
"Naurang  Singh  did  not  ask  me  that  Muslim  voters  may  be  told  to  vote for  him.  Naurang  Singh  was  standing  as  a  rival  candidate  of  Siraj Ahmad.  Naurang  Singh  is  a  resident  of  this  place  and  he  wus acquainted  with  the  Muslim  voters.  Muslim  voters  must  have  been on  his  side  also.  On  account  of  Siraj  Ahmad's  standing  as  a  candi- date  for  Gonda  North  Assembly  scat,  Naurang  Singh  was  adversely affected,  but  he  benefited  also  because  he  won  the  election".
It  is,  therefore,  clear  that  there  wa3  a  conflict  of  interest  between  Siraj  Ahmad and  the  Swatantra  Party  and  it  is  impossible  to  believe  the  story  given  by  the witnesses  that  petitioner  or  Naurang  Singh  on  his  behalf  had  induced  Siraj Ahmad  to  light  the  election  for  the  Assembly  scat  in  Gonda  North  in  order  to divide  the  congress  votes,
 
181.  Gau  Saran  Rastogi  (R.W.  25)  claims  to  be  a  friend  of  Siraj  Ahmad  and is  a  supporter  of  Swatantra  Tarty.  He  hss  now  appeared  as  a  witness  for  the

SFC.  3d'I)]  -  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  857
rival  candidate.  He  says  that  he  and  T>.  IJmar  fR.W.  24^  were  called  at  the residence  of  Siraj  Ahmad  nboiit  a  month  beCore  the  date  of  poll.
Tn  this  he  directly  contradicts  Mohd.  Umar  (R.W.  2,4)  who  has  stated  that Siraj  Ahmad  was  taken  from  his  disosrtsarv  to  his  residence  bv  Naurang  Singh and  thn  petitioner  where  he  made  the  proposal  tn  Siraj  Ahmad  to  fight  the  elec- tion.  Dr.  Umar  (RW.  24)  had  enquired  as  ^o  who  was  to  bear  the  expenditure. But  Dr.  TTmar  in  his  evidence  does  not  say  th:it  he  had  made  any  enquiry  in  the matter  of  expenditure.
Both  Mohd.  Umar  (R.W.  24)  and  Gau  Sm--m  Rastogi  fR.W.  25)  are  at  variance •with  each  other  regarding  the  conv^rsaUon  beWeeq  them  and  the  petitioner regarding  the  election  expenses  nf  Sirai  A.limiil
Raghuvansh  fR.W.  48>  has  slated  that  Sir-ij  Ahmad  s^tot"!  his  election campaign  two  months  before  the  election.  Therefore,  the  version  of  Mohd. Umar  fR.W.  24)  and  Gail  Sarnn  Rastogi  fR.W.  25)  thai  Sirai  Ahmad  was induced  to  stand  in  the  elnc+inn  a  month  before  the  noil  is  falsified
182.  Salarno  fR.W.  21)  deposed  that  he  was  nnpnged  v,v  Sh-,-^  Ahmad  to  work for  him  in  his  election  on  payment  of  Rs.  3  ner  dav  and  he  was  asked  *n  canvass for  the  Detitioner  also  amongst  1he  Muslim  community  He  was  provided  with two  symbols—one  having  cyrle  nnd  +he  ntho-r  having  SLa"  si7mbnj.  He  used  to canvass  in  villages  mostly  inhabited  bv  Muslims.
From  thn  n a t u re  of  his  cross-e^;iminntin-n  \< is  ni^pi-  that  he  is  -i  tutored  wit- ness.  Ho  does  not  know  how  many  candidates  were  contesting  the  election  for Assembly  seat  from  Oonda  North,  neither  does  he  know  the  nime^  oC such  candi- dates  except  fiira-j  Ahmad  and  Nauran"  Sintfh  He  could  riot  sav  wh^n  he  com- menced  the  work  and  unto  which  dale  h"  worked.  He  only  remembers  that  be worked  for  about  a  month.
He  further  says  that  nollinc  at  Kalaina  and  Av,~  were  on  different  dates.  CSee pa^-a  5  of  his  deposition).
He  is  obviously  tellinff  lies.  Moreover,  his  evidence  do^s  not  bring  the  case under  section  123  of  the  Representation  of  People  Act.
183.  Shnmshad  Khr.ui  fR.W.  42)  is  a  resident  of  Khareoopur  Bazar.  He  knows Sirai  Ahmad  of  Tntia-thok.  He  was  asked  bv  Siraj  Ahmad  to  heln  him  in  his election  secretly  and  wanted  th'it  he  chr-iild  wnr"!"titionpr,  who  was  cooperating  with  him.  He says, that  be  was  piven  a  letter  w b ^h  he  banded  over  to  the  petitioner,  who armointed  him  for  doinp  1he  work  of  Si'-ai  Ahmad  on  pnvment  nf  "Rs.  R per  day. He  was  paid  Rs.  30  by  the  petitioner.
In  his  cross-examination  he  admits  that  h^  was  in  the  congress  and  even  now he  is  a  congress  man
I  disbelieve  him  when  he  says  he  worked  for  t.h°  octitinner  or  Si-ai  Ahmad. His  evldoncp  that  hf.  received  pavmen+  of  Rs.  30  from  the  p^itinner  or  was getting  Rs  8  per  dav  bv  him  to  work  +nr  Pira)  Ahmad  is-  obviouslv  false.  No reliance  can  be  placed  on  his  evidence.  Tn  fact,  he  was  working  for  Respondent No.  1  (See  para  II  of  the  deposition  of  Ram  Saran  R.W.  57)
The  b-st  evidence  would  hpve  been  that  oF  Sirai  Ahmad,  but  he  has  not  been examiner)  bv  Respondent  No.  1  to  simnort  the  -\1i"uq+in-is  of  corrupt  practice contained  in  para,  5fil)fa)  and  (b)  of  the  Recriminatory  "Petition.
Dr.  Mobd.  Umar  fR.W  24),  Gau  Sar.'in  Rpsto?i  fR.W.  25)  Sribiru  (RW.  2fi) Shamshad  Kbe.n  CH  W.  42)  claim  to  h i ve  worked  for  ihe  S"^1  intra  P^rtv  in the  last  election  and  now  they  pppr-ared  as  iniincooo-  f->-  ;i  -rival  ^'indidpte
Their  evidence  as  already  pointed  out  is  tainted  and  no  r"li:mfic  can  be  place on  them.  It  was  held  in  Laohhiwrn  Fivri'i  Vs  Hrtrrmrkavi'  K.'mr—in  Kf&.  41]7 as  follows;,—
 
"Wholesale  desertion  of  a  candidate  by  his  devoted  supporters  and  active workers  during  the  eVction  can-roaifn  and  their  aDpoFicnrsce  rr> ".iMf'.sf  \vitno"?p<:  i-e.''  t h"  v i vi  (.i"nd;'n-te  —ho  1,3  r-vel'i - u  to  unseat him.  is  sufficient  .ji  itself  to  arouse  tn"  ftroncest  susnicions  as  to the,  0071a  ildes  of  the  wit-nesses.  It  has  been  only  01;. y^v-  rare O T I '- sions  that  rin^'on0  has  voiunt'-iriin-  mzn"  fe^wa^d  a"d  given  evidence against  anyone  1o  whom  he  wa"  rjenuinely  well-disposed."

858  THE  GA/.KTTE  OF  INDIA  EXTRAORDINARY  [PART  II-
I  find  that.  Respondent  No.  11  has  failed  to  substantiate  the  allegations  and  I hold  that  neither  petitioner  nor  Thakur  Naurang  Singh  offered  gratification  to Siraj  Ahmad  or  induced  him  to  stand  as  a  Muslim  candidate  for  the  U.P.  Legis- lative  Assembly  from  Gonda  North  Constituency.
1!J4,  Issue  No.  16. In  para  5(iii)  of  the  Recriminatory  Petition,  Respondent  No.  1  alleges  that Naurang  Singh  with  the  consent  and  at  the  instance  of  the  petitioner  visited Mahadeo  Prasad  in  his  village  Basalatpur  in  October  1961  and  induced  him  to stand  as  a  candidate  for  the  Assembly  scat  in  Gonda  North  in  order  to  divide the  votes  of  the  congress  candidate.
Respondent  No.  1  further  alleged  that  following  gratification  was  offered  to Mahadeo  Prasad  by  Naurang  Singh:—
fa)  That  Naurang  Singh  will  by  his  personal  influence,  exercise  through his  son,  Sri  Shivraj  Singh,  who  is  the  principal  of  the  College  at Tulsipur,  Distt.  Gonda,  to  get  the  son  of  the  said  Sri  Mahadeo Prasad  appointed  as  a  teacher  in  that  college.
(b)  That  Shri  Narain  Dandekar  would  meet  all  the  expenses  of  Shri Mahadeo  Prasad  in  respect  of  election  in  question  and  would  also provide  workers  for  the  election  of  Shri  Mahadeo  Prasad  and  did  so."
Respondent  No.  1  has  examined  Mohd.  Umar  (R,W.  24),  Tribhuan  Dutt Sharma  (R.W.  29),  Balbhaddar  Prasad  (R.W.  37)  and  Ram  Dulare  (R.W,  41).
Mohammad  Umar  (R.W.  24)  whose  evidence  has  already  been  referred  to  in para  180  of  the  judgment  says  that  Naurang  Singh  told  him  that  he  had  set  up Mahndoo  Prasad  as  a  Hindu  Maha  Sabha  candidate  so  that  Jan  Sangh  votes  may he  divided.  He  does  not  say  anything  about  the  alleged  gratification,  He  does not  say  about  the  consent  of  the  petitioner.  There  is  nothing  in  his  evidence  to show  that  Naurang  Singh  had  any  influence  with  the  Hindu  Maha  Sabha  Party to  obtain  the  party  ticket  for  Mahadeo  Prasud,  who  prior  to  this  was  the  President of  the  Mandal  Congress  Committee  and  having  resigned  that  position  set  him- self  up  as  a  Hindu  Maha  Sabha  candidate.
No  reliance  can  be  placed  on  the  evidence  of  Mohammad  Umar  (R,W,  24). Besides,  what  he  hap  stated  is  hearsay.  Naurang  Singh  (P.W.,  15)  has  denied, that  he  had  set  up  Mahadeo  Prasad.
185.  Tribhuan  Dutt  Sharma  (R.W.  29)  was  a  congress  party  worker  for  45 years  and  a  day  before  the  poll  he  became  a  Swatantra  Party  worker  for  the petitioner.  It  is  absurd  that  he  would  have  done  so.
He  says  that  he  became  cunous  on  seeing  Mahadeo  Prasad  in  the  company  of Naurang  Singh  and  the  petitioner  two  months  before  the  poll  and  on  being questioned  about  his  association  with  the  above  named  persons,  he  is  said  to have  informed  him  that  he  had  resigned  from  the  Congress  and  that  Naurang Singh  and  the  petitioner  wanted  him  to  contest  the  Assembly  election  as  a  Hindu Maha  Sabha  candidate.
There  Js  no  evidence  how  the  Maha  Sabha  party  could  be  persuaded  to  give  a ticket  to  Mahadeo  Prasad,
Tribhuan  Dutt  Sharma  (R.W,  29)  is  telling  a  falsehood  when  he  says  that he  was  told  by  Mahadeo  Prasad  that  he  was  being  asked  by  Naurang  Singh  and the  petitioner  to  contest  the  Assembly  spat  as  a  Hindu  Maha  Sabha  candidate. Tribhuan  Dutt  Sharma  (R.W.  2fl)  worked  for  the  Congress  (See  para  16  of  the deposition  of  Naurang  SinRh  P.W.  15)  and  he  is  interested  In  supporting Respondent  No.  J.
196.  Balbhaddar  Prasad  (R. W.  37)  says  that  Mahadeo  Prasad  is  a  relation of  his  and  that  Naurang  Singh  is  their  common  friend,  He  says  that  some  three months  before  the  date  of  poll  i.e,  in  November  1961,  Mahadeo  Prasad's  son came  to  him  and  took  him  to  his  village  where  he  found  Naurang  Singh  and Mahadeo  Prasad  together.  There  he-  was  informed  by  Mahadeo  Prasad  that Nauranvr  Singh  wanted  him  to  contest  Assembly  election  and  he  advised  him that  if  Naurang  Singh  was  benefited  by  that  he  should  contest  the  election,  and on  being  questioned  Naurang  Singh  informed  him  that  local  votes  would  be divided  if  Mahadeo  Prasad  was  set  up  as  a  candidate.  "Further  that  Naurani? Singh  tolr!  him  that  expenditure  would  be  borne  bv  the  petitioner  who  was  to contest  the  Parliamentary  seat  and  as  he  is  a  Brahman  the  canvassing  would be  in  the  name  of  Brahman  for  Assembly  as  well  as  for  Parliament.

SEC.  S(ii)]  THE  GAZETTE  Of  INDlA  EXTRAORDINARY  Jyjy
He  further  says  that  Naurang  Singh  told  Mahadeo  Prasad  that  he  would  gel iiis  son  appointeci  at  Tulsipur  wnerc  Ms  son  was  working  as  Principal  and  asked nim  that  it  Mahaueo  Frasad  was  his  friend  he  should  help  him  in  that  way He  and  Mahadeo  Frasad  agreed  to  that  proposal.
All  that  this  witness  has  deposed  is  hearsay  and  Is  not  admissible.  It  was  for Respondent  Mo.  1  to  examine  Mahadeo  Prasad  in  support  of  his  allegation.
187,  Ram  Dularey  (R.  W.  41)  is  a  resident  of  Khargoopur  Bazar.  He  says that  he  agreed  to  worit  for  ihe  Swatantra  Party  and  was  willing  to  be  employed Dy  the  petitioner.  Jtie  saw  the  petitioner  and  was  engaged  by  him  on  Ks.  6/- per  day.  According  to  him,  he  was  employed  by  the  petitioner  to  find  out secretly  whether  Mahadeo  Prasad  was  working  only  for  himself  or  for  the  peti- tioner  also.
He  says  that  he  was  informed  by  the  petitioner  that  although  Mahadeo Prasad  was  a  Hindu  Maha  Sabha  candidate,  there  had  been  a  settlement  between him  and  Mahadeo  Prasad  that  the  election  campaign  would  be  for  him  as  well as  for  the  petitioner.
He  glibly  gives  exact  dates  of  visiting  several  places  on  more  than  10  occa- sions,  a  rare  feat  of  memory  which  can  hardly  be  believed.  He  could  not remember  the  daie  on  which  Naurang  Singh  Hied  his  nomination  paper  nor  could he  remember  the  date  on  which  the  petitioner  filed  his  nomination  paper.  He could  not  remember  the  dates  lor  tilling  the  nomination  paper  for  the  Assembly election  or  for  the  Parliamentary  election.
Ram  Saran  (R.  W.  57)  has  stated  in  para  11  that  Dularey  and  Samsad  were present  in  congress  camp  on  the  date  of  poll  in  Khargoopur  Imalia  Polling  Sta- tion.  Ram  Dularey  claims  to  have  worked  for  the  petitioner  in  the  election  but he  has  now  come  to  give  evidence  for  the  rival  candidate.  Judging  as  a  whole It  is  clear  that  his  evidence  has  been  cleverly  concocted  to  support  Respondent No.  1,  as  such,  it  must  be  rejected.
The  best  evidence  would  have  been  of  Mahadeo  Prasad  himself.  He  has  not been  examined  by  Respondent  No.  1.  I  tind  that  Respondent  No-  1  has  failed  to discharge  the  burden  that  lay  on  him  to  substantiate  the  allegations  made  in para  5(nil  of  his  Recriminatory  Petition.
I  hold  that  Naurang  Singh  did  not  offer  any  gratification  to  Mahadeo  Frasad to  induce  him  to  stand  as  a  candidate  at  the  Assembly  election  from  Gonda North.
199.  Issue  No.  17.
Respondent  No.  1  in  para  5Civ)  of  his  Recriminatory  Petition  has  alleged  that in  the  area  and  circle  of  Pacharan  Polling  Station  of  Gonda  North  Assembly Segment  of  the  constituency  in  question,  the  only  candidates  who  had  good prospects  and  appeal  were  Congress  and  Jan  Sangh  candidates.  Naurang  Sin^h with  the  consent  and  approval  of  Shri  Dandekar  and  with  the  object  of  impair- ing  the  prospects  of  the  Congress  candidates  and  to  gain  advantage  thereby  for themselves,  distributed  money,  through  Shri  Jamuna  Prasad  Tewari,  Sarpanch of  village  Susgawa,  who  is  also  Sarpanch  of  Khargoopur  and  Imalia,  to  about 300  voters  on  18-2-1962  in  villages  mentioned  in  Annexure  1 with  the  stipulation that  those  voters  would  refrain  from  going  to  polling  stations  and  refrain  from casting  their  votes.
Petitioner  specifically  denied  that  he  gave  his  consent  or  approval  to  any  such alleged  acts  of  Naurang  Singh.  Petitioner  stated  that  so  far  as  his  information goes  Jamuna  Prasad  Tewari  was  a  supporter  of  Respondent  No.  1 in  his  election.
189.  Respondent  No.  1  has  examined  Ram  Dularey  (R.  W.  41),  Ram  Bahadur (R.  W.  43),  Swamp  Chand  (R.  W.  49),  Ram  Saran  (R  W.  57)  and  Lakshmi Narain  (R.  W.  59).
'
 
The  evidence  of  Ram  Dularey  (R.  W.  41)  is  to  the  effect  that  on  16-2-1962 when  he  was  leaving  Gonda  with  a  bundle  containing  copies  of  Nagrik,  Naurang Singh  asked  the  petitioner  to  give  Rs.  500/-  to  him  to  be  handed  over  to  Jamuna Prasad  Tewari  of  village  Susgawan.  Ho  received  Rs.  500/-  from  the  petitioner. He  was  given  the  direction  that  Jamuna  Prasad  Tewari  should  be  informed  that money  was  to  be  distributed  among  such  voters  of  the  villages  Anantwapur, Kamrawa,  Lonawa,  Imilia,  Husainnagar,  Naushahra,  who  did  not  like  to  vote for  Swatantra  Party  and  were  staunch  congress  men.  Rs  2/-  or  Rs.  4/-  were required  to  be  given  to  every  such  voters  who  could  either  be  brought  round  to

86o
'A'HE  GAZETTK  OF  INDIA  EXTRAORDINARY  [PART  11-
vote  for  the  petitioner  and  if  that  was  not  possible  offer  should  be  made  to  such voter  to  stop  him  from  casting  his  vote.  He  took  the  money  and  handed  it  over to  Jamuna  Prasad  Tewari  giving  him  the  above  direction.
The  above  evidence  is  contradictory  to  the  allegations  made  in  para  5(iv)  of the  Recriminatory  Petition.
190.  Ram  Dularey  (R.  W.  411  says  that  at  the  instance  of  one  Tribeni  Prasad Pandey  who  was  a  Swatantra  Party  man,  he  went  to  the  petitioner  and  was employed  by  him  on  Rs.  5/-  per  day  for  uhe  purpose  of  election.
In  fact,  he  was  a  congress  worker  and  he  was  a  polling  agent  of  Respondent No.  1  during  the  election.  Respondent  No.  l's  witness  Ram  Saran  (R.W.  57)  has testified  that  he  had  seen  Dularey  and  Shamsad  in  the  congress  camp  in  Khargoo- pur  imalia  Polling  Station  on  the  aay  ol  the  poll.  The  aoove  testimony  oi sxaan Saxan  (R.W.  57)  corroborates  the  evidence  of  Tribeni  Prasad  (P.W.  16)  that  Ram Dularey  (R.W.  41)  was  a  worker  ot  the  congress  party.
Naurang  Singh  (P.W.  15)  has  deposed  that  Jamuna  Prasad  Tewari  is  a  man of  Kam  Lai  Gupta,  Advocate  (he  appeared  as  counsel  for  Respondent  No.  I)  and his  son  resides  in  the  house  of  Ram  Lai  Gupta.  He  further  says  that  Jamuna Prasad  Tewari  was  the  worker  of  Siraj  Ahmad  and  Respondent  No.  1.
V.  B.  Bhadkamkar  (P.W.  2)  has  also  stated  that  Jamuna  Prasad  Tewari  who Is  alleged  in  the  Recriminatory  Petition  to  have  given  money  to  the  voters  was  the polling  agent  of  Respondent  No.  1,  It  is  abundantly  clear  that  Ram  Dularey (R.W.  41)  was  a  congress  worker  and  l  disbelieve  him  when  he  says  that  he  was employed  by  the  petitioner  on  Rs,  5  per  day  to  work  for  him  in  the  election.
191.  Ram  Bahadur  (R.W.  43)  is  a  resident  of  village  Birmapur.  He  speaks about  the  distribution  of  money  by  Jamuna  Prasad  Tewari  at  the  rate  of  Us.  2 per  voter  to  the  Voters  of  Birmapur.
The  village  Birmapur  is  not  mentioned  in  Anncxure  I.  I,  therefore,  reject  the evidence  of  Ram  Bahadur  (R.W.  43)  altogether,  about  the  alleged  distribution  ot money  by  Jamuna  Prasad  Tewari  to  the  Voters.
Swarup  Chandra  (R.W.  49)  says  that  his  uncle  Rampat  Tewari  did  the  election campaign  for  Swatantra  Party  at  Kamrawa  and  he  also  acted  as  Swatantra Party  agent  on  the  day  of  poll.  At  the  instance  of  Rampat  Tewari,  he  went  to Jamuna  Prasad  Tewari,  who  gave  him  a  letter  for  the  petitioner.  On  the  day of  poll,  he  saw  Jamuna  Prasad  Tewari  who  handed  over  Rs.  40  to  him  to  be given  to  Rampat  Tewari  with  the  direction  that  he  should  distribute  the  money to  those  voters  who  were  not  favourable  to  Swatantra  Party.  He  He  carried  out the  above  behest  and  he  was  asked  by  Rampat  Tewari  to  collect  some  persons of  village  Kamrawa  and  accordingly  he  collected  20  persons  at  about  2  P.M. who were  paid  at  the  rate  of  Rs.  2  per  head  and  were  asked  not  to  go  to  poll.
The  above  evidence  is  contrary  to  the  allegations  made  in  para  5(iv)  cf the  Recrimination  Petition  in  which  it  is  stated  that  money  was  paid  through Jamuna  Prasad  Tewari  and  not  Rampat  Tewari.
He  also  mentions  one  Nankau  (R.W.  33)  as  the  person  whom  he  met  when he  went  to  the  petitioner  with  the  letter  of  Jamuna  Prasad  Tewari.
This  Nankau  ia  an  imposter.  Reference  to  his  evidence  will  be  made  later. In  fact,  there  was  no  such  person  as  Nankau  in  the  employment  of  the  petitioner. P.W.  1  has  stated  that  he  aid  not  engage  any  'one  by  the  name  of  Nankau.
Jamuna  Prasad  Tewari  has  been  found  to  be  a  worker  of  Respondent  No.  1. The  story  given  by  Swarup  Chand  (R.W.  49)  has  been  concocted  to  support  the allegation  that  money  was  distributed  to  the  voters  by  Jamuna  Prasad  Tewari  at the  instance  of  the  petitioner.
Swarup  Chand  (R.W.  49)  belonged  to  the  category  of  those  witnesses  who  posed as  Swatantra  Party  workers  during  the  election  and  later  have  come  forward  to support  the  rival  candidate.
Not  a  single  voter  of  Kamarwa  has  been  produced  by  Respondent  No,  1  who are  alleged  to  have  been  paid  m'oney  by  Rampat  Tewari.

SKC  J(U)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  861
I  disbelieve  the  storv  of  Swarup  Chand  (R.W.  49)  that  monev  was  distributed to  voters  by  Jamuna  Prasad  Tewari  as  alleged  by  Respondent  No.  1.
192.  Ram  Saran  (R.W.  57)  is  again  one  of  those  witnesses  who  worked  for the  Swatanira  Party  at  the  time  of  election,  but  have  now  come  forward  to  give evidence  in  favour  of  the  rival  candidate.
He  says  that  he  is  a  relation  of  Jamuna  Prasad  Tewari  and  at  his  instance  he took  up  work  for  the  Swatantra  Partv  and  worked  with  one  Swarup  Chand (R.W.  49)  of  Kamrawa,  Lakshmi  of  Lnnawa  Dargah  and  Sham  Lai  son  of Jamuna  Prasad  Tewari.
He  further  says  that  he  took  a  letter  from  Jamuna  Prasad  Tewari  to  the netitloner.  On  17th  February  1962  he  was  directed  by  the  petitioner  to  see  Tribeni Pandev  and  tell  him  that  his  monev  was  deposited  with  him.  He  returned  to Khargoopur  and  handed  over  the  letter  to  Tribeni  Pandey.  The  next  morning Tribeni  Pandey  gave  him  RK. 300  to  be  taken  to  Jamuna  Prasad  Tewari,  which he  did.
i
(
He  says  that  out  of  this  money,  Jamuna  Parsad  Tewari  gave  Rs.  60  and  asked him  to  distribute  in  the  village  Imilia  to  the  labour  class  voters,  He  distributed the  amount  to  those  voters  whom  he  considered  to  be  the  leaders  and  asked  them that  they  should  refrain  from  going  to  the  poll  and  also  that  they  should  ask fathers  not  to  give  their  votes.
In  his  cross-examination  he  names  Ummed  Ali,  Nasrat,  Bhagwati,  Ram  Sukh, whom  he  paid  the  amount  separately  at  their  respective  houses.
None  of  the  above  persons  have  been  examined  by  Respondent  No.  1 to  corrobo- rate  the  story  of  this  witness  about  the  distribution  of  money.  According  to  him, he  spent  Rs.  24,  he  has  not  accounted  for  the  balance.  His  story  of  distribution  of money  to  the  above  named  persons  cannot  be  believed.
193.  Lakshmi  Narain  (R.W.  59)  says  that  he  took  up  the  work  of  the  Swatantra Partv  a  month  and  a  half  before  the  poll.  He  states  that  he  was  Riven  RK. 100/- by  Jamuna  Prasad  and  was  asked  to  distribute  the  amount  amongst  the  Tier- sons  of  his  village  viz.  Lonawa  Dargah,  so  that  they  may  not  go  to  cast  their votes.  He  says  that  he  distributed  the  sum  among'  the  persons  of  his  village. In  his  cross-examination  he  admits  that  on  the  dav  of  poll  he  was  in  his  house looking  after  his  own  cultivation.  He  could  not  influence  the  villagers  bv  his canvassing.  He  savs  that  he  found  that  people  of  his  village  were  not  amenable to  his .canvassing.  He  consulted  Jagannath,  Bhadur,  Patan,  Mian  Baksh,  Buddhu Khan  and  it  was  decided  that  if  money  was  given  they  would  agree  to  what  he •would  tell  them.
He  further  says  that  he  gave  the  money  to  the  above  named  persons  with whom  he  had  consultations.  They  were  also  voters.  They  took  Rs.  4/-  each". He  spent  onlv  Rs-  20/-.  there  is  no  account  of  the  balance.  He  had  stated  th"t there  were  1000  voters  m  village  Lonawa  Dareah.  Out  of  them  onlv  200  nr  250 voters  went  to  cast  their  votes.  If  his  storv  is  to  be  believed,  the  distribution  of money  only  to  five  voters  makes  no  sense.
Not  a  single  person  who  have  been  named  bv  him  has  been  examined  to  cor- roborate  the  alleged  distribution.  His  story  of  distribution  nf  money  is  flcatitious and  not  worth  considering.
All  the  above  named  witnesses  excenb  Ram  Bahadur  are  of  the  type  referred  to in  Lachhmnn  Sinfjh  Vs.  Harmrkash  Kaur—19  E.L.R.  417.  Tt  is  apparent  that they  have  been  tutored  to  depose  in  favour  of  Respondent  No.  1.
T  find  that  Respondent  No.  1  has  failed  to  substantiate  the  charge  of  bribery. I  hold  that  neither  the  petitioner  nor  Naurang  Singh  with  his  consent  distributed money  to  the  voters  to  prevent  them  from  casting  their  votes.
194.  Issue  No-  18: —
 
Tt  has  been  alleffed  in  para  5(v)  of  the  Recriminatory  Petition  that  at  the Polling  Station  of  Bhangha.  Baidaura  Bazar,  Kamrawan.  Bhapti,  Bhabni  Sarai and  Pachran  on the  date  of  poll  i.e.  19th February,  1962 Shri  Naurancr  Singh* nnd the  persons  mentioned  in  the  Annexure  2 with  the  consent  of  the  petitioner  Tiro- missed  to  pay  money  to  voters  who  promised  to  vote  for  the  petitioner  and  Shri Naurang  Singh  and  paid  the  amounts  after  it  was  ascertained  that  the  voters had 

gfi2  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [pAM  I I-
out  from  Swatantra  Party  camp  for  casting  votes.  These  voters  after  marking the  ballot  paper  in  the  compartments  would  come  out  with  ballot  paper  unfolded to  put  in  the  ballot  box  that  was  placed  in  the  Polling  Station  befoie  the  Presid- ing  Officer  where  agents  of  parties  were  present  and  it  could  thus  be  seen  for whom  the  voter  had  voted.  When  it  had  been  noted  that  the  voter  had  voted  for Swatantra  party,  money  was  paid  to  him  in  the  Swatantra  party  camp  at  these polling  stations.  The  name  of  the  persons  who  worked  these  arrangements  are eiven  polling-wise  in  Annexure  II.  These  persons  are  alleged  to  have  acted  with the  consent  of  the  petitioner  and  Shri  Naurang  Singh.
Above  allegations  are  denied  by  petitioner.
195.  Respondent  No.  1  has  examined  Ganga  Ram  (R.W.  54)  and  Narain (R.W.  55)  in  support  of  the  above  allegations.
Ganga  Ram  (R-W.  54)  says  that  some  12  days  before  the  date  of  poll,  at  the instance  of  Tribem  Pande  who  is  his  relation,  he  took  up  work  for  Swatantra Party.  On  the  date  of  poll  he  went  to  Baidarwa  Bazar  polling  station  where Rameshwar  Pradhan  was  working  as  agent  for  Swatantra  Party.  He  reached there  at  8  A.M. on  the  date  of  poll.  He  was  asked  by  Rameshwar  Pradhan  to bring  in  the  labour  class  voters,  He  should  be  given  Rs.  2/-  each  to  procure their  votes  for  Swatantra  party.  He  collected  10  or  15  such  persons  from  village Asdha.  Rameshwar  Pradhan  Is  said  to  have  explained  to  them  as  follows: —
"Ham  jab  manege  jab  wahan  turn  ko  parcha  mile  aur  uspar  nishan  lagao aur  khule  hue  lekar  aao  bakse  ke  pas  mor  kar  ke  chher  do  taki malum  hojaye  ki  ham  ko  vote  mila".
Those  voters  conceded  to  that  proposal.  Thereafter,  Rameshwar  Pradhan went  inside  the  polling  Station.  He  says  that  those  voters  used  to  go  to  cast  their votes  one  by  one  and  returned  to  the  Swatantra  party  camp  and  sat  there,  After they  had  cast  their  votes,  Rameshwar  Pradhan  came  out  of  the  polling  station and  paid  them  at  the  rate'  of  Rs.  2/.  He  names  the  voters  who  had  been  paid  in his  presence.
He  is  also  one  of  those  witnesses  who  are  alleged  to  have  worked  for  Swatan- tra  party  and  have  now  come  to  support  the  rival  candidate.
In  hlfl  cross-examination  he  admits  that  he  did  not  go  inside  the  polling  station upto  5  P.M.  He  admitted  that  he  had  cast  his  vote.  When  he  went  inside  the polling  station  to  cast  his  vote,  the  officer  there  gave  him  a  ballot  paper  for  the Assembly  and  told  him  to  go  into  the  enclosure,  mark  the  ballot  paper  there, fold  the  ballot  paper  and  then  come  out  and  put  the  ballot  paper  in  the  ballot box-  He  followed  the  same  procedure  when  he  cast  his  vote  for  the  Parliamen- tary  constituency.  He  admits  that  an  officer  was  sitting  at  the  place  where  the ballot  box  was  kept  and  he  was  seeing  that  every  thing  was  being  carried  out according  to  the  correct  way.
His  story  that  voters  were  paid  by  Rameshwar  Pradhan  after  verification  is false,
196,  The  plan  of  polling  booth  is  Illustrated  in  Annexure  1  of  the  Hand  Book for  Returning  Officers  Ex.  P.  160  at  P.  76.
It  will  be  clear  that  from  the  seating  arrangement  of  the  Polling  Officers  and the  placing  of  the  ballot  boxes,  that  it  was  impossible  for  any  voter  to  show  the ballot  paper  openly  to  polling  agent  of  any  candidate  before  actually  putting  the folded  ballot  pax^er  inside  the  ballot  box.  The  witness  admits  that  an  officer  was sitting  at  the  p±  ce  where  the  ballot  box  was  kept.  It  was  seen  that  every  thing was  being  carried  out  according  to  the  correct  way.
Shyam  Lai  (R.W.  58)'s  evidence  is  about  the  casting  of  the  votes  at  the Pachran  polling  station.  He  says  that  worked  for  the  Swatantra  party.  He directed  the  voters  that  if  they  voted  in  such  manner  that  after  putting  seal  on the  ballot  paper  they  could  bring  the  ballot  paper  unfolded  under  the  pretext  of getting  the  same  folded  so  that  he  could  be  able  to  see  the  markinc  and  on  finding that  they  voted  for  Swatantra  party,  Rs.  2/-  would  be  paid  to  each  voters.
He  further  says  that  he  used  to  co  inside  the  polling  booth  and  watched  the voters  casting  their  votes  and  after  5  or  6  voters  had  cast  their  votes,  he  used  to come  out  and  go  to  the  Swatantra  Party  camp  where  money  was  being  paid  to the  voters  who  had  voted.  In  this  manner  he  pot  the  votes  of  40  voters  recorded.

Sic  8(ii)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  863
197.  While  discussing  the  evidence  of  Ganga  Ram  (R.W.  54),  I  have  already mentioned  that  it  was  not  possible  under  any  circumstance  for  a  voter  to  show the  ballot  paper  after  marking  It  to  the  polling  agent  before  putting  it  in  the ballot  box.  The  story  of  this  witness  cannot  therefore  be  believed.  Moreover,  it ia  clear  from  his  cross-examination  that  he  was  a  polline  agent  of  Siraj  Ahmad He  had  filed  the  agency  form  at  8  A.M.,  on  the  date  of  poll.  His  father  also  knew that  he  was  to  work  as  polling  agent  for  Sirai  Ahmad.  He  was  questioned  "What polling  agency  work  you  did  for  Dr.  Siraj  Ahmad?
He  replied: —
"Hamne  wohan  koi  kam  nahin  kiya  khare  rahte  the  Main  Swatantra  party ka  kam  karta  tha".
Then  he  was  asked  whether  he  betrayed  Dr.  Siraj  Ahmad?  He  replied: —
"Diya.  Dhokha  Diya".
He  further  admits  in  his  cross-examination  that  there  were  7  polling  agents of  the  7  candidates  inside  the  polling  booth.  The  Presiding  Officer's  duty  includ- ed  the  task  of  seeing  that  the  secrecy  of  vote  was  maintained.  The  officers  pre- sent  in  the  polling  booth  were  vigilant  in  the  discharge  of  their  duties,
The  story  given  by  this  witness  about  the  manner  in  which  the  voting  was verified  by  him  is  not  only  absurd  but  is  false,
Respondent  No,  1  has  failed  to  prove  the  charge  of  alleged  corrupt  practicp. I  hold  that  neither  Naurang  Singh  nor  the  persons  mentioned  In  Annexure  IT with  the  consent  of  the  petitioner  promised  to  pay  money  to  the  voters  to  vote for  him,
198.  Issue  No.  19. In  para.  5(vi)  of  the  Recriminatory  Petition,  Respondent  No.  1  has  alleged that  on  19th  February  1962  the  petitioner  and  with  his  consent  Shri  Naurang Sineh,  Shri  Trilok  Singh,  Shri  Dashrath  and  Shri  Amar  Singh  working  respec- tively  at  polling  stations  Intiathok,  Aya,  and  Kalaina,  maintained  abundant  sup- plies  of  sweets,  biris,  cigarettes,  chabena  to  entertain  and  feed  the  voters  on  the day  of  poll.  The  voters  of  the  above  noted  polling  stations  were  offered  gratifi- cation  in  shape  of  food  and  sweets  on  the  day  of  poll  and  voters  were  entertained so  that  they  may  cast  their  votes  for  the  petitioner.
The  above  allegations  are  denied  by  the  petitioner.
Respondent  No.  1  has  examined  Salaru  (R.W,  26)  and  Bachchoo  Ram  (R.W.
31).
The  reading  of  paragraph  5(vl)  would  indicate  that  Naurang  Singh  and  Trilok Singh  worked  at  the  polling  station  Intiathok  while  Dashrath  worked  at  Aya  and Amar  Singh  at  Kalaina.
Salaru  (R.W.  26)  says  that  on  the  day  of  poll  at  Intiathok.  he  saw  that  Trilok Singh,  worker  of  the  petitioner  had  arranged  for  supply  of  Blris,  Bhoonja,  Cha- baina,  cigarettes  to  voters  at  the  Swatantra  Party  camp  and  Trilok  Singh  used to  say  to  the  voters  that  as  thev  were  being  fed  bv  the  petitioner  they  should bear  in  mind  to  vote  for  him  He  says  that  at  Kalaina  polling  station  also  the same  procedure  was  adopted  by  Amar  Singh,
,  It  is  clear  from  his  cross-examination  that  he  has  been  tutored.  At  Intiathok excepting  Trilok  Singh,  he  does  not  know  the  name  of  any  other  election  workers, Similarly  at  Kalaina  polling  station,  he  knows  only  Amar  Singh  and  no  body el"e.
~)  "T"""1*',
In  para,  1 he  has  stated  that  he  was  working  for  Dr,  Siraj  Ahmad  at  Intiathok, In  that  case  he  could  not  have  worked  for  the  petitioner.
His  replies  in  cross-examination  indicate  that  excepting  what  he  has  come  to depose  about  the  arrangement  of  refreshment  he  knows  nothing  else.  The  con- sent  of  the  petitioner  in  this  connection  has  not  been  proved  or  alleged.
199.  Bachchoo  Ram  (R.W.  31)  says  that  5  or  6  days  before  the  poll  he  went to  stay  with  Kantidhar  Shukla  of  Tariparsuhiya.  He  was  asked  by  him  to  go  to Gonda  and  see  the  petitioner  as  he  wanted  to  hire  bullock  carts.  He  was  also given  a  bundle  containing  blrls  and  cigarettes  etc.,  which  he  was  directed  to  hand over  to  one  Dashrath  at  Aya  polling  station.  He  handed  over  the  bundle  to P*shrath  who  used  to  distribute  blris  etc.  which  were  in  that  bundle.

864  T HE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  I I-
This  witness  is  also  of  the  .same  category  as  those  who  say  they  worked  for  the Swatantra  Party  but  have  now  come  to  give  evidence  for  the  rival  candidate. He  does  not  say  who  gave  the  bundle  containing  biris  for  refreshment.  No  link has  been  established  between  the  petitioner  with  the  distribution  of  biris  and snacks.  It  is  absurd  to  believe  that  these  materials  would  be  sent  from  Gonda. They  can  easily  be  purchased  locally.
From  his  cross-examination  it  is  clear  that  he  has  no  idea  about  the  location  of polling  station  Aya.  He  does  not  even  remember  whether  he  delivered  the  bundle at  the  camp  on  the  same  day  when  he  returned  from  Gonda  or  the  next  day  or  the day  after,
Narain  Dandekar  (P,W.  1)  in  paras  104  and  105  of  his  evidence  has  denied  that any  refreshment  was  provided  to  the  voters.
Naurang  Singh  (P.W.  15)  in  para  9  also  denied  that  there  were  any  arrangement for  distribution  of  sweets,  Blrls  or  cigarettes  or  chabalna  to  voters  to  cast  their votes  in  favour  of  the  petitioner  or  in  his  own  favour.  The  evidence  of  Respondent No.  l's  witnesses  examined  in  support  of  this  charge  must  be  rejected  as  unreliable.
I  hold  that  the  petitioner  or  with  his  consent  Trilok  Singh,  Dashrath  and  Amar Singh  did  not  feed  the  voters  to  induce  them  to  cast  votes  for  him,
200.  Issue  No.  20.—In  para  5(vii)  of  the  Recriminatory  Petition,  it  Is  alleged that  Naurang  Singh  with  the  consent  of  the  petitioner  through  his  workers  and servant  Shri  Autar  Singh  provided  liquor  to  the  scheduled  caste  votert  of  the  vill- ages  Haral-jhuman,  Basantpur  Raja,  Bhawanipur  and  Intiathok  forming  part  of the  constituency  on  the  night  between  February  18/19th,  1962  i.e.,  the  night  before the  day  of  the  poll,  in  order  to  induce  those  voters  to  vote  for  the  Swatantra  Can- didates  and  thereby  obtained  the  votes  of  such  of  the  electors  who  were  of  the scheduled  caste.
Respondent  No.  1  has  examined  a  solitary  witness  Salaru  (R.W.  26).  He  says that  he  was  employed  by  Siraj  Ahmad  on  Rs.  3 /-  per  day  to  work  for  him  and  the petitioner.  On  the  day  of  poll  he  went  to  Aya  polling  station  at  about  3  P.M.  and saw  the  bullock  cart  of  Biyasat  Khan  of  village  Naushara  bringing  voters  to Swatantra  Party  camp  from  different  places.  In  the  evening  preceedlng  the  day  of poll  he  was  asked  by  one  Autar  Singh  to  accompany  him  to  the  residence  of  Amar Singh  and  to  take  6  bottles  of  liquor  for  being  supplied  to  scheduled  caste  voters who  were  there.  Autar  Singh  informed  him  that  these  6 bottles  Of  liquor  were  sent by  Sri  Dandekar  for  that  purpose.  He  took  the  bottle  of  liquor  Lo  Amar  Singh's residence  and  there  some  15  to  20  Koris  and  Khatiks  had  assembled  who  were entertained  and  who  were  asked  to  go  to  the  polling  station  and  vote  for Mr.  Dandekar.  They  were  also  told  that  in  case  Mr.  Dandekar  won  the  election they  would  be  further  entertained  with  liquor.
201.  Salaru  says  he  was  engaged  for  a  short  period  by  Siraj  Ahmad  to  work for  him  and  the  petitioner.  There  is  nothing  in  his  evidence  to  connect  the  peti- tioner  or  Naurang  Singh  with  the  distribution  of  liquor.
He  has  no  personal  knowledge  whether  the  liquor  was  supplied  by  the  peti- tioner.  He  says  that  it  was  Amar  Singh,  who  told  him  that  these  bottles  were sent  by  the  petitioner  for  the  purpose  of  distribution.
In  para  7  of  his  cross-examination  he  says  that  Amar  Singh,  is  a  resident  of Hindu  Nagar  village,  and  that  the  Khatiks  and  Koris  who  were  entertained  with liquor  were  also  residents  of  that  village.
In  para  5(vii)  of  the  Recriminatory  Petition,  Hindu  Nagar  village  is  not  in  the list  of  villages  where  the  scheduled  caste  voters  are  alleged  to  have  been  enter- tained  with  liquor.
The  evidence  of  Salaru  (R.W.  26)  must  therefore,  be  rejected.
Respondent  No-  1 has  not  substantiated  the  charge  of  the  alleged  currupt  prac- tice  of  providing  liquor  to  the  scheduled  caste  voters  to  induce  them  to  vote  for the  petitioner.  The  finding  on  this  issue  is  in  the  negative.
202.  Issue  No.  21.
 
The  allegations  of  corrupt  practice  of  undue  influence  as  denned  in  section 123(2)  of  the  Representation  of  People  Act  is  stated  in  paragraph  6  of  the  Re- criminatory  Petition.  It  is  alleged  that  corrupt  practice  under  section  123(21  of the  Representation  of  People  Act  was  committed  by  the  petitioner  and  with  his

SEC.  3(il)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  865
consent  and  approval  by  Raja  Raghvendra  Pratap  Singh  and  also  by  other  per- sons  throughout  Mankapur  Assembly  constituency.  Names  oi'  these  persons  and polling  stations  are  mentioned  in  Annexure  HI.  Paragraphs  7,  S  and  9  ot  the Recriminatory  Petition  are  merely  descriptive  of  the  Representation  of  People  Act.
In  para  10  it  is  alleged  that  the  petitioner  through  his  friends  and  associates Raja  Kaghvendra  Pratap  Singh,  Shri  Baldeo  Singh,  Shri  Naurang  Singh,  Shri Ragho  Ram  Pande  and  Shri  Ram  Garib,  had  created  a  reign  of  terror  against which  an  appeal  was  made  to  the  Prime  Minister  through  congress  workers.
In  para  11, it  is  alleged  that  if  any  elector  would  dare  to  oppose  the  candida- ture  of  the  petitioner  or  Raja  Sahib,  his  life,  property  and  existence  in  the  locality would  be  made  impossible.
The  above  allegations  of  undue  influence  are  denied  by  the  petitioner-
203.  Respondent  No.  1  has  examined  Sheo  Prasad  (R.W.  30),  Jamuna  Prasad (R.W.  32),  Nankau  (R.W.  33),  Raghuvansh  (R.W.  48),  Autar  (R.W.  50),  Ram Charitar  (R.W.  51),  Ram  Shankar  (R.W.  52),  Sukh  Lai  (R.W.  53),  Narain  (R.W. 55),  Ram  Chandra  Misra  (R.W.  56)  and  Tripurari  Jaitly  (R.W.  60).
Sheo  Prasad  (R.W.  30)  has  deposed  that  he  worked  for  congress  till  one  day prior  to  the  date  of  poll.  No  further  says  that  whenever  meetings  for  congress party  were  held  all  persons  of  his  v;'lage  could  not  attend  the  meeting  being afraid  of  Ragho  Ram  Pandey.
,
In  his  cross-examination  he  admits  that  during  the  election  of  1962  there  were two  or  three  congress  meetings  in  his  village  Bahlolpur.  These  meetings  were arranged  by  one  Girja  Shanker.  He  attended  all  the  meetings  of  the  congress. These  two  or  three  meetings  were  held  during  a  period  of  one  month  before  the poll.  In  these  meetings  Ragho  Ram  Pandey  was  not  present.  He  also  admits  that during  the  days  when  the  congress  meetings  were  held  in  his  village  Ragho  Ram Pandey  was  not  present.
It  is,  thus  clear  that  his  version  in  his  examination-in-chief  that  ali  the  persons of  his  village  could  not  attend  the  meeting  being  afraid  of  Ragho  Ram  Pandey  is : false.
I
204.  Jamuna  Prasad  (R.W.  32)  is  a  resident  of  Gaurawa  Kanungo,  which  is  in Gonda  East  Assembly  constituency.  Its  polling  station  was  Siha  Gaon.  He  depos- ed  that  Ragho  Ram  is  a  "sarkash"  man  in  that  locality  and  his  associates  are Gundas  and  Lapharies.  Due  to  his  highhandedness  the  election  result  had  consi- derably  affected  as  his  associates  used  to  threaten  the  voters  to  vote  for  him  as well  as  for  Mr.  Dandekar.
,
\
The  polling  station  of  Siha  Gaon  is  not  mentioned  in  Annexure  III  filed  by Respondent  No.  1.
Evidence  of  Jamuna  Prasad  (R.W.  32)  is  to  ba  ignored.
205.  Nankau  (R.W.  33)  was  examined  by  Respondent  No.  1.  He  has  deposed to  the  allegations  not  only  on  this  issue  but  also  in  respect  of  allegations  In  issues 22,  26  and  27.  He  has  deposed  that  he  was  an  employee  of  Ragho  Ram  Pandey  and had  worked  at  his  farm.  He  was  directed  by  him  to  serve  as  a  peon  to  the  peti- tioner.  He,  therefore,  went  to  the  petitioner  at  the  Kothi  of  Mohan  Lai,  Vakil, Where  petitioner  was  staying  and  he  was  engaged  by  him  on  Rs.  50  per  month with  board.
|
[
He says  that  some  10 or  12 days  before  the  poll  he  went  to  Mankapur  along  with the  petitioner  where  he  stayed  for  some  time  and  while  coming  back  to  Gonda  he passed  through  Motiganj.  Motiganj  falls  in  Mankapur  Assembly  constituency. When  the  petitioner  stopped  there  he  found  congress  flags  and  posters  and  labels in  Motiganj.  Finding  that  there  was  no  sign  of  Swatantra  Party  symbol  and  feel- ing  that  Motiganj  fell  in  the  constituency  of  Raja  of  Mankapur  where  Swatantra party  had  no  force,  he  wrote  a  letter  for  Raja  Sahib  Mankapur  and  sent  him  with it  to  Mankapur.  He  handed  over  the  letter  and  Raja  Sahib  after  reading  it  called his  Sipahi  Ambika  and  told  him  that  Motiganj  was  going  against  him.  Ambika assured  Raja  Sahib  that  he  would  be  going  to  Motiganj  along  with  some  persons and  will  set  right  the  persons  responsible  for  this,
He  further  says  that  Ambika  reached  Motiganj  along  with  15  persons  He names  Chandrabhan,  Loknath,  Sheshdutt,  Ishdutt.  Mahadeo.  The  names  of  the remaining  persons  he  does  not  know.

866  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [FART  I I-
Thc  above  evidence  was  objected  to  by  the  counsel  for  the  petitioner  on  the ground  that  name  oi  Ambika  Prasad  is  not  mentioned  in  Annexure  III  nor  the names  of  the  persons  who  arc  alleged  to  have  accompanied  him  to  Motiganj.  On this  objection  I  passed  the  following  order: — ,
"Annexure  No.  Ill  gives  the  name  of  polling  station  and  the  name  of  agents and  workers,  Motiganj  is  in  Vidyanagar  polling  station,  but  none  of the  persons  mentioned  by  this  witness  are  named  in  Annexure  No,  III in  respect  of  polling  station  Vidyanagar.  The  evidence  of  this  witness in  the  above  respect  is  therefore  disallowed."
206.  Evidence  of  Nankau  (R.W.  33)  has  been  objected  to  by  the  petitioner's counsel  on  the  ground  that  Naiikau  is  an  imposter  and  his  entire  evidence  should, therefore,  be  rejected  as  tainted  and  false.
Respondent  No.  1 had  filed  list  of  witnesses  in  recrimination  on  various  dates as  given  below: —
List  No.  1 was  filed  on  2nd  December,  1963. Additional  List  No.  2  on  18th  January,  1964. Additional  List  No.  3  on  22nd  January,  1964. Consolidated  List  No.  4  on  23rd  January,  1964  (This  list  supersedes  the  pre- vious  list).  ,
)
Additional  List  No.  5  on  5th  February,  1964  (relating  to  Annexure  IX).
Nankau  was  examined  on  27th  January,  1964  as  (R.W.  33).  He  gave  his father's  name  as  Radhika  Prasad.  He  was  re-called  on  3rd  April  1964  when  he stated  that  he  was  called  by  another  name  i.e.  Shyamadhar.  He  says  that  "in writing"  whenever  his  name  is  taken  down  he  is  mentioned  as  Shyamadhar, but  in  the  village  people  call  him  Nankau.  He  admits  that  during  the  recording of  his  deposition  before  the  Tribunal,  he  did  not  mention  his  name  as  Shyama- dhar.  The  reason  according  to  him  is  that  he  got  himself  employed  by  the petitioner  under  the  name  "Nankau",  but  he  did  not  inform  him  that  he  also had  another  name  "Shyamadhar".  He  says  that  In  the  "kutumb"  register  his name  is  recorded  as  Shyamadhar.  His  name  as  Nankau  is  not  recorded  anywhere in  any  Government  paper.  He  also  admits  that  he  was  convicted  under  section 411  I.P.C.  In  the  court  of  Magistrate  I  Class  Gonda.  He  was  prosecuted  in  the name  of  Shyamadhar.  He  says  that  he  had  informed  Pandeyji  about  his  convic- tion  in  the  name  of  Shyamadhar  but  he  did  not  mention  about  this  to  the petitioner.  He  says  he  concealed  it  from  him  because  he  was  afraid  that  he might  not  get  the  employment.
The  above  statement  is  obviously  false  as  he  says  that  he  went  to  Sri Dandekar  for  service  about  20  days  before  he  was  convicted,  although  the  prose- cution  was  pending.
207.  The  first  list  of  Respondent  No.  l's  witnesses  did  not  contain  the  name  of Shyamadhar  or  Nankau.  The  second  list  contained  the  name  of  Shyamadhar  as No.  17  in  the  list.  The  third  list  which  was  an  additional  list  to  Lists  1  and  2 contained  the  name  of  Nankau  at  No.  13.  This  clearly  indicates  that  Shyamadhar in  List  No.  2  and  Nankau  in  List  No.  3  were  different  persons,  List  No,  4  which was  a  consolidated  list  of  all  the  three  lists  omitted  the  name  of  Shyamadhar but  the  name  of  Nankau  remained  at  No.  13 in  the  list.  The  witness  Shyamadhar was  thus  given  up  when  the  list  was  consolidated  in  List  No, 4.
It  appears  that  subsequently  Respondent  No.  1  wanted  to  examine  Shyama- dhar  as  a  witness  but  as  he  was  given  up,  Shyamadhar  was  produced  and examined  under  the  name  of  Nankau  on  27th  January  1964.
In  the  first  list  Shyamadhar  was  given  up  because  he  was  convicted  for  a criminal  offence.  It  is  thus  clear  that  Nankau  (R.W.  33)  was  an  imposter Actually  Shyamadhar  was  examined  instead.
R.W.  33's  story  that  he  was  employed  as  a  peon  by  the  petitioner  at  the instance  of  Ragho  Ram  Pandey  is  palpably  false  and  so  also  all  that  he  has deposed  in  respect  of  other  incidents  m  association  with  the  petitioner  or  in connection  with  the  election,
I,  therefore,  reject  the  entire  evidence  of  Nankau  (R.W.  33).
 
208.  Raghuvansh  (R.W.  48)  whose  evidence  has  been  disbelieved  in  connec- tion  with  Issue  No.  14,  has  deposed  that  Keenu  Singh,  Sheo  Raj  Pande,  Surya


Prasad,  Ajodhya,  and  Swami  Nath  Tewari  of  Kauria  Bazar  used  to  work  for Swatantra  Party.  These  persons  are  "Zabardast"  and  "Badmash".  They  used to  threaten  the  voters  openly  that  as  they  were  supporters  of  Swatantra  Party, anybody  who  dared  to  support  the  candidature  of  congress  candidate  or  J an Sanyh  candidate  and  oppose  the  candidature  of  Swatantra  Party  candidate,  he would  be  severely  dealt  with  by  them,
This  witness  does  not  mention  the  time  of  the  incident;  neither  any  time  has been  mentioned  in  paragraph  11  of  the  Recriminatory  Petition.
In  para  13  of  his  cross-examination  he  says  that  Swaminath  Tewari,  Sheo  Raj Pande,  Ajodhya  Praaad  and  Suraj  P r a s ad  were  the  workers  of  Capt,  Ram  Garib.
He  does  not  prove  the  consent  of  t he  petitioner.
209,  A u t ar  (R.W.  50)  is  a  resident  of  village  Sabarpur,  which  was  a  polling station  also.  He  says  that  on  the  day  of  poll  he  along  with  Ghurey  Chamar, Dharkhan  Chamar,  Gajadhar  Chamar  and  Gouri  Ahir  were  going  to  the  polling station  to  cast  their  votes.  In  the  way  they  met  Bans  Gopai  and  Abinash  Chandra Tewari,  They  were  workers  of  Raja  Sahib  Mankapur.  When  they  stated  that they  were  to  support  the  congress  candidate,  they  threatened  them  with  dire  conse- quences  and  that  they  would  be  beaten  if  they  dfoi  not  support  the  Swatuntra  Party.
In  his  cross-examination  he  says  that  they  met  Bans  Gopal  and  Abinash  Tewari at  the  crossing  near  t he  house  of  Ram  P h er  Ahir  in  the  village.  Bans  Gopal  and Abinash  Tewari  were  standing  there  but  he  could  not  say  why  they  were standing  and  that  they  did  not  beat  him.  He  admits  that  he  and  nis  companion did  go  to  cast  their  votes.  In  view  of  t he  above  admission,  his  story  about  t he t h r e at  given  by  Bansgopal  and  Abinash  Tewari  is  obviously  false.
Further,  consent  of  the  petitioner  to  the  alleged  acts  of  Bans  Gopal  and Abinash  Tewari  has  not  been  proved,
210,  Ram  Charitar  (R.W.  51)  is  a  resident  of  village  Rjampur,  which  is  in Vidyanagar  polling  station.  He  says  that  some  10  days  before  the  date  of  poll, 15  or  20  persons  came  In  Motiganj  Bazar.  They  threatened  the  people  that  they should  not  oppose  Raja  of  Mankapur  and  if  they  dared  to  do  that,  they  would  be beaten.  He  says  that  thev  were  armed  with  pharsa  and  lathis  and  created  reign of  terror.  They  pulled  down  the  congress  flats  and  removed  congress  posters which  were  found  in  Motiganj  Bazar.  He  names  Madho  Tewari.  Lakhan  Tewari, Sadhoo  Singh,  Nankau,  Ambika  PahaJwan  out  of  those  15  or  20  persons  who  had come  in  a  car.  Annexure  III  does  not  contain  the  name  of  Ambika  Prasad.  The story  of  pulling  down  the  congress  flags  and  removing  congress  posters  has  not 1 :'cii  mentioned  in  the  Recriminatory  Petition.  He  names  Nankau  also  among  the 15  or  20  persons  wh'o  had  come  in  t he  car.  Nankau  (R.W.  33)  is  an  imposter. Actually  it  was  Shyamadhar  who  was  examined  as  Nankau.  This  witness,  there- fore,  tells  a  lie  when  he  includes  Nankau  in  t he  party.  No  report  to  t he  police •was  m a de  by  the  witness.  He  is  just  a  chance  witness.  He  does  not  live  in Motiganj  but  went  there  fnr  a  str'oll.  The  persons  named  by  him  did  not  give him  any  threat.  He  is  obviously  a  got  up  witness  and  no  reliance  can  be  placed on  his  evidence.  Moreover,  consent  or  connection  with  the  petitioner  has  not been  proved.
211,  Ram  Shanker  fR.W.  52)  is  a  resident  of  village  Khamaria  Buzurg,  He says  that  he  worked  for  Raiq  Sahib  of  Mankapur  in  the  last  general  election.  On the  day  of  poll  he  was  at  the  nolling  station  Patijia  Buzurg,  where  P a r m e s h w ar Prasad,  Ram  Narain  and  Ram  Kewal  Swatantra  party  workers  were  presr  t.  He says  that  he  kept  himself  busy  in  propagating  that  the  voters  should  vote  for Swntantra  party  otherwise  they  would  meet  with  dire  conseau^tices.  He  also says  that  he  told  the  voters  to  rast  their  votes  in  such  a  way  that  after  affixing mark  on  the  ballot  paper  thev  should  bring  the  ballot  paper  unfolded  upto  the ballot  box  so  t h at  it  could  be  seen  by  the  Swatantra  party  agents.
This  witness  poses  to  be  a  worker  of  Raja  Sahib  of  Mankapur  and  bas  now appeared  as  witness  for  the  viv'I  ' undifite.  His  name  has  not  been  mentioned in  Annexure  III.  JTe  knows  nothing  about  the  election  except  what  he  has  come to  state.  He  cannot  name  the  voters  to  whom  he  pave  the  threat.  It  is  obvious that  he  never  worked  for  Raja  Sahib  Mankapur  in  the  last  election.
Satya  Narian  P a n de  (P.  W.  17)  has  stated  t h at  Ram  Shanker  (R.  W.  52)  was a  worker  of  Respondent  No,  1  in  the  election.

868  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  II-,
It  is  impossible  ti>  believe  that  Liny  pulling  agent  could  have  seen  the  ballot paper  alter  they  were  marked  by  the  VJters  and  before  they  were  put  inside  the ballot  box.  The  story  given  out  by  this  witness  is  absurd.
Consent  or  connection  of  the  petitioner  has  not  been  proved  by  this  witness. He  says  that  he  worked  for  Raja  Sahib  Mankapur  in  the  last  general  election.
212.  Sukh  Lai  (R.W.  53)  is  a  resident  of  village  Durgapur.  It  is  within Ranijot  polling  station.  He  says  that  on  the  day  of  poll  he  went  to  Ranijot polling  Station.  There  he  saw  Mshadeo,  Janki  and  Ganga  Ram  working  for  the Swatantra  Party.  He  says  Lhat  these  persons  u^ed  to  direct  the  voters  they should  vote  for  Swatantra  party  candiate  and  should  put  their  votes  in  the  ballot box  only,  when  it  is  noted  by  the  Swatantra  Party  agents  inside  the  booth.  He makes  a  general  statement  that  Ranijot  fell  in  the  Zammdari  of  Raja  Sahib  of Mankapur  who  was  influential  because  of  the  fact  that  the  public  was  terror- stricken  as  Raja  Sahib  used  to  get  those  persons  beaten,  their  houses  burnt  in case  they  opposed  him  on  any  point.
In  his  cross-examination  he  admits  that  no  house  of  any  person  of  Ranijot  was burnt  by  Raja  Sahib  of  Mankapur  or  by  his  men.  He  was  polling  agent  of Devendra  Nath  Misra  at  the  polling  station  Bandrahi  whkh  is  3  miles  from Ranijot  polling  station.  Hp  wai  at  Bandrahi  polling  station  from  10  A.M.  to 12  noon.  Then  he  contradicts  himself  when  he  says  that  he  went  to  Ranijot  and was  there  from  11-30  to  12  noon,  as  he  was  sent  there  by  Devendra  Nath  Misra.
His  explanation  about  going  to  Ranijot  on  the  asking  of  Devendra  Nath  Misra cannot  be  accepted  specially  when  no  report  to  the  Presiding  Officer  is  alleged or  proved.  It  is  obvious  that  he  never  went  to  Ranijot  polling  station.
Connection  of  the  petitioner  has  not  been  proved.
1U3.  Km  Chandra  Misra  (R.W.  56)  is  a  Munim  of  a  shop  belonging  to  Res- pondent  No.  1  at  Kanpur.  He  says  that  5  or  6  days  before  the  date  of  poll  he was  deputed  at  Motiganj  in  the  election  work.  There  he  found  that  Swatantra Party  condidatc  had  terrorized  the  public.  On  the  dav  of  poll  he  went  1o Vidyanagar  polling  Station.  At  mid  day  he  saw  Sadhu  Singh.  Brinda  Singh workers  of  Swatantra  party  threatening  the  women  voters  at  a  distance  at  some 20  yards  from  the  polling  station.  The  above  incident  was  witnessed  bv  Shco Raj  Singh  and  others.  He  says  that  an  application  was  made  by  Sheo  Raj  Singh to  the  Presiding  Officer  at  that  polling  station.  Mundar  Singh  Swatantra  perty worker  threatened  to  beat  congre.-^  worker  and  agent  named  Bhola  Nath  Shukla. A  written  report  was  prepared  in  respect  of  this  incident  which  was  written  by Sheo  Rai  Singh  and  signed  by  him,  The  original  of  this  report  is  marked Ex.R,202A.
On  the  day  of  poll  at  about  7 P.M.  after  the  close  of  the  poll,  Dargahi  Informed him  that  Sadhhoo  Singh,  Ram  Balak  Singh,  Bijai  Pratap  Singh,  Hawaldar  Singh, Ram  Nath  Singh  and  Lai  Singh  had  destroyed  his  Matar  field  and  had  threatened him  that  as  he  had  worked  for  congress,  he  would  be  beaten  and  will  be  forced to  HO to  Pakistan.  lie  himself  was  threatened  by  Sadhoo  Singh  as  follows:—
"Ham  tumharc  patte  ukhar  denge  aur  tumhare  munh  men  kutte  mutwa dengc  aur  jan  se  mardaienge."
He  sent  a  telegram  at  Balrampur  office  where  men  of  Ham  Ratan  Gupta  used to  live.  He  sent  telegrams  to  the  District  Congress  Committee,  Gonda,  District Magistrate,  Gonda,  and  to  the  Superintendent  of  Police,  Gonda.  The  contents of  telegram  is  Ex.R. 202/B.  At  about  11  P.M.  police  force  arrived  at  Motiganj and  some  arrests  were  made.,  Bijai  Pratap  Singh,  Swatantra  partv  worker  was arrested  there.  A  written  report  was  prepared  in  connection  with  the  incident of  Dargahi  which  is  Ex.R.202/C.
In  his  cross-examination  he  savs  that  he  does  not  know  whether  the  Police Officer  concerned  made  any  enquiry  about  the  matter  complained  of,  but  he admits  that  no  case  was  launched  as  a  resuli  o-r  the  report  Ex.20'2/C,  neither does  he  know  whether  anv  enquiry  was  made  about  this  report.
He  admits  that  he  did  not  make  any  report  to  the  Presiding  Officer  of  the Polling  Station  about  th^  threat  given  to  the  women  voters.  Although  the women  voters  were  escorted  by  Naurang  Prasad,  Ramdhir  Singh,  they  did  not make  any  report  to  the  Presiding  Officer  of  the  polling  station.

SEC.  3(H)]  TtlE  GAZETTE  OF  INDIA  EXTRAORDINARY  86?
Respondent  No.  1 has  not  examined  Dargalii  or  the  workers  who  were  threatened in  respect  of  the  first  position  Ex.  R,  202A.
214.  Sarju  Prasad  (R.W.  5),  Record-Keeper  Police  Office,  Gonda  was  summoned with  First  Information  Reports.  He  produced  the  application  by  Ram  Chandra Misra  (R.W.  56)  in  charge  of  Congress  Office  Motiganj  on  the  basis  of  which  a First  Information  Report  was  prepared.  He  produced  the  extracts  Ex,  R.  200, 201, 202,  204.  Ex.  R.  202  is  a  telegram  attached  to  it  and  an  application  of  Ram Chandra  Misra,
In  his  cross-examination  he  stated  that  he  does  not  know  who  made  the investigation  and  what  was  the  result  of.  that  investigation.  An  application  made by  Rama  Nath  Misra  (R.W.  1)  was  also  produced  by  this  witness  but  he  could  not say  whether  any  investigation  was  made  in  this  connection  or  what  was  the  result of  the  investigation,  if  any.
It  is  clear  that  no  action  was  taken  on  the  complaints  made  by  Ram  Chandra Misra  (R.W.  56)  in  respect  of  the  incidents  about  whidi  he  has  deposed.  It  can reasonably  be  inferred  that  reports  made  by  Ram  Chandra  Misra  implicating  the Swatantra  party  workers  must  have  been  false.  No  connection  with  the  petitioner has  been  proved.
Narain  Dandekar  (P.W.  1)  in  para  106  to  108  has  denied  that  any  undue Influence  by  Raja  Sahib  was  exercised  or  that  he  gave  consent.
21,1.  Tripurari  Jaitly  (R.W,  60)  deposed  that  on  the  1st  of  February  1962  when the  Prime  Minister  visited  Gonda  about  150  congress  workers  with  congress  flags were  coming  from  the  side  of  Sadullanagar.  When  they  were  near  Raja  Sahib's kothi,  they  were  attacked  by  Baldeo  Singh,  Sukh  Pyare  Singh  and  Ambika  with a  group  of  about  125  persons  with  lathis.  Several  workers  were  beaten  and congress  flags  were  snatched.  A  group  of  30  or  40  persons  under  the  leadership of  Sukhpyare  Singh  removed  those  flags  and  planted  the  flag  of  Swatantra  party. When  the  witness  tried  to  prevent  them  from  doing  so,  they  threatened  to  beat him.  He  further  says  that  while  he  was  proceeding  in  a  jeep  from  Balrampur house  In  Mankapur  a  jeep  ol  Swatantra  party  coming  from  the  opposite  side collided  with  his  jeep  near  Motiganj.  His  jeep  was  thrown  in  the  khud,  while the  Swatantra  party  jeep  returned  to  Mankapur.  Two  persons  accompanied  by him  became  unconscious.  They  were  brought  to  the  Gonda  Hospital.  He  sent a  report  from  the  hospital  about  this  incident  to  the  Police.  Sarju  Prasad  Sri- vastava  (R.W.  5)  deposed  that  no  action  was  taken  on  this  report  as  it  was  r.ot  a cognizable  offence.
The  evidence  of  Tripurari  Jaitly  (R.W,  60)  about  the  accident  or  about  the clash  between  the  congress  arid  the  Swatantra  party  workers  when  the  Prime Minister  came  to  Gonda  is  of  no  consequence.
216.  It  was  stressed  on  behalf  of  the  petitioner  in  the  course  of  the  argument "that  the  Respondent  No.  l's  witnesses  had  not  proved  consent  of  the  petitioner  in respect  of  the  alleged  undue  Influence  and  threat  given  out  by  the  Swatantra party  workers  to  the  voters  or  congress  workers.  In  reply  to  the  above  contention the  learned  counsel  for  Respondent  No.  1 on  the  authority  of  a  decision  in  Bhagwan Datt  Shastri  Vs. Ram  Karan  Gupta  and  others  and  Bhagwan  Datt  Shasiri  Vs.  Badri Narayan  Singh  and  others—11  EX.R.  448  submitted  that  the  petitioner  will  be guilty  for  the  acts  committed  by  his  workers  and  agents  when  it  is  established that  they  gave  threats  to  the  voters.
In  11 E.L.R.  448, the  finding  of  the  Tribunal  held  on  the  facts  and  circumstances of  the  case  that  the  conveying  of  voters  must  have  been  done  with  the  connivance of  the  Respondent  and  that  he  was  guilty  of  corrupt  practice  under  section  123(6) of  the  Representation  of  People  Act  1951  was  accepted  by  the  Supreme  Court with  the  following: —
Obiter—"The  questions  as  to  the  limits  of  the  doctrine  of  agency  in  election matters  and  the  exact  scope  and  effect  of  the  statutory  definition  of 'agent'  may  require  to  be  carefully  considered  by  the  court  when they  become  necessary  In  a  proper  case  as  these  are  important questions  bearing  on  the  whole  structure  of  elections  run  on  party lines".
The  rulings  reported  in  11  E.L.R.  448  has  no  application  to  the  law  after  the amendment  of  1956  and  1061  in  the  JtepresenUtion  of  People's  Act  in  its  relevant provisions.

87O  X*IE  GAZETTE  OF  INDIA  EXTRAORDINARY  [ftWT  I I-
mrF£?e?  t he  o ld  A ct  as  tt  s t o od  to  1951>  a  reference  to  section  100(2)(b)  and  section iUO(J)(a)  would  show  that  the  language  used  was: —
"By  a  candidate  or  his  agent,  or  by  any  other  person  with  the  connivance nt  the  Candidate  or  his  Agent".
After  amendment  of  1956  the  changes  In  Section  100  are  noticeable  In  this respect  in  paragraph  100(l)(b)  and  (d)  (ii)  which  reads: —
"By  a  returned  candidate  or  his  Election  Agent  or  by  any  other  person  with the  consent  of  a  returned  candidate  or  his  Election  Agent.
t, , - J Lt he  A ct  a m e n d ed  uPto  1 9 61  ^  flnd  to  Section  100(l)(b)  the  same  language-
"By  a  returned  candidate  or  his  Election  Agent  or  by  any  other  person with  the  consent  of  a  returned  candidate  or  his  Election  Agent."
From  the  above  it  will  be  seen  that  the  Legislature  has  clearly  brought  about  a change  in  the  law  in  1956  and  1961 from  what  It  was  in  this  respect  In 1951.
In  Dharanidhar  Mohapatra  Vs.  Pradipta  Kishore  Das  and  others—-17  ELR  427 It  has  been  held  as  follows:—
"  '
"Under  section  100(1)  clauses  (b)  and  (d)  (ii)  of  the  Representation  of  the People  Act,  1951.  as  amended  In  1956,  where  a  corrupt  practice  has not  been  committed  by  the  candidate  himself  or  his  Election  Agent but  by  any  other  person  (including  an  agent  other  than  an  Election Agent)  It  must  be  proved  that  that  person  had  acted  with  the  consent of  the  candidate  of  his  election  agent".
See  also  17  E.L.R.  373  and  18  E.L.R.  209.
I  find  that  Respondent  No.  1  has  failed  to  substantiate  the  charge  of  undue influence  levelled  against  the  petitioner.  Respondent  No,  1  has  failed  to  prove any  connection  or  consent  with  the  petitioner.
I  flnd  the  issue  in  the  negative.
217,  Issue  No.  22.—The  allegations  of  corrupt  practices  In  respect  of  this  issue are  contained  in  paragraphs  18,  19,  20  and  21  of  the  Recriminatory  Petition,
The  petitioner  denied  the  allegations  that  he  or  his  workers  of  agent  canvassed in  support  for  him  on  the  ground  of  caste  or  community.
Respondent  No.  1 has  examined  Nankau  (R.W.  33),  Samokhan  (R.W.  34),  Brahma Dutt  (R.W,  36).  Balbhaddar  Prasad  (R.W  37),  Ram  Kumar  R.W.  38  and  Tripurarl Jaitly  (R.W.  60).
Evidence  of  Nankau  (R.W.  33)  must  be  rejected  in  toto  for  the  reasons  given in  paragraphs  206  and  207  of  the  judgment.
In  paragraph  15  of  his  deposition,  (R.W.  33)  stated  that  although  he  did  not know  how  many  Brahmin  houses  were  there  In  Maskinwa,  but  he  knew  that  in the  meeting  alleged  to  have  been  addressed  by  the  petitioner,  the  majority  of  the persons  were  Brahmins.
He  came  to  know  the  Brahmins  in  this  way  that  it  was  given  out  in  the  speech— 'those  who  are  Brahmins  please  raise  their  hands"  and  they  raised  their  hands. His  evidence  shows  that  the  meeting  was  attended  by  both  Brahmins  and  non- Brahmins.
It  is  Impossible  to  believe  that  the  petitioner  would  indulge  in  such  conduct thereby' alienating  sympathies  of  the  non-Brahmin  voters.
Paragraph  18  of  the  Recriminatory  Petition  does  not  contain  the  material particulars  regarding  time  and  place.  As  such  it  is  too  vague.  This  issue  has  to be  limited  to  the  contents  of  paragraphs  19, 20 and  21 of  the  Recriminatory  Petition. Paragraph  19  Is  limited  to  Annexure  V  and  paragraphs  20  and  21  are  limited to  performance  of  the  Yagya  and  the  meeting  thereafter.
"18  Balbahaddar  Prasad  (R.W.  37)  says  that  he  was  asked  by  the  petitioner  to work  in  polling  stations  Kalaina,  Arjunpur,  Aya,  Karamdih,  Jahandanya  ana Basalatpur  where  50  per  cent  of  the  population  consisted  of  Brahmins.
 
He  further  says  that  the  petitioner  had  asked  him  to  canvass  in  those  areas in  the  names  of  Brahmins  and  that  they  should  support  his  candidature  The fbove  story  of  the  witness  cannot  be  believed  as  it  would  be  against  the  Interest

SEC.  3(ii)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  871
of  the  petitioner  to  canvass  for  Brahmins'  votes  only  in  those  areas  where,  according to  the  witness,  the  remaining  50  per  cent  of  the  population  comprised  of  non- Brahmins  voters.
His  evidence  was  considered  on  Issue  No.  16  and  he  was  disbelieved.  Although he  says  that  he  canvassed  lor  the  petitioner  in  the  area  of  about  6 polling  stations, he  could  not  say  who  were  the  workers  of  petitioner  in  those  polling  stations. This  shows  that  he  never  worked  for  the  petitioner  or  canvassed  for  him.
219.  Ram  Kumar  (R.W.  38)  says  that  he  saw  Swatantra  party  workers  at different  places  making  appeal  for  the  petitioner  in  the  following  words; —
"woh  kah  rahe  the  ki  yeh  bahut  bare  Pandit  hjin  aur  jogya  huin  iuhin  ko vote  diya  jaye  yah  dharampat  ki  raksha  karengen  yeli  jati  Brahmin hain".
Thia  story  is  not  mentioned  in  paragraphs  19,  20  and  21  of  the  Recriminatory Petition.  Allegations  in  paragraph  18  are  of  a  general  nature.  Therefore,  the above  evidence  of  this  witness  must  be  ignored.
In  para  4  of  his  deposition  he  says  that  after  the  performance  of  the  Yagya  a meeting  was  held  which  was  attended  by  some  four  or  five  thousand  persons. One  Panditji  who  was  some  Shastriji  and  who  had  participated  in  the  Yagya  was asked  by  the  petitioner  to  address  the  meeting.  This  witness  could  not  say  about the  entire  speech  of  Shastriji  but  was  able  to  tell  some  portion  of  it,  which  he says,  was  as  follows: —
"Yeh  bahut  bare  pandit  hain  yeh  vote  dene  ke  kabll  hain  inhin  ko  vote diya  jaye  aur  yeh  Brahmanut  dharma  ka  raksh.i  karenge  and  Ram Ratan  Gupta  ko  vote  dena  rnahan  murkhata  hat  woh  jat  ka  baniya baeman  sarabj  ghoos  lene  wala  mazdooron  ka  khoon  choosne  wala isko  vote  dena  mahan  paap  hai".
This  speech  making  an  appeal  on  the  ground  of  Brahmins  Vn.  Bania  has  not "been  alleged  in  paras  20 and  21 of  the  Recriminatory  Petition;  it  cannot,  therefore, be  considered.
In  para  J?  this  witness  says  that  the  petitioner  also  addressed  the  meeting  in the  following  words: —
"Ham  bhi  Brahman  hai  aap  logon  ke  jatf  bfrai  hain  aur  Bashigl  gotra hamara  bhi  hai  aur  aap  log  bhi  Bashist  gptra  hain  aur  agar  aap  log hamko  vote  denge  to  jahan  tak  ho  sakega  app  longon  ki  har  prakar  so subdha  karenge  aur  dharam  ka  palan  -hQga  Brahman  jati  ka  mahatv barhega  aur  Ram  Ratan  Gupta  ko  vote  dena  mahan  bhool  hai  kyoki woh  jat  ka  baniya  mazdooron  ka  khoon  choosne  wala  sharabi  Jhoot bolne  wala  jo  unko  vote  denge  woh  Brahman  jati  ko  kalank  lagana hai  athwa  mahan  paap  hai".
There  is  no  mention  in  the  Recriminatory  Petition  about  the  above  speech  said to  have  been  given  by  the  petitioner.
No  reliance  can,  therefore,  be  placed  on  this  witness  that  the  petitioner  addressed the  meeting  in  the  manner  stated  above.
22Q. Kamta  Frasad  (R.W.  39)  says  that  during  the  Yagya,  workers  of  the petitioner  were  making  the  propaganda  that  they  should  support  Baba  Dandekar. He  also  says  that  after  the  Yagya  there  was  a  meeting  which  was  addressed  by Panditji  and  thereafter  by  the  petitioner.  He  does  not  say  what  were  the  words uttered  by  the  petitioner  but  he  speaks  about  his  impression  which  was  created  in his  mind  about  the  seeeeh—it  was  to  the  effect  ,tfoat  the  petitioner  was  a  Dharmi man  and  a,  pious  man,  and  they  should  all  uuttoort  his.,candidature.  He, does  not say  that  the  canvassina  was  by  way  of  an  appeal  on  ground  of  caste  or  rommunity.
Ham  Kumar  (R.W.  38)  and  Kamta  Prasad  (R.W.  39)  have  eontradkted  each other  about  the  time  of  the  commencement  of  the  meeting  and  when  It  ended.
221.  Dayal  (R.W.  40)  has  deposed  that  while  Yagya  was  being  performed  by the  petitioner,  his  workers  kept  themselves  busy  in  the  Mela  propagating  that  the petitioner  has  performed  the  "Havan"  and  was  a  pious  and  good  -man  whereas Gupta  was  a  drunker  and  a  bad  man.  They  made  an  appeal  for  the  support  of the  petitioner  on.jthat .giound.  There  is  no  such  allegation  in  the.  Recriminatory Petition  that  canvassing  was  done  by  Swatantra  party  workers  during  'Yagya'. '  •  -  -  .  1  -  • • - . .'  , • • ' • • -, The  above  evidence  does  not  prove  that  the  canvassing  was  done  on  the  grounds
of  caste  and  community.

872  T HE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  I I-
He  further  says  that  after  the  performance  of  the  Yagya,  a  meeting  v=as  held which  was  addressed  by  a  Pandit  who  had  participated  In  the  'Havan'  and  also by  the  petitioner.
The  speech  given  by  the  Pandit,  according  to  the  witness,  was  in  the  following words: •—
"Ham  Ratan  Gupta  ko  vote  nahln  dena  hal  yeh  anda  khate  haln  sharab  pite hain  vote  do  to  DandekMr  ku  do  yeh  Bruhman  ham  uchha  kam  karte haln  uttam  Brahman  haln".
He  says  that  the  speech  given  by  the  petitioner  was  as  follows: —
"Vote  Ram  Ratan  Gupta  ko  nahln  dena  hai  woh  mazdooron  ka  khoon choosta  hai  sharab  pine  wala  hal  woh  Banlya  hal  ham  Brahman haln".
222.  Lai  Bahadur  (R.W.  47)  says  that  at  the  time  of  the  Yagya,  the  petitioner's workers  were  propagating  "people  should  support  petitioner  as  he  was  pious  and religious  minded".
He  further  says  that  the  speech  of  Shaatrijl  was  as  follows: —
"Baba  Dandekar  dharamwala  hain  Pujari  adml  haln  iuko  vote  diya  jaye jab  Dharam  rahi  to  sab  kuchh  hai  Gupta  jo  khare  haln  woh  Krishtani hni  chamron  kc  yahan  kha  leta  haln  aur  gosht  maehhll  kha  let  hain  jab dharam  na  rahl  to  aur  kuchh  hokar  ka  rahi".
According  to  him,  the  petitioner  said  as  follows: —
"Ham  Brahman  adml  hal  aur  Dharam  karte  hain  Jo  sarnjha  jaye  to  klya jaya  Purnyatma  adml  hato  lsilye  hamre  ka  vote  do  Dharam  rahl  to sab  kuchh  hai  aur  dharam  na  rani  to  kuchh  nahln  hal".
223.  According  to  Tripurarl  Jaitly  (R.W.  60),  the  speech  given  by  Shaatrijl  waa
as  follows: —
"Aap  sab  ne  dekha  ki  Pt.  Baba  Dandekar  kltne  bare  k^rmat  Brahman  hain aur  unhon  ne  itna  bara  Yagya  sampann  karaya  Brahmantav  ki  raksha ke  llye  aur  .Janeoo  nikal  kar  unhon  ne  Jikhaya  Is  janeoo  ki  raksha ke liye  aap  sab  Brahmanon  ka  punit  kartavya  hai  kl  aap  apne  Brahman bhal  Pt  Dandekar  hi  ko  vote  den  Ram  Ratau  Gupta  nialiksh  hal madira  mans  ka  sevan  karta  hal  Babhichari  hal  ayse  adml  ko  vote dene  se Brahman  jaat  ka  patan  hoga".
According  to  him  the  above  speech  of  Shastrlji  was  followed  by  a  speech  cf the  petitioner  In  the  following  words: —
"Main  aap  hi  ka  gotra  ka  Bashishl  Brahman  hoon  aur  yeh  jan  kar  kl Eabhant  Piar  men  aap  sub  Brahman  bhi  mere  hi  gotra  ke  hain  vanan se  khare  hone  ka  sahas  kiya  aur  agar  aap  sab  chahte  hain  kl  yeh mans  madra  khane  wala  maliksh  banlya  ke  mukable  men  ek  karm kandi  Brahman  ki  jeet  ho  to  aap  mujhe  vote  den,  is  se  Brahman dharam  ki  raksha  hogl".
The  witnesses  named  above  are  at  variance  as  to  the  words  used  by  the  peti- tioner  In  his  speech  while  addressing  the  gathering  after  the  Yagya.
The  netitioner  in  his  cross-examination  has  affirmed  that  he  or  Raja  Sahib  of lvTnnkanur  or  any  one  else  who  spoke  in  the  meeting  made  no  reference  whatsoever •£  the  Mraonal  character  or  habits  or  religion  or  caste  or  any  other  personal matter  K nT  to  K o n d e nt  No.  1;  any  witness  who  had  deposed  to  the  contrary Sa"  ntterinsrfalsehood^  also  they  made  no  reference  whatsoever  to  their  own personal  S ^ ra  or  reUglon  or  caste  and  any  statement  to  the  contrary  was  false.
wo  further  said  that  he  did  not  ask  for  votes  on  the  ground  of  his  religion
t ^ nr  nlGtv  No  one  who  spoke  at  the  Swatantra  party  meeting  asked  for ° Va  fnV him  onthe Vounrt  oi  religion,  caste  or  his  mous  habits  or  character,  nor did  any  one^suggest  that  they  should  not  vote  for  Respondent  No.  1  because  at hl"  alleged  conduct,  character  or habits.
Th" flUB"atlon that  his  workers  or  those  of  Haifa  Sahib  were  canvassing  In "nH^5"undSeMcla  at the Sarvan Pakar Mela or otherwise on grounds or religion, £2rt"  £  M M WX  an*  character  etc.  b  totally  false.  Any  witnesses  c"  Reflpon- dwt  No  l^hTrnaV  have  stat"d to  the contrary  were  uttering  iatohood.

SET,  S(il)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  8 73
In  Biresh  Misra  Vs.  Ram  Nath  Sharma  and  others—17  E.L.R.  243  it  has  been
held  as  follows: —
"In  cases  where  the  nature  of  a  corrupt  practice  depends  upon  the  -vrords used  by  the  candidate  at  a  meeting,  oral  testimony  In  support  of  the actual  words  used  must  be  viewed  with  great  care  and  caution,  and, apart  from  the  fact  whether  certain  words  were  used  or  not,  unless the  enttre  context  of  the  speech  Is  before  the  Tribunal,  isolated  words, even  If  proved,  may.not  give  a  true  import  of  the  speech,  and  would not  be  sufficient  to  prove  the  commission  of  Itfe  corrupt  practice  o( undue  influence."
I  find  that  Respondent  No.  1  has  failed  to  substantiate  the  allegations  that  the
petitioner  canvassed  In  the  constituency  on  grounds  of  caste  and  community.
224.  Issue  No.  23.—This  issue  relates  to  the  allegations  made  by  Respondent No  1  in  para.  19  of  the  Recriminatory  Petition.  There  is  a  reference  to  a pamphlet  Annexure  V  circulated  by  the  petitioner  during  his  election  It  is alleged  that  the  contents  of  it  were  designed  to  emphasise  the  fact  that  (he petitioner  was  a  high  class  Brahmin  coming  from  religious  711 i nded  Brahmin family,  in  order  to  appeal  to  caste  and  communal  sentiments  of  that  community.
It  has  been  admitted  by  the  petitioner  that  the  pamphlet  Annexure  V  was issued  with  his  consent  by  V.  B.  Bhadkamkar,  his  Election  Agent  (P.W.  2).
Petitioner  in  reply  to  paragraphs  19, 20,  and  21  of  the  Recriminatory  Petition has  mentioned  the  circumstances  under  which  Annexure  V  was  issued  by  him. He  has  referred  to  a  spurious  publication  styled  "Vichar  Bharti'1  without  date and  Editor's  name.  It  is  Ex.  P.  134-
According  to  him,  in  this  spurious  publication  certain  allegations  and innuendos  were  published  affecting  the  personal  character,  conduct  and  religion of  the  petitioner  and  were  calculated  gravely  to  prejudice  the  prospects  of petitioner's  election.  In  particular,  it  was  alleged  that  the  petitioner  was  a Christian  but  was  deceiving  the  electors te  by  posing  as  a  Brahmin.  It  was simply  to  counter  the  effect  of  these  false  allegations  that  the  pamphlet Annexure  V  was  issued  containing  statements  of  facts  The  petitioner  denied that  the  said  pamphlet  was  designed  to  emphasise  that  he  was  a  M°h  class Brahmin  or  with  any  object  of  appealing  to  the  caste  and  communal  senti- ments  of  the  Brahmin  community.  (See  paras  110  and  111  of  P.W.  l's  depo- sition).
225.  Ex.  P.  134  ig  the  copy  of  the  spurious  "Vichar  Bharti"  which  contains a  column  "Kya  Dandekar  Brahman  Hain".
On  reading  Ex. P.  134 and Annexure  V  it  is  abundantly  clear  that  the  details were  given  to  meet  the  question  "Kya  Dandekar  Brahman  Hain"  posed  in  the spurious  Vichar  Bharti  Ex.  P.  134.  The  contents  of  Annexure  V  would  go  to show  that  spurious  Vichar  Bharti  was  published  on  16th  February  1962.
Norayan  Dandekar  (P-W. 1)  has  stated  in  para  110 that  Ex.  P.  135 was  issued three  or  four  days  later.
Tribhuan  Dutt  Sharma  (R.W,  29)  says  that  he  received  Annexure  V  a  day before  the  poll.  In  para  4  he  says  after  reading  the  above  he  turned  against Respondent  No.  1  and  began  to  work  for  the  petitioner.  This  is  apparently false  and  absurd.
Jamuna  Prasad  (R.W.  32)  says  that  at  10  A.M. petitioner  distributed  in  his village  ?>  pamphlets  like  Annexures  V.  VI,  nnd  VII  and  said—
"Achhai  aur  burai  jo  kuchh  hai  ych  parh  kar  sun  lijiye  aur  samajh lijiye,  jisko  samajh  pare  usko  vote  do".
He  worked  for  Congress  till  the  20th  February  1962  and  suddenly  changed over  after  reading  the  pamphlet.
It  is  clear  that  he  was  tutored  to  state  about  Annexures  VI  and  VII  and while  doing  so,  he  has  also  included  Annexure  V  in  his  statement.  There  is nothing  in "Annexure  V  that  will  make  him  quit  the  Congress.
Sheo  Prasad  (R.W.  30)  says  that  at  about  10  A.M. the  petitioner  gave  him three  parchas  like  Annexures  V,  VI  and  VII  in  village  Lalpur  and  said: —
"Hamar  bhalai  burai  aur  Ram  Ratan  ki  bhalal  burai  yeh  ka  parh  ke  jeka achha  samjho  woka  vote  do".

874  ^  QAZEXT?  PF  JNBIA  EXTRAORDINARY  |TA*f  I I-
. He  says  he  also  -worked,. for  Congress,-  but  after  the  pamphlets  were  read over  to  him,  he  changed  sides  and.  decided  to  vote  for  the  petitioner-  He  is an.  illiterate.  He  says  he  can  only  sign  his  name.  He  does  not  remember  whm were  the  contents  of  any  of  the  parchas  which  were  distributed  and  at  the time  of  the  distribution  these,  pachas  were  not  reau  over  IVJ  him,  but  they were  read  over  after  the  petitioner  had  left.
It  is  clear  that  the  contents  of  Annexuie  V  made  no  impression  on  his mind.
He  further  says  that  Annexure  V  was  distributed  in  the  Yagya  which  was performed  on  the  4th  February  19(52.  Tt  is  obvirusly  f-'lsc 'because  Annexure  V could  not  have  been  published  before  17th  February  l&tiU.  He  is  a  tutored, witness,  his  evidence  must  be  rejected.
Tripurari  Jaitly  (R.W.  60)  says  about  the  distribution  and  its  result.  He does  not  say  that  while  distributing  of  Annexure  V,  votes  were  sought  on grounds  of  caste.  He  has  been  a  political  Secretary  of  Respondent  No-  1  for the  lust  12  years.  He  is  highly  interested  *n  supporting  Respondent  No.  l's case.
The  evidence  of  the  above  named  witnesses  docs  not  show  that  the  distribu- tion  of  Annexure  V  was  made  with  a  view  to  bolster  petitioner's  candidature, on  the  ground  of  caste  or  appeal  Lo  caste  and  communal  sentiments  of  the Brahmin  community.
226.  The  question  for  consideration  is  whether  Annexure  V  itself  and  its issue  will  bring  it  within  the  mischief  of  section  123(3)  of  the  Representation of  People  Act.
It  was  contended  on  behalf  of  Respondent  No.  1  that  the  petitioner  lor  the first  time  in  the  pamphlet  Annexure  y  added  the  prefix  "Pandit"  to  his  name to  emphasise  the  fact  that  he  was  a  high  class  Brahmin  coming  from  a  religious minded  Brahmin  family  in  order  to  appeal  to  caste  and  communal  sentiments of  that  community.
In  this  connection  reference  was  made  to  paras  170  and  171  of  his  cross- examination.
In  para  172  he  has  made  it  clear  that  the  answer  in  Annexure  V  to  the question  whether  he  was  a  Brahmin  was  given  in  great  detail  so  that  there should  remain  no  doubt  on  the  subject;  and  any  one  who  still  doubted  could check  all  or  any  of  the  facts  mentioned  in  the  answer.  It  was  therefore  also mentioned  in  the  answer  that  the  Pujariship  of  a  temple  mentioned  there  has been  in  his  family  for  generation.  It  was  not  with  the  intention  of  advertising that  he  came  from  a  high  class  Brahmin  priest  family.  The  same  answer  appli- ed  to  the  mention  of  the  fact  that  on  his  wife's  side,  there  was  relationship with  the  famous  Rani  of  Jhansi.
In  my  opinion,. the  petitioner  has  given  a  satisfactory  explanation  why  the details  of  his  family  background  had  to  be  mentioned  In  Annexure  V.
The  contents  of  Annexure  V  itself  and  its  issue  will  not  bring  it  within  the mischief  of  section  123(3)  of  the  Representation  of  People  Act.
It  has  been  held  in  Bhim  Rao  Vs.  Ankush  Rao—22  E.L.R.  385  as  follows: —
"From  the  mere  fact  that  an  appeal  brings  out  the  fact  that  a  person belongs  to  a  particular  community  to  the  notice  of  the  public,  it cannot  be  inferred  that  votes  were  being  solicited  on  communal grounds."
The  opinion  of  their  Lordships  at  p.  393  is  given  below: —
 
"In  our  opinion  it  is  difficult  to  characterise  this  news  item  as  communal propaganda  on  behalf  of  the  respondent.  No  doubt  the  respondent is  a  Maratha,  and  this  fact  has  been  brought  out  in  the  news  item. But  it  cannot  be  said  that  by  publishing  this  fact  any  appeal  was being  made  to  the  electors  to  vote  for  the  respondent  on  the  ground that  he  is  a  Maratha.  Apparently,  the  object  of  publishing  the

Sec  3(il)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  875
news  item  was  to  contradict  false  propaganda  alleged  to  have  been secretly  carried  on  by  the  Congress  workers  against  the  respon- dent.  It  may  be  that  as  a  result  of  the  publication  the  voters  would come  to  know  of  the  precise  community  to  which  he  belongs,  but by  merely  bringing  the  fact  to  the  notice  of  the  public  it  would not  be  proper  to  infer  that  their  votes  were  being  solicited  on communal  grounds.  We  are,  therefore,  unable  ro  accept  the  argu- ment  advanced  before  us  by  Mr,  Chandrachud."
Same  view  was  held  in  1964  M.P.  62  at  p.  69  para  29.
I,  therefore,  hold  that  the  pamphlet  Annexure  V  issued  by  the  petitioner does  not  come  within  the  mischief  of  section  123(3)  01  the  .Representation  of People  Act.
227.  Issues  Nos.  24  and  25.—Respondent  No.  1  in  paragraph  20  of  the  Recri- minatory  Petition  has  alleged  that  the  petitioner  and  Raja  Raghvendra  Pratap Singh  and,  with  his  consent,  the  workers  and  supporters  of  the  petitioner organised  a  "Yagya"  on  the  4th  of  February  1%2  at  Sarvan  Pakar  Mela,  where annually  a  fair  is  held  on  Magh  Amavasya.  It  is  further  alleged  that  the petitioner  in  'Pitambar'  dress  and  Raju  Raghvendra  Pratap  Singh  performed religious  rites  connected  with  the  'Yagya'  on  the  above  date  there.  The  "Yagya" was  followed  by  a  meeting  in  which  an  appeal  was  made  on  the  ground  of Hindu  religion.  This  they  did  in  order  to  impress  upon  the  general  public  and the  electorate  ot  the  constituency  who  had  collected  there  that  the  petitioner and  Raja  Raghvendra  Pratap  Singh  were  spiritually  and  religiously  to  be  regard- ed  as  chaste  and  pious  Hindus  and  further  to  impress  upon  the  electorate  that Ram  Ratan  Gupta,  opposing  the  petitioner,  was  not  so  and  that  the  electorate would  be  acting  against  the  divine  precepts  in  supporting  and  giving  the  votes to  Ram  Ratan  Gupta.
It  is  further  alleged  that  the  petitioner  emphasised  before  the  gathering  that Ham  Ratan  Gupta  was  a  heterodox  Hindu  in  character  and  conduct  and  in  his habits  of  eating  and  dining  with  Muslims;  that  he  eats  eggs,  chicken  and  Murgas and  fish  and  all  kinds  of  flesh  and  was  thoroughly  impious  and  ineligible  to  be called  a  Hindu  Baniya  and  that  the  general  Hindu  public  and  the  electorate would  he  acting  against  the  precepts  of  Hindu  religion  if  they  voies  for  Ram Ratan  Gupta.
It  is  further  alleged  that  the  statements  about  the  personal  character  of  Ram Ratan  Gupta  were  false  to  their  knowledge  and  which  they  had  no  reason  to Relieve  to  be  true  and  as  such  they  committed  corrupt  practice "as  mentioned  in sections  123(2)  and  123(4)  of  the  Representation  of  People  Act.
228.  The  above  allegations  were  denied  by  the  petitioner.
The  petitioner  stated  that  Raja  Raghvendra  Pratap  Singh  used  to  visit  the place  "Sarvan  Pakar"  every  year  on  the  day  of  the  Mela  and  his  visit  an  4th February  1962  was  in  accordance  with  his  custom.  The  petitioner  accompanied him  as  he  was  near  the  place  and  an  election  meeting  was  to  be  held  there  at 1  P.M.  The  petitioner  and  Raja  Raghvendra  Pratap  Singh  visited  the  place together  at  about  1  P.M. at  that  time,  Yagya  was  already  over.  The  petitioner denied  that  he  or  Raja  Raghvendra  Pratap  Singh  performed  the  "Yagya"  at Sarvan  Pakar  Mela.  This  "Yagya"  w&s performed  by  the  villagers  for  propi- tiating  the  Gods  in  connection  with  "Ashtagrahi".  The  allegations  that  the petitioner  or  Raja  Raghvendra  Pratap  Singh  in  their  speeches  made  references against  Respondent  No.  l's  character  or  that  they  made  an  appeal  on  ground  of religion  or  caste  are  denied  by  the  petitioner.
229. Respondent  No.  1  has  examined  Ram  Kumar  (R.W.  38),  Kamta  Prasad (R.W.  39),  Dayal  (R.W.  40),  Ram  Dularey  (R.W.  41),  Lai  Bahadur  (R W  47) and  Tripurari  Jaltly  (R.W.  60).
'  '
Ram  Kumar  (R.W.  38)  says  that  he  attended  Sarvan  Pakar  Mela,  where  he eaw  a  platform  for  'Havan  Kund'.  He  also  saw  the  petitioner  dressed  in  yellow garments  performing  the  "Yagya".  He  was  assisted  by  other  Pandits.
Kamta  Prasad  (R,W.  39),  Dayal  (R.W.  40)  and  Lai  Bahadur  (R,W.  47)  says that  they  had  visited  the  Sarvan  Pakar  Mela  and  had  seen  the  petitioner  per- forming  the  "Yagya"  in  yellow  garments.
 
Ram  Kumar  (R.W.  38)  in  his  cross-examination  admits  that  there  was "Ashtagrahi"  in  1962  and  many  "Yagyas"  were  performed  at  many  places  on account  of  the  "ASHTAGRAHI".  A  Yagya  was  performed  and  arranged  by  the

376  T HE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  I I-
people  of  his  village  also.  He  also  admits  that  at  the  time  of  the  performance of  the  Yagya,  at  Sarvan  Pakar  Mela,  the  "Ashtagrahi"  was  continuing.  Although it  is  alleged  in  the  Recriminatory  Petition  that  both  the  petitioner  and  Raja Raghvendra  Fratap  Singh  performed  the  Yagya,  none  of  the  above  witnesses  suv that  the  Yagya  was  performed  also  by  Raja  Raghvendra  Pratup  Singh.  It  is obvious  that  these  witnesses  had  been  tutored  to  say  that  the  Yagya  was  per- foimcd  by  the  petitioner  wearing  yellow  garments.
Ram  Kumar  (R.W-  38)  was  a  worker  for  Dcvcndva  Nath  Misra,  a  congress candidate.  Kamta  Prasad  (R.W.  39)  is  a  congress  man.  Dayal  (R.W,  40)  says that  he  had  voted  for  congress,  Lai  Bahadur  (R.W.  47)  was  n  worker  of Eevendra  Nath  Misra  in  the  election  (vide  para  8  of  the  deposition  of  Satya Narain  Pandey  P.W.  17).
Tripurari  Jaitly  (E.W.  60)  alleges  to  have  seen  the  petitioner  performing  the Yagya  with  four  or  five  Pandits.  He  is  Respondent  No.  l's  political  Secretary.
All  the  witnesses  admit  that  Yagyas  were  performed  at  various  places  to propitiate  the  evil  effects  of  "Ashtagrahi".
Dayal  (R.W.  40)  could  not  name  any  of  the  Pandits  of  the  Yagya  except  the petitioner  and  could  not  name  any  other  person  present  in  the  petitioner's  meeting except  Ram  Kumar  (R.W.  38)  and  Kamta  Prasad  (R.W.  39),  who  gave  evidence before  the  Tribunal  on  the  same  date.
Kamta  Prasad  (RW.  39)  admits  in  his  cross-examination  that  he  had  never seen  the  petitioner  before  he  saw  him  at  the  Mela  for  the  first  time.  The  people- assembled  there  told  him  that  the  person  wearing  yellow  robes  was  Dandekar. He  could  not  remember  the  name  of  the  person  who  said  so.
Lai  Bahadur  (R.W.  47)  was  asked  to  describe  the  petitioner.  In  para  7  of  his cross-examination,  he  gave  a  non-committal  reply  and  added  that  the  petitioner was  bald.  It  is  obvious  that  he  did  not  see  the  petitioner  at  the  time  of  the  Yagya.
Ram  Dularey  (R.W.  41)  speaks  about  the  purchase  of  'Havan'  samagri  at  Gonda from  the  shop  of  Hanuman  Prasad  Pansari  along  with  one  of  the  petitioner's  men.
He  poses  to-  be  a  worker  of  petitioner  and  now  he  has  come  to  depose  in favour  of  the  rival  candidate.
Bam  Saran  (RW  57)  says  that  this  witness  was  present  in  the  congress  camp on  the  day  of  poll"  This  witness  also  speaks  of  the  presence  of  Nankau  Chaprasi. In  fact,  there  was  no  such  person  in  the  employment  of  the  petitioner.
Ram  Dularey  (R.W.  41)  is  a  veritable  lier.  Hanuman  Prasad  Pansari  from whose  shop  the  'Havan  Somagri'  is  alleged  to  have  been  purchased  has  not  been examined  by  Respondent  No.  1  to  corroborate  Ram  Dularey  (R.W.  41).  All  of them  are  partisan  witnesses,  no  reliance  can  be  placed  on  their  testimony.
Pptitioner  (PW  1)  has  deposed  in  para  112 that  he  did  not  perform  the  Yagya.
He  reached  the  Sa'rvan  Pakar  Mela  at  1  P.M. and  addressed  the  meeting.
230  Much  stress  has  been  laid  by  the  learned  Advocate  General  during  his argument  on  Ex.  P.  10  written  by  the  petitioner.  Respondent  No.  1's  counsel refeTed  to  it  to  support  the  contention  that  the  "Yagya"  was  performed  by  the petitioner.
Ex  P 10  only  establishes  the  following  facts:—
(1)  That  the  petitioner  had  arranged  a  Yatfva  to  be  performed  followed  by a  meeting  The  letter  nowhere  mentions  that  the  petitioner  himself or  Raia  Sahib  Mankapur  were  personally  to  perform  the  Ya g^a' The  words  "to  be  performed"  cannot  be  interpreted  to  mean  that  the Yagya  would toe performed  by  the  petitioner  or  Raja  Sahib  Mankapur. (?1  The  petitioner  apprehended  serious  trouble  in  the  shape  of  counter demonstration  on  the  occasion  which  may  lead  to  breach,  of  peace. In  fact  the  petitioner  had  been  warned  of  such  a  happening  unless he  agreed  to  drop  the  function  altogether.
ni  Tn  the  above  circumstances,  the  petitioner  and  Raja  Sahib  Mankapur 1  }  could  not  contemplate  abandoning  the  function,  as  such  a  step  would have  a  serious  consequence  on  his  election  prospects.
TV,"  nhnve  naracraph  could  not  mean  that  the  absence  of  the  petitioner  or  the R a ? of  Mankapur  would  lead  to  the  abandonment  of  the  performance  of  Yagya.

SEC  3(11)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  %JJ
Ex.  P.10  has  been  fully  explained  by  petitioner  (P.W.  1)  in  para  112  of  his deposition  and  also  in  paragraphs  174,  175,  176  and  177.
The  statement,  of  the  petitioner  is  corroborated  by  V.  B.  Bhadkamkar  (P.W.  2) in  paras,  285,  286  and  in  paras  310,  311,  312,  3J3  and  316.  The  only  person  who could  have  rebutted  the  above  evidence  was  C.  M.  Nigam,  but  he  has  not  been produced  by  Respondent  No.  1.
It  was  also  argued  on  behalf  of  Respondent  No.  1  that  Ex.  R.218  shows  that Yagya  was  actually  performed  by  the  petitioner.  This  argument  cannot  be accepted  as  Ex.  R.218  does  not  mention  the  performance  of  the  Yagya  or  the presence  of  the  petitioner  or  Raja  Sahib  Mankapur  at  the  Yagya.
Respondent  No.  1  has  failed  to  adduce  cogent  evidence  to  show  that  the *"Yagya"  at  Sarvan  Pakar  Mela  was  performed  by  the  petitioner  or  Raja Raghvendra  Pratap  Singh.
231.  Next  point  Tor  consideration  is  whether  the  petitioner  addressed  the public  meeting  at  tho  Mela  appealing  on  ground  of  Hindu  religion  to  vote  for  him and  not  to  vote  for  Ram  Ratan  Gupta,  as  he  was  not  a  religious  man.
The  above  allegations,  I  have  already  considered  and  decided  in  issue  No.  23. It  only  remains  to  be  seen  whether  in  the  meeting  addressed  by  the  petitioner, any  reference  to  tho  persona]  character  of  Respondent  No.  1 was  made  as  alleged in  para  21  of  the  Recriminatory  Petition.
Ram  Kumar  (R.W.  38)  mentions  about  the  speech  which  was  made  by Shastriji.  The  evidence  regarding  Shistriji's  speech  is  to  be  ruled  out,  as  there is no  allegation  about  it  in  paras  20 and  21 of  the  Recriminatory  Petition.
Petitioner's  speech  as  given  out  by  Ram  Kumar  (R.W.  38)  is  different  from what  is  mentioned  in  para  21  of  the  Recriminatory  Petition.
Kamta  Prasad  (R.W.  39)  does  not  say  what  was  the  speech,  but  he  merely gives  his  impression.
According  to  Dayal  (R.W,  40),  the  speech  given  by  the  petitioner  was  as follows;—
"Vote  Ram  Ratan  Gupta  ko  nahin  dena  hai  woh  mazdooron  ka  khoon choosta  hal  sharab  pine  wala  hal  woh  Baniya  hai  ham  Brahman  hain."
The  alleged  speech  is  quite  different  from  the  allegations  in  paras  20  and  21 of  the  Recriminatory  Petition.
Lai  Bahadur  (R.W.  47)  gives  quite  a  different  version  of  the  speech  made  by petitioner  in  the  meeting.  According  to  him,  the  petitioner  said  as  follows:—
"Ham  Brahman  admi  hain  aur  dharam  karte  hain  Jo  samjha  jaye  to  kiya jaye  Purnyatma  admi  hain  Isliye  hamre  ka  vote  do  Dharam  raht to  sab  kuchh  hai  aur  Dharam  na  rahl  to  kuchh  nahin  hai."
According  to  Tripurari  Jaitly  (R.W.  60),  the  petitioner  addressed  the  meeting in  the  following  words:—
"Main  aap  hi  ke  gotra  ka  bashisht  brahman  hoon  aur  yeh  jan  kar  ki Babhani  Piar  men  aap  sab  Brahman  bhi  mere  hi  gotra  ke  hain  yahan se  khare  hone  ka  sahas  kiya  aur  agar  aap  sab  chahte  hain  ki  yek  mans madira  khane  wale  maliksh  baniye  kc  mLikable  men  ck  karm  kandi Brahman  ki  jeet  ho  to  aap  mujhe  vote  den.  Is  se  Brahman  dharam ki  raksha  hogi."
He  has  evidently  surpassed  the  other  witnesses  in  quoting  the  words  alleged  to have  been  uttered  by  the  petitioner  in  the  meeting.  This  witness  is  an  active worker  of  the  congress  and  at  present  he  is  a  member  of  the  City  Congress  Com- mittee  and  has  also  courted  imprisonment  during  the  Congress  movement  in  1942.
In  his  enthusiasm  he  over  shot  the  mark.
It  is  clear  that  the  above  witnesses  have  given  different  version  of  the  speech made  by  the  petitioner  while  addressing  the  meeting  at  Sarvan  Pakar  Mela.  They have  failed  to  prove  the  true  import  of  the  speech  given  by  the  petitioner.
I  find  that  Respondent  No.  1 has  failed  to  substantiate  the  allegations  in  paras 19,  20  and  21  of  the  Recriminatory  Petition.

S78  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  I I-
232.  The  next  question  for  consideration  is  whether  "Ya£ya"  is  a  symbol  or is  a  mere  rite.
It  was  argued  on  behalf  of  Respondent  No.  1 that  a  Yagya  is  a  religious  symbol and  the  performance  thereof  would  amount  to  use  of  an  appeal  to  the  religious symbol  for  furtherance  of  the  candidate's  prospects  at  the  election.
I  am  unable  to  accept  the  Respondent  No.  l's  contention  that  Yagya  is  • symbol.
It  has  been  held  in  Karan  Singh  Vs. Jamuna  Singh—15 E.L.R.  370  as  follows: — "The  use  of  the  expression,  "such  as"  instead  of  "including"  or  "for example",  in  section  123(3)  connotes  an  idea  that  only  those  national symbols  should  be  taken  into  account  which  are  alike  and  similar  to the  national  flag  or  the  national  emblem.  In  order  to  be  like  or similar  to  the  national  flag  or  the  national  emblem,  a  national  symbol must  possess  the  same  characteristics  which  are  possessed  by  the national  flag  or  a  national  emblem  and,  therefore,  must  become  a national  symbol  by  a  process  similar  to  that  by  which  the  national flag  became  a  national  symbol".
The  point  has  been  discussed  at  length  in  pages  374  to  377.
To  suggest  that  performance  of  "Yagya"  amounts  to  a  religious  symbol  con- templated  in  Section  123(3)  of  the  Representation  o;  People  Act  is  to  engage  in unconvincing  sophistry.
233.  Issue  Wo.  26.^Respondent  No.  1  In  para  22  of  the  Recriminatory  Petition has  alleged  that  leaflets  like  Annexure  VI  were  published  by  Abdul  Rahim  Khan alias  Buddhoo  Khan  who  was  an  agent  of  the  petitioner  and  distributed  by  him; that  the  allegations  in  the  above  Annexure  were  against  the  personal  character and  conduct  of  Respondent  No.  1  which  were  false  to  the  knowledge  of  the petitioner  and  Buddhoo  Khan  and  they  did  not  and  could  not  believe  it  to  be  true. The  person  who  distributed  the  said  leaflets  did  so  with  the  consent  of  the petitioner.
The  petitioner  in  para  22  of  his  written  statement  that  Abdul  Rahim  Khan •worfeed  as  a  counting  agent  for  him  at  the  time  of  recounting,  but  denied  that he  printed  and  published  •the  leaflets  with  his  knowledge  and  consent,  He  also denied  that  the  said  leaflets  were  distributed  at  any  time  in  the  constituency with  his  knowledge  or  consent.
Respondent  No.  1 examined  Sheo  Prasad  (R.W-  30),  Jamuna  Prasad  (R.W.  32), Nankau  (R.W.  33),  Sheo  Lagan  (R.W.  35),  Narain  (R.W.  55)  and  Tripurari  Jaitly (R.W.  60)  regarding  the  distribution  of  the  leaflets.
Sheo  Prasad  (R.W.  30)  says  that  the  petitioner  gave  three  parchas  like Annexures  V,  VI,  and  VII  at  village  Lalpur.
Jamuna  Prasad  (R.W.  32)  says  that  at  about  10  A.M.  Buddhoo  Khan,  Ragho  Ram Pandey  and  the  petitioner  went  to  his  village  Gaurawa  Kanungo  and  distributed leaflets  like  Annexures  V,  VI  and  VII.
Sheo  Lagan  (R.W.  35)  says  that  he  was  given  a  bundle  of  papers  containing 3  parchas.  Out  of  those  two  were  like  A.nnexures  VI  and  VII,  He  was  asked  to distribute  these  parchas  in  different  villages  and  also  tri  get  them  pssted  at various  places.
Narain  (R.W.  55)  and  Tripurari  Jaitly  (R.W.  60)  both  say  that  leaflets  like Annexure  VI  were  distributed  by  the  petitioner  at  Malari  and  Babni  Piar respectively.
Tripurari  Jaitly  (R.W.  60)  does  not  say  who  distributed  these  leaflets.
Evidence  of  Sheo  Prasad  (R.W.  30)  and  Jamuna  Prasad  (R.W.  32)  has  been considered  in  connection  with  issue  No,  23  and  they  were  found  unreliable.
(R.W. -33)  who  appeared  as  a  witness  is  an  imposter.  His  entire  evidence  has been  rejected.
Sheo  Lagan  (R.W.  35)  posed  to  be  a  worker  of  the  petitioner  but  now  has come  to  give  evidence  in  favour  of  the  rival  candidate.
 
In  his  cross-examination  he  says  that  he  was  engaged  by  Tribhuan  Dutt,  a sipahi  of  the  petitioner  on  Rs.  5 per  day.  He  has  also  admitted  that  in  his  village

SEC  3(ii)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  8 7^
there  was  no  one  to  do  the  canvassing  on  behalf  of  the  petitioner  nor  on  behalf of  Hem  Raj  Gir,  but  there  was  canvassing  for  congress,  which  was  done  by Prem  Sagar  and  others,  It  is  difficult  to  believe  that  Tribhuan  Dutt  would  go  to the  village  of  this  witness  for  bis  enrolment  ,as  petitioner's • worker  when  there was  no  canvassing  for  the  Swatantra  party  in  his  village.
Narain  (R.W.  55)  in  his  cross-examination  says  that  Ishwar  Saran  was  a congress  candidate  for  the  Assembly.  Last  time  he  came  two  or  three  days before  the  date  of  poll.  When  Ishwar  Saran  came  last  time  after  the  visit  of  the petitioner  the  witness  did  not  show  the  parcha  (Annexure  VI)  to  Ishwar  Saran, neither  did  he  tell  him  about  the  allegations  that  were  made  against  the  congress candidate.
In  the  face  of  the  above  admissions,  it  is  difficult  to  believe  this  witness  that leaflets  like  Annexure  VI  wore  distributed  by  the  petitioner  in  his  village.  Had there  been  really  such  a  distribution,  as  stated  by  him,  he  would  have  certainly Shown  the  pamphlet  to  Ishwar  Saran.
I  disbelieve  his  evidence.
Petitioner  (P.W.  1)  in  para  122  has  stated  that  Abdul  Rahim  Khan  was  at  no- time  his  agent  or  worker,  but  in  his  list  of  counting  agents  for  the  first  counting of  Mahadeva,  his  name  was  suggested  and  included.  Subsequently,  before  the first  counting  his  nomination  as  his  counting  agent  was  revoked.
In  his  written  statement  which  he  filed  in  reply  to  the  Recrimination  Petition, he  says  he  inadvertantly  stated  that  Abdul  Rahim  Khan  was  his  counting  agent at  the  recounting.  This'is  also  a  mistake.  He  says  he  was  not  his  counting  agent at  the  recounting.  The  revocation  of  Abdul  Rahim  Khan  as  his  counting  agent at  the  first  counting  was  in  writing.  The  revocation  of  Abdul  Rahim  Khan  has not  been  controverted  any  further.
There  is  no reliable  evidence  to  show  that  he  acted  as  an  agent  of  the  petitioner in  distributing  the  leaflets  Annexure  VI.
234  The  following  is  the  translation  in  English  of  Annexure  VI.  The  dialogue in  this  leaflet  is  not  directed  against  the  personal  character  or  conduct  of Respondent  No.  1.
"Ramai— Yes,  Gupta  has  become  a  SETH  by  usurping  such  money  here and  there.  He  runs  several  mills,  is  Mayor  of  Kanpur  and  is throwing  money  like  water  in  order  to  become  M.P,  on  Congress ticket.
Santoo.—Addressing  as  Bachcha  said:  It  is  the  youth  of  KALYUG.  Aro you  not  aware  that  Chandrabhan  Gupta  lost  two  elections  and  then became  Chief  Minister  at  Lucknow—Money  has  power  to  wipe  off lacs  of  evils.
RahirMn  I  am  fed  up,  my  boy  does  not  agree  with  me.  He  asks  me  to vote  for  Gupta  and  to  procure  votes  for  him,  as  he  would  get  service in  the  mill  he  is  a  great  man  and  feeds  great  persons.  Babu Sampurnanand  Ex-Chief  Minister's  brother  Paripurna  Nand  is  under his  employment.
 
Santoo.—It  is  in  order  to  feed  big  personalities  Gupta  ha-  secured  Congress Ticket  otherwise  this  very  Gupta  won  Municipal  election  against Congress  but  lost,  his  seat  on  account  of  the  election  Petition,  He  m "he  Octroi  election  of  1D35  made  his  dozens  of  followers  to  contest the  election  againsi  -ongres-s,  and  in  order  to  secure  Chairmanship olayed  tricks  but  ultimately  was  defeated.  He  in  order  to  get  the title  of  "KNIGHTHOOD"  during  the  world  war  pleased  Morris  Hal lot the  Governor  of  Province  and  trot  himself  enrolled  as  a  member  of Hallot  Memorial  Committee.  H"  in  order  to  secure  a  seat  of  M.F. contested  the  election  from  Sidhi  constituency  Madhya  Pradesh against  congress  but  lost.  He  recently  against  Jagbahadur  Congress candidate  made  Sheo  Kumar  Srivastava  to  contest  the  election  for Chairmanship  of  District  Board,  Kanpur  and  lost.  In  this  election  in. the  Unnao  district  against  congress  he  got  a  friend  of  his  employee to  contest  the  Parliamentary  election  on  Praja-socialist  ticket,  bo long  Shri  Pant  Baba  was  alive  he  could  not  succeed.  Now  every thing  has  changed  Gupta  has  become  a  congressman,  he  gets  hoisted tri-colour  flags  of  mill  cloth  in  Gonda,  he  even  now  wears  mill  cloth,

880  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  I I-
he  spares  nothing  to  uproot  the  Congress.  Are  you  not  aware  that in  order  to  get  vote  for  himself  he  has  manipulated  to  arrange  to  get Dr.  Sixaj  from  Intiathok  contests  as  Swatantra  candidate  and  Shri Nayyar  from  Nawabganj  as  Jansangh  candidate.  He  acts  as  suits  the occasion.  He  is  not  the  same  at  lips  what  he  is  at  heart.
Rahlman.—Brother—Prior  to  what  I  know  today,  in  the  night  of  27th January  I  felt  hatred  when  I  heard  saying,  "The  people  of  Gonda  are thieves  and  Gundas".  The  Hindus  and  Muslims  of  entire  Gonda  have decided  that  vote  may  be  thrown  in  the  well  or  tank  but  should  not be  cast  in  his  favour.  The  prestige  of  Gonda  District  when  there had  been  great  people  like  Molvi  Ashraf  Khan  and  Raja  Debi  Baksh Singh  has  to  be  maintained.  Now  in  whose  favour  vote  is  to  be cart,  the  mind  and  heart  is  unable  to  decide.
Ramai—The  Congress  which  is  ruling—Look  to  all  the  thi'ins—the  permits, the  licences,  the  shifarish  for  employments.  Gupta  was  fined Rs.  2,500  in  1959  for  the  breach  of  Foreign  Exchange  Regulation  Act but  has  not  paid  any  pice  uptill  now.
Santu.—Such  talks  are  hoard.  We  are  not  to  vote  for  Congress  who  in  order not  to  leave  its  chair  made  settlements  with  the  Muslim  League  in Keral,  Gantantra  Parishad  in  Orissa.  and  not  stick  to  its  settlement of  the  achieving  its  object.  We  should  consider  about  the  others. Mphant  Eukli  Haran  Nath  Baba  is  Baba  Hemraj  Gir.  He  is  the  man beloneing  to  the  District  but  cannot  read  or  write.  At  Delhi  Acts are  to  be  passed  and  not  shells  and  bells  are  to  be  sounded  there.  Oh Mahani  Digvijai  Nath,  you  could  get  Baba  who  was  defeated  by W;i7.ir  Khan  in  the  Election  of  the  Pradhan  of  Gonda  Gird.  Third Is  socialist  Dr,  Madhuri  Kanchan  Sinha.  What  should  we  think  of hei  v.no  docs  not  possess  a  proper  mind,  She  quarrel;-;  with1  jawahar Lai  at  Allahabad.  II  is  just  like  fanning  a  storm.  Dandekar Mahraj  the  fourth  is  left  who  is  a  Swatantra  candidate.  This  man is  ver\  able,  and taO'-'ial. It  is  heard  that  he  is  I.C.S.  who  was  getting many  thousand  rupees  as  salary.  He  has  resigned  that  job  and  has come  out  to  serve  us.  The  vote  may  be  cast  in  his  favour.
TLamai.—Very well  tell  me  about  the  Assembly  seat  what  do  you  hear  in the  villages  and  market.  In  whose  favour  it  is  intended  to  cast votes.
Santu.—Who  does  not  know  about  Ishwar  Babu  who  muddled  the  Congress accounts.  The  vouchers  have  been  taken  away  by  monkeys-  It  was not  even  a  year  passed  that  Mahatma  Gandhi  died,  he  looked  for djiotker  door.  He  became  socianst  by  using  red  flag.  He  came  for tha  same  purpose  to  Motiganj  and  Hulsipur.  He  is  not  able  to  account for  thousands  of  rupees  of  the  two  schools  and  the  si.jiety  of  Gonda. This  is  why  he  was  ousted  from  the  Chairmanship  OJ: the  Municipal Board  and  has  been  ousted  from  the  society  recently.  He  contested the  M.L.A,  election  in  194tt,  1952  and  1055  and  lost.  He  also  lost  the Chairman  Election  of  the  District  Board.  He  is  contesting  apain Election  to  loose  it  because  it  is  clear  as  Ram  Lai  Gupta  Vakil  has become  Election  Incharge  and  to  cut  his  Congress  ticket.  Bapuji  has not  been  asked  and  as  such  you  may  understand  how  can  the  matter go  alright.  The  second  connected  person  is  Sri  Rameshwar  Dutt Tewari  Vaid  of  Retawan  Hindi  Mahasabha  and  the  third  is  Gomti Prasad  Yadav  Vakil  of  Socialist  party.
Rahiman.—With  hatred.  No  body  would,  like  these  two  persons.  Tell  me further.
Santu.—Very  well.  The  fourth  is  Dr.  Chaturdhan  Chowdhry  Jansangh,  This Is  the  rival  party  of  congress.  In  the  trouble  of  congress  Babu Sampurnanand  called  for  help  in  1957, Ram  Abhilakh  and  Dharampal Singh  who  were  elected  M.L.As.  from  the  Jansengh  ticket  from  my district  joined  congress.  Ishwar  Saran  called  for  help,  Ram  Shankar Jansangh  who  was  elected  as  member  o*  the  Municipal  Board  from Bankatwa  joined  congress.  Ram  Ratan  Gupta  called  for  help.  Raja of  Dhanepur  Jansangh  who  was  contesting  M.P,  election,  his  heart- trouble  increased  who  withdrew  himself.  At  the  residence  the yellow  flag  was  replaced  by  the  tri-colour  one.  You  can  see  it.

SEC  3(Ii)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  881
Moreover  Dr.  Chowdhry  is  the  Grand-son  of  Baldan  Chowdhry  to whom  it  is  heard  that  he  considered  it  below  his  dignity  to  partici- pate  in  others  functions,  He  used  to  send  his  sandals.
Tfamai.—Much  has  been  heard  about  them  I  do  not  wish  to  hear  more.  Is there  any  other  candidate?  Why  have  you  ^n-gcrtten  R&ghav  Ram Pandey7
Sintu.—Yes,  Pandeji  is  left  out.  He  is  contesting  ejection  a-?  Swatantra Party  candidate.  He  remains  for  the  whole  day  and  night  out  of his  house  to  serve  us.  It  is  not  known  at  what  Lime  he  takes  his food  and  sleeps.  This  is  why  in  1957  whon  his  Pattidar  Raja Dhanepur  with  red  cap  on  contested  M.L.A.  election  to  get  his  votes distributed  even  then  Lai  Behari  Tandon  President  Zila  Congress was  defeated  by  hundreds  of  votes  by  Janardan  and  got  his  brother elected  as  M.L.A.
Rahiman.—Well  done  Santu.  You  have  cleared  every  thing,  Now  we should  proceed  to  villages  and  make  these  propagandas  we  should  take cycle  and  money  from  Gupta  who  has  collected  money  after  sucking the  blood  of  labourers.  This  it!  not  the  Kanpur  Mayor's  election-— Phole  ghome  Mausi  we  arc  not  fools.  For  Parliament vote  Tor  N.  Dnndekar  and  for  assembly  mark  against  "Star"  symbol  "
Criticism  of  political  public  life  of  a  candidate  does  not  come  within  the purview  of  section  123(4)  of  the  Representation  of  People  Act.
II  has  been  held  in  Sudhir  Laxm-an  Hendre  Vs.  S,  A.  Dange  and  oilicrz—Vl E.L.R,  373,  as  follows: —
"The  principal  underlying  section  123(4)  of  the  Representation  of  the  People Act  is  that  in  order  to  come  within  the  ambit  of  the  corrupt  practice under  section  123(4)  of  tb-  Act,  there  must  be  a  false  staLenient  of fact  by  a  candidate  or  his  ^gent  which  is  made  in  relation  to  the personal  character  or  conduct  of  any  other  candidate.  Adverse criticism  however  severe,  however  undignified  or  ill-mannered  how- ever  regrettable  it  might  be  in  the  interests  of  purity  and  decency  ot public  life,  in  relation  to  the  political  views,  position,  reputation  or action  of  a  candidate,  would  not  bring  it  within  the  mischief  of  the statute.  The  Court  iu  such  matters  cunnot  judge  these  statements  in the  light  of  their  decency  or  desirability  in  so  far  as  they  are political  statements  not  calculated  to  attack  the  personal  character or  conduct  of  any  rival  candidate",
I,  therefore,  hold  that  the  statements  in  the  leaflets  mentioned  in  para  22  of the  Recriminatory  Petition  do  not  amount  to  allegations  against  the  personal character  of  Respondent  No.  1.
235.  Issue  Wo.  27.-—Respondent  No.  1  in  para  23  of  the  Recriminatory  Petition lias  alleged  that  between  the  period  commencing  from  6th  February  J ,J2 to  18th February  19G2  special  issues  of  Nagrik  wferc  distributed  m  the  constituency  by the  petitioner  and  with  his  consent  by  his  workers  and  .supporters.  In  the  special election  issue  of  Nagrik  (Annexure  VII)  and  dated  13th  February  1902 false  state- ments  regarding  the  personal  character  and  conduct  of  Respondent  No.  1  were made  which  he  and  his  agents  could  not  and  did  not  believe  to  be  true  and  that these  false  statements  were  reasonably  calculated  to  prejudice  the  prospects  of Respondent  No.  1 in  his  election.
The  petitioner  stated  that  in  the  issue  of  Nagrik  dated  6th  February  1962  and 13lh  February  1902,  articles  appear  to  have  been  published  therein  relating  to 'Respondent  No.  1.  He  denied  that  he  had  anything  to  do  with  the  printing  or publishing  of  the  articles.  He  denied  that  he  or  his  agents  or  workers  with  his consent  distributed  the  copies  of  the  said  papers  at  any  time  during  the  election in  any  part  of  the  constituency.  He  stated  that  the  Editor,  publisher  and  printer of  the  said  papers  were  at  no  time  his  agents  or  workers  or  supporter.  The allegations  of  corrupt  practice  contemplated "in  section  123(4)  of  the  Representa- tion  of  People  Act  were  denied  by  the  petitioner.
236.  Respondent  No.  1  examined  Swami  Nath  Tewari  (R.W.  23),  Tribhuan TJutt  Sharma  (R.W.  29),  Sheo  Prasad  (R.W.  30),  Jamuna  Prasad  (R.W.  32),  (R.W. 33),  Samokhan  (R.W.  34),  Shco  Lagan  (R.W.  35),  Bramha  Dutt  (R.W.  36),  Ram Dularey  (R.W.  41),  Kailash  Nath  (RW.  49),  Swarup  Chandra  (R.W.  49)  and Tripurari  Jaitly  (B.W. 60).

882  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PA"T  I I-
Swami  Nath  Tewari  fR.W.  231  has  deposed  that  about  20  copies  of  the  weekly- paper  Nagrik  was  distributed  by  him  at  Khargoopur  Bazar  which  is  Annexure VII  on  the  direction  of  the  petitioner.  When  questioned  In  cross-examination  he could  not  remember  on  which  date  or  dates  he  distributed  the  pamnhlets  about which  he  stated  before,  nor  could  he  remember  to  whom  he  distributpd  them.  He also  does  not  remembpr  how  many  days  prior  to  the  date  nf  poll  he  distributed  the pamphlets.  He  could  not  even  say  whether  it  was  5 days  before  or  10 days  before or  3 months  before  the  date  of  poll.
He  is  obviously  a  tutored  witness.  No  reliance  can  be  placed  on  his  testimony He  poses  as  petitioner's  worker  and  he  has  now  come  to  give  evidence  in  favour of  the  rival  party.  His  evidence  was  considered  while  dealing  issue  23  when  he was  disbelieved.
237,  Tribhuan  Dutt  Sharma  (R.W.  29)  says  that  he  worked  for  the  congress 'till  a  day  prior  to  the  date  of  poll  when  he  received  the  copy  of  Nagrik  similar to  Annexure  VII.  He  doe?  not  say  that  it  was  given  to  him  by  the  petitioner  for distribution.  Ho  says  that  one  Trilok  Singh  who  was  a  Swatantra  Party  worker had  given  it  to  him.  In  his  cross-examination  he  savs  he  was  a  member  of  the congress  for  the  last  45 years,  hut  after  reading  the  Nagrik  he  took  a  vow  to  work for  the  petitioner  and  to  oppose  Respondent  No,  1.  The  testimony  of  a  man  who can  so  easily  change  sides  is  worthless.  He  also  deposed  in  support  of  the  allega- tions  contained  in  Issue  No,  23, he  was  disbelieved.
He  is  telling  lies  when  he  says  that  he  was  given  copies  of  Nagrik  like Annexure  VII  by  Trilok  Singh.
Sheo  Prasad  (RW.  30>  also  says  that  he  was  a  congress  worker  till  one  day prior  to  the  date  of  poll,  when  he  was  given  three  parcHs,  like  Annexures  V,  VI and  VII  by  the  petitioner  in  his  village.  In  his  cross-examination  he  admits  that he  is  illiterate.  The  pamphlets  were  read  over  to  him  by  Sheo  Dayal  at  his house  where  he  had  gone  casually  to  drink  water.  Other  persons  present  there wore  Sita  Ram,  Tulsi  Ram,  Salig  Ram,  Kedar  Pandit  and  some  40  or  50  other persons  of  Lalpur  village.
None  of  these  persons  have  been  examined  to  corroborate  him.  He  -was examined  on  Issue  No.  21, he  was  disbelieved,  His  testimony  Is  not  reliable.  (See 10 E.L.R.  417).
Jamuna  Prasad  (R.W.  32)  stated  that  at  about  10  A.M-  Buddhoo  Khan,  Ragho •^nm  Pande.  and  the  petitioner  came  to  his  village  In  a  Jeep  and  distributed Pamphlets  like  Annexures  V,  VI  and  VII.  He  says  that  due  to  these  pamphlets Congress  was  a  loser  of  votes  to  a large  extent  as in  the  absence  of  these  pamphlets thev  would  have  all  voted  for  Congress;  an  absurd  story  which  it  is  difficult  to believe.
J-i  his  cross-examination  he  says  that  Annexure  VI  contained  all  allegation fhout  the  decree  for  Rs.  17,56,227/-  helng  passed  on  10th  May  I960  in  the  Court nt  Judge,  Bombay  against  Ram  Ratan  Gupta.  He  says  this  was  false.  This  was brought  to  his  knowledge  by  some  Congress  ni?n  inz.  Ram  Samujh  Misra  and Bechoo  Babu  at  Gonda.
The  above  statement  made  by  him  is  false  as  there  has  been  a  decree  against Respondent  No.  1 to  the  tune  of  Rs.  17 Lakhs  and  above.  His  evidence  on  Issue  23 was  disbelieved.
Ram  Sarnujh  Misra  nor  Bechoo  Babu  have  been  examined  by  Respondent  No.  1. The  entire  evidence  of  this  witness  is  a  tissue  of  lies  and  not  worthy  of  any credence.
The  evident'e  of  R. W.  33  who  posed  as  Nankau  need  not  be  considered  at  all. There  WHS  no  one  by  name  Nankau  in  the  employment  of  the  petitioner.  One Shyamadhar  was  tutored  and  examined  as  Nankau  as  Respondent  No.  l's  witness,
2^8,  Samokhan  (R. W.  34)  is  a  resident  of  village  Kochawa  in  Gonda  West Assembly  constituency.  He  savs  that  a  day  before  the  poll,  at  about  4  P.M., the petitioner  visited  his  village.  He  got  down  from  his  car  and  after  ascertaining  for whom  they  were  going  to  vote,  he  gave  them  issues  of  Nagrik  similar  to  Annexure V; f  and  asked  them  to  decide  after  reading  the  same.
 
It  is  highly  improbable  that  the  petitioner,  a  day  before  the  poll,  would engage  himself  in  distributing  the  pamphlets.  When  aiked  in  his  cross-examina- tion,  he  could  not  say  whether  the  Nagrik  Annexure  VII  Is  identically  the  same as  the  parchas  that  were  distributed.  He  could  not  say  what  were  the  dates  of

SEC  3(J1)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  883
the  Najtrlk  issues,  neither  he  could  give  the  names  of  the  persons  who  accompanied the  petitioner  when  he  went  to  his  village.  At  the  time  of  the  distribution  he  did not  make  any  enquiry  whether  the  allegations  against  Ram  Ratan  Gupta  were correct  and  without  making  any  such  enquiry  they  turned  against  him.  He  is unreliable,  he  has  been  apparently  telling  lies.
Sheo  Lagan  (R. W.  35)  says  he  was  asked  to  get  a  cycle  on  hire  for  distributing parchas  contained  in  a  bundle.  These  parchas  were  like  Annexures  VI  and  VII. His  evidence  on  issue  No.  26  regarding  the  distribution  of  pamphlet  Annexure  VI was  considered  and  he  has  been  disbelieved.  He  "poses  to  be  a  petitioner's worker  and  has  now  appeared  as  a  witness  for  the  rival  party.  No  reliance  can be  placed  on  his  testimony.  (See  19  E.L.R.  417).
Bramha  Dutt  (R. W.  36)  is  a  resident  of  village  Bhairampur  in  Gonda  West Assembly  constituency.  He  says  that  a  day  before  the  poll  at  about  4  P.M., th petitioner  visited  his  village  and  distributed  three  parchas.  He  does  not  identify the  parchas  that  were  alleged  to  have  been  distributed  by  the  petitioner.
No  reliance  can  be  placed  on  his  uncorroborated  testimony,
Ram  Dularey  (R. W.  41)'s  evidence  was  considered  in  respect  of  Issue  No.  24. He  was  disbelieved.  He  has  deposed  that  on  8th  February,  1962  he  was  asked by  the  petitioner  to  distribute  copies  of  Nagrik  issue  in  Gonda  North  Constituency. He  also  produced  Nagrik  dated  13th  February,  1962  when  he  was  In  the  witness box.  He  says  that  he  also  distributed  this  issue  of  Nagrik  and  told  the  persons regarding  the  speech  made  by  Pt.  Jawahar  Lai  Nehru  to  those  who  could  not read.  He  posed  as  a  petitioner's  worker  and  now  he  has  come  forward  to  give evidence  for  the  rival  party.  (See  19  E.L,R.  417),
He  is,  in  fact,  a  Congress  worker.  He  was  seen  in  the  Congress  camp  at Khargoopur  polling  station  by  Ram  Saran  (R, W.  57)  on  the  day  of  poll.
It  was  contended  on  behalf  of  Respondent  No.  1  that  Dularey  who  was  men- tioned  by  Ram  Saran  (R. W.  57)  was  a  different  person.  It  was  said  that  Ram Dularey  (R.W.  41)  was  an  accused  in  a  complaint  made  against  the  Swatantra party  workers  and  in  that  complaint,  the  name  of  Ram  Dularey's  father  was  men- tioned  as  Prabhat.  To  support  the  above  contention,  Respondent  No.  l's  election agent  filed  a  copy  of  the  report  with  an  application  and  affidavit.  On  careful examination  of  this  copy,  I  find  that  the  name  of  Ram  Dularey's  father  has  been mentioned  "Afrvat"  meaning  "not  known".  It  is  clear  that  Ram  Dularey  (R.W. 41)  was  not  the  person  named  in  the  complaint.
He  has  been  telling  lies  when  he  says  that  he  worked  for  the  petitioner  and distributed  the  issues  of  Nagrik  at  his  instance.
His  evidence  on  Issue  24  was  disbelieved.  (See  19  E.L.R.  417).
239.  Kailash  Nath  (R. W.  46)  is  a  resident  of  Khargoopur  which  is  in  Gonda North  constituency.  He  says  that  after  the  speech  of  the  Prime  Minister,  10  to  12 days  before  the  poll,  copies  of  parchas  were  distributed  on  10th  February,  1962 which  were  similar  to  Annexure  VII  and  those  distributed  on  18th  February,  1962 were  similar  to  Nagrik  dated  13th  February,  1962  (Ex.  P.  219A).  He  says  that he  worked  for  the  Congress  part*r  in  the  election  and  when  parchas  like  Armexure VII  were  distributed,  he  had  sufficient  opportunity  to  Impress  upon  the  public  that the  allegations  contained  in  the  parcha  were  wrong.  He  admits  that  he  could have  easily  washed  away  the  bad  effects  which  .werp  created  in  the  minds  of  the public  by  the  distribution  of  these  parchas  (he  evidently  means  Nagrik  dated 6th  February,  1962).
He  further  says  that  when  the  copies  of  Nagrik  dated  13th  February,  1962  were distributed,  he  had  no  time  to  let  the  public  know  that  the  facts  contained  in  those copies  were  false.
From  the  nature  of  his  replies  to  questions  put  to  him  in  his  cross-examination It  Is  abundantly  clear  that  he  is  a  Respondent  No.  1's  man.  He  has  given  evasive answers  throughout  to  the  questions  put  to  him  with  regard  to  the  allegations made  in  Nagrik  Annexure  VII  (See  paras  5  to  13  of  his  deposition).
No  reliance  can  be  placed  on  his  statements.
 
240.  Swarup  Chandra  (R.W.  49)  says  that  at  about  ,3  P.M. one  day  before  the date  of  poll,  he  met  Ram  DuJarey  of  Khargoopur  who  handed  over  10  copies  of Nagrik  issue  dated  J3th  February,  1962  to  him  for  distribution.  He  says  he distributed  them  In  his  village  Kamrawa.  The  testimony  of  Ram  Dularey

gg4  T HR tin./XTtr,  OV  JTiJA  EXTRAORDINARY  [PART  I I-
(R  W.  4))  has  been  disbelieved.  He  does  not  say  that  he  gave  any  Issue  of  the Nagrik  dated  13th  February,  1962  to  R.W.  49  for  distribution.
Swarup  Chand  (R, W.  49)  is  evidently  telling  lies  that  he  distributed  the  Issue of  Nagrlk  given  to  him  by  Ram  Dularey.  In  fact  Ram  Dularey  could  not  have distributed  any  of  the  copies  of  Nagrik  as  he  was  a  Congress  worker.
I  find  that  Respondent  No.  1 has  failed  to  show  that  the  copies  of  Nagrik  dated 6th  February,  1962  and  13th  February,  1962  were  distributed  by  the  petitioner  or with  his  consent  by  his  workers  at  the  time  of  the  election.
241.  The  Nagrik  dated  6th  February,  1962  (Annexure  VI)  mentions  that  they were  printed  in  Kanpur  and  published  by  P.  C.  Kapoor.  The  name  of  the  Editor is  given  as  Kamal  Gupta.
There  is  no  evidence  on  record  to  show  that  the  petitioner  was  the  author  of the  contents  in  these  news-papers,  neither  there  is  anything  to  show  that  they were  written  with  the  knowledge  and  consent  of  the  petitioner  or  that  the  editor was  acting  as  the  agent  of  the  petitioner  in  connection  wih  his  election  and  that too  with  his  consent.
The  entire  evidence  of  R. W.  33 has  been  rejected  for  the  reasons  already  given.
In  Ndni  Gopal  Svaw-i  Vs-  Abdul  Hamid  Choudhury  and  another—19 E.L.R.  175, It  has  been  held  as  follows: —
"If  an  offending  article  appears  in  a  paper,  which  is  proved  to  have  circula- tion  and  is  read  by  the  public,  this  would  be  sufficient  publication  in the  eye  of  law  to  constitute  corrupt  practice  within  the  meaning  of the  Act,  provided  It  is  also  found  that  the  said  publication  was  at  the instance,  or  with  the  consent,  of  the  candidate  or  his  Election  Agent. The  real  point  of  the  decision  in  Maulana  Abdul  Jalil  Choudhury  Vs. Rathlndra  Nath  Sen  (13  E.L.R.  290)  was  that  the  publication  must  be proved  to  be  with  the  consent  of  the  candidate.
In  order  to  fasten  the  liability  of  the  editor's  act  on  a  candidate,  it  is necessary  to  establish  that  the  editor  was  acting  as  an  afent  of  the candidate  in  connection  with  the  election  and  that  too,  with  his  con- sent.  Mere  action  of  the  editor  beneficial  to  the  candidate  would  not be  enough  to  prove  that  he  was  acting  as  an  agent  In  connection  with the  candidate's  election;  further  It  should  also  be  proved  that  he  was doing  the  alleged  act  with  the  consent  of  the  candidate".
242.  In  the  Nagrik  of  6th  February  1962  (Annexure  VII)  there  is  a  caption "Ram  Ratan  Gupta, ki  har  Congress  aw  uske  siddhanton  ki  jeet  hogi".
Under  this  caption  there  are  detailed  references  to  several  items  relating  to  the nomination  of  Respondent  No.  1,  his  political  career  aa  well  as  anti-social  acts,  as given  below:—•
(1)  Ticket  kalse  mil a. (2)  Congress  birodhi  Lala  Ji. (3)  Congress  ke  janm  ]at  blrodhi. (4)  Ek  Mahatvpurn  udaharan. (5)  Gupta  Ji  ki  Jiwnl;  Congress  birodh  kl  kahanl. (6)  Shuroo  se  hi  dwand  phand. (7)  Paden  sadaayata  ka  rahasya. (8)  Desh  drohita  ka  praman. (9)  Bahuroopiya.
(10)  Ausarwadi  Guptajl. (11)  Samaj  birodhi  karya. (12)  Congress  ke  jail  member. (13)  Kanpur  Mahffcallka  bhi  kalanklt. (14)  Chunao  kl  chalbaziyan. (15)  Khull  ausarwadita.
Out  of  the  above  Items,  only  item  No.  11  refers  to  his  anti-social  activities namely  black-marketing  and  evasion  of  payment  of  Income-Tax.
In  the  Nagrik  dated  13th  February,  1962  (Ex.  R.  219A)  there  Is  an  article under  the  caption  "Lala  Ram  Ratan  Gupta  par  lakhon  ka  sarkari  qarza".

SEC.  3(ii)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  885
It  contains  the  following  items  which  refer  to  Respondent  No.  l's  personal •character:-—
(1)  Mill  Malik  kalse  bane. (2)  Larai  ki  Kamai. (3)  Lala  ji  ke  Bank  ka  diwala. (4)  Bima  Company  ki  digree, (5)  Sampati  kurk;  Giraltari  kl  darkhwast. (6)  85  lakh  ka  Qarza. (7)  Congressi  netaon  ki  kripa.
243.  Nagrik  dated  flth  February,  1962  begins  with  the  caption  "GONDA  KE BACHHE  AUR  IMANDAR  CONGRESS-JANO  KA  KARTAVYA"  RAM  RATAN GUPTA  KI  HAR  CONGRESS  AUR  USKE  SIDDHANTON  KI  .IEET  HOGI".  The publication  in  Hindi  under  item  11  In  relation  to  the  personal  character  of  Res- pondent  No.  1  is  to  the  following  effect:—
He  concealed  his  income  to  avoid  Income-tax.  Government  got  clue  about  it but  could  not  catch  him.
He  was  involved  in  profiteering  and  black-marketing.
SpeciaJ  police  raided  his  office  and  residence  and  seized  account  books  and •certain  documents.
Late  Govind  Ballabh  Pant,  who  was  then  Chief  Minister  of  Uttar  Pradesh,  did not  like  the  activities  of  Respondent  No.  1  and  he  could  not  get  congress  ticket  in his  life  time.
Case  of  Respondent  No.  1 was  enquired  by  special  Income-tax  commission,  who found  him  guilty  of  tax  evasion  of  a  larfie  amount  of  Income-tax  and  he  was directed  to  pay  the  same  which  he  has  not  done.
As  soon  as  Dr.  Sampurna  Nand  became  the  Chief  Minister  of  Uttar  Pradesh, Respondent  No.  1  appointed  Dr.  Sampurna  Nand's  younger  brother  as  his  private Secretary.
Later  on,  after  the  defeat  of  Dr.  Sampurna  Nand,  when  Sri  Chandra  Bhan •Gupta  stepped  in,  Respondent  No.  1  joined  hands  with  him.
244,  Natfrik,  dated  13th  February  1962  (Ex,  R.  219A)  beeins  with  the  cap;..-. "EK  CONGRESSI  UDDHOGPATI  KI  VASTAV1K  KAHANI".  In  this  Nagrik, dated  13th  February  1962!  (Ex.  R.  219A)  the  publication  in  Hindi  in  relation  to the  personal  character  and  conduct  of  Respondent  No.  1  is  to  the  following effect: —
He  purchased  Laxmi  Ratan  Cotton  Mills,  started  by  L.  Kamlapati  in  Kanpur in  which  Respondent  No,  1  was  taken  as  a  partner.  After  the  demise  of  Kamla- patiji,  a  dispute  arose  between  his  sons  and  Respondent  No.  1  in  the  result Eespondent  No,  1  became  the  sole  proprietor  of  the  said  Mill.
In  order  to  expand  his  business,  Respondent  No.  1  purchased  Empire  Life Insurance  Company  and  Discount  Bank  of  Bombay,  of  which  he  became  Chair- man  of  the  Board  of  Directors.  He  utilised  the  money  of  the  Empire  Life  Insur- ance  Co.  for  his  personal  projects  and  projects  of  his  friends  and  relations-  He transferred  large  amount  of  money  of  the  Empire  Insurance  Co.  to  his  Discount Bank  between  the  years  1946  and  1950.  On  the  objection  by  Government  of  India, Respondent  No.  1  executed  an  agreement  that  in  case  the  Discount.  Bank  troes into  liquidation,  he  will  be  personally  liable  for  the  amount  of  the  Empire  Life Insurance  Co.  Subsequently,  the  Discount  Bank  went  into  liquidation,  at  that time  it  had  Rupees  fifteen  lacs  five  thousand  two  hundred  seventy-seven  of  the Empire  Insurance  Company  In  deposit  with  it.  In  1959  Insurance  Company  sued Respondent  No.  1  for  this  amount  in  the  High  Court  of  Bombay,  Respondent No,  1  denied  his  liability  in  spite  of  the  agreement.  Meanwhile  Life  Insurance Corporation  took  over  the  Insurance  Co.  and  obtained  a  decree  to  the  tune  of Rs-  17,56,277/-  against  Respondent  No.  1.  This  decree  is  being  executed  in  the court  of  the  District  Judge,  Kanpur  and  properties  of  Respondent  No.  1 had  been attached  in  execution  thereof.
 
Respondent  No.  1  having1  failed  in  his  attempt  to  quickly  amass  large  fortur^ found  himself  in  financial  difficulties.  He  returned  to  this  State  when  B.  Sampurna

886  THE  GAZETTE  OF  INDlA  EXTRAORDINARY  [PART  I I-
Nand  was  the  Chief  Minister  of  Uttar  Pradesh  and  C.  B.  Gupta  was  the  Minister for  Industry.
In  1956  the  Government  of  Uttar  Pradesh  advanced  a  loan  of  Rs,  50  lakh<;
to  Respondent  No.  1  for  his  Engineering  firm,  namely  Laxmi  Ratan  Engineering Works.  At  that  time  the  entire  assets  of  thia  Company  were  only  of  the  value of  Rs.  12,37,320/-  and  one  of  the  Directors  of  this  Company  was  B.  Sampurna Nand's  younger  brother  Sri  Paripurna  Nand  Verma.
Five  years  have  elapsed  for  the  above  loan,  but  it  has  not  been  repaid.  It was  to  be  repaid  by  instalments  from  1958,  but  not  only  the  instalments  are  in arrears  but  the  interest  on  the  loan  also  has  not  been  paid.  In  the  result,  Respon- dent  No.  1 is  indebted  to  the  Government  of  Uttar  Pradesh  to  the  tune  of  Rs.  65 lakhs.
Respondent  No-  1 has  been  fined  Rs. 2,500/-  for  contravening  Foreign  Exchange Rules.
245.  Respondent  No.  I  has  not  gone  in  the  witness  box  to  state  about  the  falsity of  the  allegations  against  his  conduct  or  character  appearing  in  the  two  issues of  Nagrik.  It  was  contended  on  behalf  of  Respondent  No.  1  that  publication relating  to  Respondent  No.  1  was  false  and  burden  of  proof  to  show  that  it  was not  false  was  on  the  petitioner.
Reliance  was  placed  on  22  E.L-R.  385,  in  which  it  was  laid  down  that  where the  allegation  concerns  the  character  of  a  person,  the  ordinary  presumption  of law  that  a  person  must  be  presumed  to  be  innocent  will  apply  and  the  burden would  be  upon  the  person  who  has  made  defamatory  allegations  against  the character  of  another  to  prove  that  they  are  true,
I  am  unable  to  follow  the  above  ruling  as  there  are  preponderance  of  deci- sions  holding  the  opposite  view  namely  In  such  cases  the  ourden  lies  on  the person  who  contends  that  the  statement  of  facts  relating  to  his  personal  character or  conduct  is  false.
In  Biswanath  Upadhya  Vs.  Haralal  Das  and  others—16  E.L.R.  405,  it  has  been held  as  follows: —
"The  burden  of  proving  that  the  statements  contained  in  an  article  are  false lies  on  the  petitioner.  Where  the  petition  is  based  on  the  ground that  false  allegations  have  beeri  made  in  relation  to  the  conduct  of the  petitioner  as  a  candidate  which  amount  to  corrupt  practice,  the petitioner  should  deny  on  oath  the  truth  of  the  allegations  made against  him  and  his  failure  to  do  so  may  give  rise  to  a  presumption against  him".
In  Sardar  Gurbaksh  Singh  Vs. Gurdial  Singh  and  another—A.I.R.  1927  P.C- 230, it  has  been  held  as  follows: —
"The  practice  of  not  calling  the  party  as  witness  with  a  view  to  force the  other  party  to  call  him,  and  so  suffer  the  discomfiture  of  having him  treated  as  his,  (the  other  party's)  own  witness  is  a  bad  and degrading  practice.  32  Alld.  104  ( P .O  Ref-  The  true  object  to  be achieved  Court  of  Justice  can  only  be  furthered  with  pro- priety  by  the  testimony  of  the  party  who  personally  knowing  the whole  circumstances  of  the  case  can  dispel  the  suspicions  attaching to  it.  The  story  can  then  be  subjected  in  all  its  particulars  to  cross- examination".
See  also  A.I.R.  1954  Patna  280—
A.I.R.  1957  Allahabad  346.
In  Kama!  Distillery  Co.  Ltd.  and  others  Vs.  Ladli  Parshad  Jaiswal  and1 another—A.I.R.  1958  Punjab  190,  it  has  been  held  as  follows: —
"It  is  the  bounden  duty  of  a  party  personally  knowing  the  facts  and circumstances  of  the  case,  to  give  evidence,  and  to  submit  to  cross- examination.  Courts  have  rightly  drawn  a  presumption  against  the party  avoiding  the  witness  box,  and  not  submitting  himself  to  cross- examination.  The  party  who  does  not  enter  the  witness-box  runs a  great  risk  of  a  presumption  being  drawn  against  mm  .
246  Respondent  No.  l's  witness  Tripurari  Jaitly  (R.W.  60)  was  his  political
Secretary  for  12  years  till  the  end  of  1961.

SEC.  3(ii)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  gg7
In  para  18  of  his  cross-examination  he  admits  that  there  la  a  decree  lor  over Rs.  17  lakhs  in  favour  of  Life  Insurance  Corporation  against  Ram  Ratan  Gupta He  adds  that  an  appeal  had  been  filed  against  the  above  decree,  but  he  does  not know  whether  the  appeal  has  been  dismissed  by  the  Bombay  High  Court-  He denies  knowledge  as  to  the  fact  which  led  to  the  passing  of  the  above  decree against  Ram  Ratan  Gupta.
He  admits  that  a  fine  was  Imposed  on  Ram  Ratan  Gupta  for  breach  of  Foreign Exchange  Rules  In  1959-60.  He  adds  that  an  appeal  is  pending  against  the  order in  the  Supreme  Court.  He  admits  in  para  23  of  his  deposition  that  during  the World  War  II,  amongst  the  business  of  Ram  Ratan  Gupta,  there  were  Lakahmi Ratan  Cotton  Mill,  Termol  Welding,  but  he  is  not  aware  of  any  other  business. He  admits  that  in  Lakshmi  Ratan  Cotton  Mill,  Sir  Padampat  Singhania  also  had shares.  The  relations  between  Ram  Ratan  Gupta  and  the  family  of  Sir  Padampat Stnchanla  became  strained  after  World  War  II.  There  was  an  arbitration  end  as a  result  of  that  the  whole  of  Lakshmi  Ratan  Cotton  Mill  went  to  the  share  of Ram  Rattan  Gupta,  sometime  in  1947.
He  also  admits  in  para  16  of  his  deposition  that  Ram  Ratan  Gupta  was  the shareholder  of  Empire  of  India  but  denies  knowledep  whether  he  had  controlling share  in  that  Company.  He  also  admits  that  Ram  Ratan  Gupta  was  a  shareholder of  the  Discount  Bank,  but  does  not  know  whether  he  had  a  controlling  share  in  that Bank.  He  admits  that  the  Discount  Bank  has  gone  into  liquidation  and  that  a large  amount  of  money  o'  the  Empire  of  India  was  deposited  in  the  Discount  Bank Ltd.,  but,  subsequently,  he  adds  that  Ram  Rat^n  Gupta  when  he  held  shRri";  in Jhose  Companies,  he  was  thf  Chairman  of  the  Board  of  Directors  of  the  said  two Companies,  in  or  about  1950-31,  but  denies  knowledge  whether  Government  of India  raised  objection  to  the  deposits  of  the  Empire  of  India  Into  the  Discount Bank  Ltd.
He  admits  that  Rs.  50  lakhs  were  given  as  loan  by  the  U.P.  Government  to  the Lakshmi  Ratan  Engineering  Works  Ltd.  In  the  year  1957-5B,  but  he  does  rot know  whether  the  above  loan  was  to  be  repaid  by  Instalments.
When  questioned,  he  denied  knowledge  how  much  money  was  paid  In  the  books of  Ram  Ratan  Gupta  towards  Employees  State  Insurance  and  Provident  .tuna account.
It  Is  clear  from  the  admissions  of  Tripurari  Jaitly  (R.W.  60)  that  some  of  the facts  regarding  financial  dealings  of  Ram  Rattan  Gupta  published  in  the  two  Nsgrik are  true.  In  respect  of  the  other  publication,  Tripurari  Jaitly  (R.W.  80)  had  either denied  knowledge  or  gave  evasive  reply.
Rama  Nath  Mlsra  (R.W.  1)  who  is  election  agent  of  Respondent  No.  1  admits that  Sri  Paripurna  Nand  Verma  lives  in  Kanpur  and  says  "I  think  he  is  a  Director in  Lakshmi  Ratan  Engineering  Works,  In  which  Respondent ft o.  1 Is  a  shareholder.
Under  the  circumstances,  it  was  incumbent  on  Respondent  No.  1  to  enter  the witness  box  to  give  evidence  about  the  falsity  oi  the  allegations  appearing  in the  two  issues  of  the  Nagrlk.  He  took  as  action  against  the  publisher  and  printer oC this  weekly  paper,
247.  Petitioner  on  the  other  hand  has  filed  documents  which  go  to  prove  the truth  of  many  of  the  above  allegations  referred  to  In  paragraphs  243  and  244  of /he  judgment.
(i)  Ex,  P.  127  Is  a  judgment  of  High  Court  of  Judicature  Bombay,  dated 7th  March.  IPfiO.
(ii)  Ex.  P.  128  is  the  copy  of  the  decree  for  the  sum  of  Rs.  17,36.227'94  nP.
against  Respondent  No,  1. The  judgment  of  the  High  Court,  Bombay  shows  that  the  suit  \ras brought  against  Respondent  No.  1  by  Life  Insurance  Corporation  to enforce  indemnity  bond  executed  on  9th  March  1949  in  favour  of •the  Empire  of  India  Life  Assurance  Co.,  wherein  Respondent  No.  1 undertook  the  obligation  to  pay  to  the  company  various  sums  of money  deposited  by  the  Company  from  time  to  time  in  the  Discount Bank  of  India  Ltd.  in  the  current  or  Fixer!  Deposits  accounts  and which  were  outstanding  at  the  date  of  the  Indemnity  bond  not  exceeding the  sum  of  Es.  18,91,931/-.
Respondent  No,  I  raised  various  contentions  which  were  negatived =ind  a  decree  for  a  sum  of  Rs.  17,dM.227"94  nP.  mentioned  in  Ex. P.  128  was  passed  against  him.

888  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  II-
(iii)  Ex.  P.  130,  P.  131, P.  132  and  P.  133  relate  to  the  execution  proceedings against  Respondent  No.  1  for  recovery  of  the  decretal  amount  passed in  favour  of  the  Life  Insurance  Corporation.
(lv;  Ex.  P,  126  is  the  copy  of  paragraph  153(b)  (i)  of  the  Audit  report  1963 regarding  delay  In  recovery  of  loan  from  M/s.  Lakshmi  Ratan  En- gineering  Works  Ltd.,  Bombay.
It  shows  that  in  March  1958  Government  sanctioned  a  loan  of Rs.  50  lakhs  to  M/s.  Lakshmi  Ratan  Engineering  Works  Ltd.,  Bombay, for  setting  up  a  factory  for  the  manufacture  of  textile  machinery  and its  parts  in  the  State  of  Uttar  Pradesh.  The  ]pan  carried  interest  of 5  per  cent  per  annum  and  was  repayable  in  10  yearly  ecmated  instal- ments  of  Ra.  9,79,899/-  each  commencing  from  the  28th  March  1958 Against  the  rive  instalments  of  Rs.  G,79,899/-  each  due  from  1958,  only a  sum  of  Rs.  13,13,490/-  was  paid  during  1961-62.  A  total  sum  of Rs.  22,65,064/-  on  account  of  overdue  instalments  was  outstanding  on the  28th  March  1962.
(vj  Ex.  R.  217  is  a  copy  of  the  order  in  appeal  before  the  Foreign  Exchange Regulation  Appellate  Board.  The  appeal  was  filed  by  Respondent  No. 1 against  the  order  of  the  Director  of  Enforcement  holding  that  the Respondent  No.  l  had  contravened  the  provisions  of  section  4{1)  &nd 4(3)  of  the  Foreign  Exchange  Regulation  Act,  1947,  by  maintaining  and operating  accounts  in  foreign  currency  in  the  branches  of  the  Chartered Bank  of  India,  Australia  and  China  at  Hong  Konp.  Osaka  and  Tokyo without  the  general  or  special  permission  of  the  Reserve  Bank  of  India. The  appeal  was  dismissed  and  the  order  of  the  Director  of  En- forcement  for  the  penalty  imposed  was'  maintained.
248.  From  the  above  documents  filed  by  the  petitioner,  it  has  been  established •hat  there  was  a  decree  for  a  sum  of  Rs.  17,56,227 • 94  nP.  in  favour  of  Life Insurance  Corporation  against  Respondent  No.  1.  The  decretal  amount  comprised of  the  sums  of  money  deposited  by  the  Empire  of  India  Life  Assurance  Co.,  of which  Respondent  No.  1 was  a  Director  from  time  to  time,  in  the  Discount  Bank  of India  Ltd.,  of  which  also  Respondent  No.  1  was  a  Director.  Execution  proceedings for  the  recovery  of  the  decretal  amount  against  Respondent  No.  1 had  been  started in  the  court  of  the  District  Judge,  Kanpur  and  property  attached.  The  State  of Uttar  Pradesh  advanced  a  loan  of  Rs.  50  lakhs  to  the  Respondent  No.  1  In  the year  1958  to  Lakshmi  Ratan  Engineering  Works  Ltd.,  Bombay,  in  which  Respondent No.  1  is  one  of  the  Directors.  This  amount  is  to  be  repaid  by  annual  instalments. On  20th  March  1R62  a  total  sum  of  Rs.  22,56,064/-  on  account  of  over  due  five instalments  was  outstanding.  It  has  been  provided  that  Respondent  No.  1  was fined  for  the  breach  of  Foreign  Exchange  Regulations.
249.  Issue  No.  28.—Respondent  No.  1  in  para  28  of  the  recriminatory  petition has  alleged  that  the  petitioner  and  his  agents,  workers  and  supporters  with  his knowledge  and  consent  hired  and  procured  bullock  carts  and  other  vehicles  tor conveyance  of  the  electors  of  a  number  of  villages  to  the  Polling  Stations  and back  to  the  said  villages  on  the  date  of  poll.  The  details  and  particulars  about bullock  cart  owners,  whose  carts  were  hired  and  procured,  the  names  of  the  agents and  persons  who  hired  these  bullock  carts  and  vehicles  and  the  names  of  villages from  which  the  voters  were  conveyed  to  the  polling  station  are  given  in  Annexure VIII.
The  petitioner  stated  that  no  vehicles  or  conveyances  were  ever  hired,  pro- cured  or  obtained  for  carrying  voters  to  and  from  the  polling  stations  in  any  part of  the  constituency  either  by  him,  his  election  agent  or  with  their  consent  by  any persons  interested,  in  furthering  the  prospects  of  the  petitioner's  election.  The particulars  given  in  Annexure  VIII  were  denied.
250  Respondent  No.  1  examined  Swami  Nath  (R.W,  23),  Dr.  Mohd.  Umar (RW  24),  Gau  Saran  (R.W.  25),  Salaroo  (R.W.  26),  Sushil  Chandra  (R.W.  27), Bhlkiram  (R.W.  28),  Bachchoo  Ram  (R.W.  31),  Sheo  Prasad  (R.W.  44),  Ram  Sagar (R.W.  45),  Swamp  Chand  (R.W.  49),  Ram  Saran  (R.W.  57).
 
Swami  Nath  (R.W,  23)  snvs  that  he  worked  for  the  petitioner  during  the election  and  was  posted  at  Kamrawa  polling  station.  He  further  says  that  he was  asked  by  the  petitioner  to  get  some  bullock  carts  on  hire  for  bringing  voters tti  the  polling  booth.  He  employed  three  bullork  carts  for  the  said  purpose  and names  Ranchhor,  Ram  Sagar"  and  Ramphere  as  the  owners  of  the  said  bullock carts.  Names  of  the  persons  who  hired  the  bullock  carts  have  not  been  mentioned in  Annexure  VIII.  Swami  Nath  must  have  been  tutored  subsequent  to  the  filing of  Annexure  VIII  to  support  the  case  of  Respondent  No,  1.  Ramphere's  name

SEC.  3(H)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  ggg
also  does  not  appear  in  Annexure  VIII.  Date  and  time  of  hiring  also  has  not  bee: mentioned  by  this  witness.
In  para  10  of  his  cross-examination  he  admits  that  at  the  time  of  the  poll  h was  at  Siraj  Ahmed's  camp.  The  bullock  carts  were  coming  up  to  the  Swatantr Party  camp  which  was  by  the  side  of  Siraj  Ahmad's  camp.  No  worker  or  agen of  any  of  the  candidates  made  any  objection  in  writing  to  the  Presiding  Office of  the  polling  booth  about  the  conveyance  of  voters  in  bullock  carts.
Name  of  this  witness  does  not  appear  in  Annexure  VIII  although  he  noses  t be  petitioner's  worker.  No  reliance  can  be  placed  on  his  testimony.
251.  Dr.  Mohd,  Umar  (R.W.  24)  says  that  he  received  money  from  the  petltione lor  engaging  bullock  carts  to  bring  voters  upto  the  polling  booth.  He  himsel used  his  cart  for  that  purpose  for  which  he  took  Rs.  5,  Voters  were  brough from  village  Imilia  upto  Khargoopur  Bazar.
In  para  ] 1  of  his  cross-examination  he  stated  that  mostly  Muslim  women  anc old  Muslim  voters  were  carried  in  his  bullock  cart,  but  he  could  not  say  how  man; trips  were  made.  He  further  says  that  the  cart  used  to  halt  at  a  distance  of  1! or  20  paces  from  the  camp  of  Siraj  Ahmad,  and  the  voters  who  came  by  thii cart  got  the  identification  slips  prepared  in  the  camp  of  Siraj  Ahmad.
It  has  been  held  that  Siroj  Ahmad  was  not  set  up  by  the  petitioner  (vidt •Issues  14.  15),  He  poses  to  be  petitioner's  worker  during  election  but  has  now come  to  give  evidence  for  the  rival  candidate.  He  is  obviously  telling  lies  tha he  hired  bullock  cart  for  carrying  the  voters  of  the  petitioner.  None  of  tht voters  alleged  to  have  been  taken  in  his  cart  have  been  examined  to  corroborate him,  I  disbelieve  his  evidence.
252.  Gau  Saran  (R.W.  25)  is  a  resident  of  Intiathok.  He  says  that  on  the  date of  poll,  he  was  at  Aya  polling  station  where  he  saw  some  bullock  carts  bringing voters  from  different  places  to  the  polling  station  for  the  petitioner.  Out  oJ these  bullock  carts  one  belonged  to  Kantidhar  Shukla  and  the  other  to  Riasai Khan,  father  of  Dr.  Siraj  Ahmad.
Siraj  Ahmad  was  himself  a  candidate  and  the  bullock  cart  of  Riasat  Klian,  ii engaged  at  all,  must  have  been  for  Siraj  Ahmad.  Kantidhar  Shukla,  the  alleged owner  of  the  other  bullock  cart  has  not  been  examined,  to  corroborate  him.
I  place  no  reliance  on  this  witness.  He  posed  to  be  a  supporter  of  the Swatantra  party  and  he  has  now  come  to  give  evidence  for  the  rival  candidate.
253.  Salaru  (R.W.  26)  is  a  resident  of  Intiathok,  He  says  that  on  tHe  date  of poll  he  went  to  Aya  polling  station  and  saw  bullock  cart  of  Riasat  Khan  bringing voters  to  Swatantra  party  camp  from  different  places.
In  his  cross-examination  he  says  that  on  the  date  of  poll  he  visited  polling stations  Intiathok,  Kalaina  and  Aya.  In  Intiathok  polling  station  he  was  present [from  12  noon  to  2  P.M.  on  the  date  of  poll.  He  was  at  Kalaina  from  2,30  P M. to  4,30  P.M.  or  5 P.M.  From  Kalaina  he  went  back  to  his  house  and  then  went  to the  polling  station  Aya,  at  about  3  P.M.
He  maintains  that  when  he  reached  Aya  polling  station  the  following  day, the  casting  of  votes  was  going  on  and  he  saw  voters  coming  on  bullock  carts  to the  petitioner's  camp.  This  is  obviously  false.  He  also  poses  as  petitioner's worker  and  now  appeared  as  Respondent  No.  l's  witness.  His  evidence  is  rejected as  untrustworthy.
254.  Sushil  Chandra  (R.W.  27)  says  that  his  father  Ranchhor  owns  a  bullock cart.  On  the  date  of  poll  at  Kamrawa  polling  station  his  uncle  Rampat  ertcd  as a  polling  agent  for  the  petitioner  and  this  bullock  cart  was  hired  thai  day  for bringing  voters  from  different  places  He  used  to  bring  the  voters  in  *his  earl and  they  used  to  get  down  near  the  camp  of  the  petitioner  at  a  distance  of  about 100  yards.
Name  of  hirer  is  not  given  in  Annexure  VIII.  In  his  cross-examination  he says  thai  nonf  of  1he  workers  ox  Congress,  Jan  Sangh  or  Hindu  Mahusabh"  I  TISPCI any  objection  to  the  voters  being  brought  in  bullock  carts.
He  soys  that  mostly  women  voters  were  brought  in  his  cart,  but  he  could  not give  the  names  He  could  not  give  the  names  of  the  male  voters  nor  did  he  know whose  voters  they  were.

800  THE  GA/ETTK  OF  INDIA  EXTRAORDINARY  FPAAT  I I-
No  reliance  can  be  placed  on  his  evidence.  It  is  difficult  to  believe  that workers  of  other  candidates  could  have  kept  auiet  had  the  voters  been  brought  in the  bullock  carts  as  alleged  by  this  witness.  Moreover,  he  himself  does  not  know whose  voters  he  brought.
255.  Bhiki  Ram  (R.W.  2<8)  is  a  resident  of  Nausahra.  He  says  that  his  bullock cart  was  hired  by  the  petitioner  on  the  d\y  of  poll  and  he  made  about  10  to  20 trips  for  which  he  was  paid  by  the  petitioner.
In  his  cross-examination  he  says  that  Nausahra  is  2 or  3  rurlongs  from  Khargoo- pur  Imilia,  No  one  objected  to  the  voters  being  brought  in  a  cart.  It  is difficult  to  believe  that  the  bullock  cart  will  be  hired  for  carrying  the  voters from  Nausahra  to  Khargoopur  Imilia  for  a  distance  of  only  2  or  3  furlongs.  He says  that  his  bullock  cart  was  hired  2  or  3  days  before  the  date  of  election.  This iis  in  contradiction  to  what  is  alleged  in  para  24  of  the  recriminatory  petition Where  it  is  stated  that  bullock  carts  were  hired  on  the  date  of  poll.
,'i  This  witness  is  obviously  telling  lies.  He  is  disbelieved.
256.  Eachchoo  Ram  (R.W.  31)  says  that  his  bullock  cart  was  engaged  by  the petitioner  for  Rs.  7  for  bringing  voters  from  the  village  Aya  to  Aya  poiling station.  According  to  him,  his  bullock  cart  was  engaged  5  or  6  days  before  the date  of  poll.
Respondent  No.  l's  allegation  is  that  the  bullock  carts  were  hired  on  the  date of  poll.  This  witness  is  obviously  telling  lies.  His  name  does  not  appear  in Annexure  VIII.  He  is  a  tutored  witness.  No  reliance  can  be  placed  on  his  evi- dence.
257.  Sheo  Prasad  (R.W,  44)  has  deposed  that  Padumnath  who  worked  for  the petitioner  at  Babhani  Sarai  polling  station  asked  him  to  get  two  bullock  carts  on hire.  He  says  that  he  hired  the  bullock  carts  of  Chhedi  and  Kallu  Dhobi  who were  paid  Rs.  5  each.  These  bullock  carts  brought  voters  from  villages  Tendua, Chaukharia  and  Akbarpur  upto  Babhani  Sarai  polling  station.
In  his  cross-examination  he  admits  that  Padumnath's  house  is  at  a  distance of  1J  to  2 furlongs  from  Tendua.  Padumnath  knew  both  Chhedi  and  Kallu  Dhobi. In  view  of  the  above  admission,  it  is  difficult  to  believe  that  Padumnath  would ask  him  to  engage  the  bullock  carts  of  these  two  persons  whom  he  himself  knew so well.  Padum  Nath's  name- does  not  appear  in  Annexure  VIII.  I  disbelieve  the evidence  of  Sheo  Prasad.
258.  Ram  Sagar  (R,W.  45)  says  that  his  bullock  cart  was  engaged  by  Tribenl Pandey  of  Khargoopur  for  the  Swatantra  party  a  day  before  the  poll,  but Respondent  No.  rs  allegation  is  that  bullock  carts  were  hired  on  the  day  of  poll. In  his  cross-examination  he  savs  that  Ramdin  was  his  plough  man  who  drove  the cart  for  taking  the  voters.  He  admits  that  he  did  not  go  to  Bhangaha  polling Station  at  all.  He  could  not  say  what  voters  were  brought  in  the  cart  and  from what  villages.  This  admission  in  his  cross-examination  is  enough  to  discredit  his testimony.
'•  Swarup  Chand  (R.W.  49)  is  the  brother  of  Sushil  Chandra  (R.W.  27).  He aays  that  his  bullock  cart  was  hired  for  Ra.  7.  He  does  not  say  who  hired  the bullock  cart.
In  his  cross-examination  he  says  that  4  trips  were  made  by  the  bullock  carts at  the  polling  station  Kamrawa.  Some  of  the  trips  were  from  Bhulai  Dih  and some  from  Rarianpurwa,  Tiwaripurwa  and  Kamrawa.  All  these  villages  are  at a  distance  of  3  furlongs  from  the  polling  station.  Kamrawa  village  is  only  H furlong  from  the  polling  station.  It  is  difficult  to  believe  that  bullock  carts  will be  hired  to  carry  the  voters  for  such  a  short  distance.
He  further  says  that  workers  of  different  candidates  present  at  the  polling station  did  not  raise  any  objection  to  the  voters  being  carried  by  bullock  carts. The  only  reasonable  inference  is  that  no  voters  were  brought  in  bullock  carts from  the  villages  named  by  this  witness.  He  poses  to  be  a  worker  of  the  petitioner but  has  come  to  depose  against  him.
 
I  disbelieve  his  evidence. 259  Ram  Saran  (R.W.  57)  says  that  he  got  the  bullock  cart  of  Nakshed  nired for  the  purpose  of  bringing  voters  from  village  Narainpur.  His  own  bullock  cart was  also  used  for  that  purpose.  In  his  cross-examination  he  says  that  only  two bullock  carts  one  belonging  to  him  and  the  other  belonging  to  Nakshed  plied  for

Utoc S(li)]  THE  GAZETTE  OF INDlA  EXTRAORDINARY  8 9!
.bringing  the  voters  at  Khargoopur  Imalia.  He  contradicts  Dr.  Mohd.  Umar (R.W.  24)  and  Bhiki  Ram  (R.W.  28).  His  name  does  not  appear  in  Annexure VIII.  He  poses  to  be  a  worker  of  the  Swatantra  Party,  but  has  come  forward  to •give  evidence  for  the  rival  candidate.
I  disbelieve  his  evidence.
Respondent  No.  1  has  failed  to  adduce  cogent  evidence  to  show  that  the petitioner  or  his  agents  hired  bullock  carts  to  carry  voters  to  the  polling  station. 'The  findings  on  this  issue  is  in  the  negative.
260.  Issues  Nos.  29,  30  and  31.—Respondent  No.  1  led  no  evidence  in  support of  the  allegations  contained  in  these  issues.
261.  Issue  No.  32,—In  elaborating  his  arguments  on  this  point  of  Law,  the learned  Advocate  General  posed  four  questions  for  considerations  before  the Tribunal,  viz.;
(1)  Whether  the  R.O.  had  an  option  to  accept  or  reject  the  ballot  papers? (ii)  If  R.O.  had  an  option,  whether  it  was  to  be  exercised  in  accordance  with Rules?
OR
Had  the  R.O.  the  Additional  Duty  of  finding  out  the  true  wishes  and intention  of  the  voter?
(iii)  If  R.O.  had  the  option,  was  that  option  to  be  exercised  merely  by looking  at  the  Ballot  Papers  or  would  he  take  other  evidence?
(iv)  Would  the  Tribunal  record  a  finding  for  himself  as  to  whether  on  evi- dence  before  him  the  ballot  papers  were  intended  for  casting  vote  in favour  of  one  candidate  or  the  other7
OR
Whether  the  Tribunal  is  restricted  to  the  finding  which  the  R.O.  could  have arrived  at  on  the  evidence  before  him  as  the  R.O.  possibly  could  not have  all  the  facility  and  evidence  which  are  before  the  Tribunal?
To  the  first,  second  and  third  points  the  Advocate  General  replied  that  the intention  as  envisaged  in  the  Rules  and  Law  do  not  contemplate  any  enquiry  by the  R.O.  If  there  De  more  than  one  mark  on  a  Ballot  Paper  "R.M.V,"  the  R.O. had  no  option  but  to  reject  it.  He  maintains  that  the  intention  of  the  voter  was not  necessary  to  be  found  out  as  it  was  not  the  intention  of  the  Act  and  Rules  that R.O.  should  hold  an  enquiry.  He  maintains—R.O.  was  to  look  at  the  Ballot  Paper, find  out  the  apparent  error.  Nothing  more  could  be  done  by  the  R.O.  This  com- pletely  rules  out  the  enquiry  by  the  R.O.  regarding  tampering  etc.  In  support  of his  argument  the  learned  Advocate  General  has  referred  to  Rule  S6  and  the Instructions  to  the  R.O's  page  57(K),  Also  15  E.L.R.  219(220,  238).
262.  On  the  fourth  point  {he  Advocate  General  contends  that  the  Tribunal's jurisdiction  is  limited.  If  the  R.O.  could  not  make  any  enquiry  the  Tribunal  could not  do  so.  Tribunals  jurisdiction  is  only  co-extensive  with  that  of  the  R.O.  The learned  Advocate  General  further  submitted  that  the  finding  of  Mr.  Justice  Mathur in  Writ  Petition  No.  2718  of  1962  to  the  effect  that  the  R.O.  was  to  find  out  the intention  of  the  voter  and  then  accept  or  reject  the  Ballot  Paper  is  wrong  He wants  to  maintain  it  because  of  the  ruling  reported  in  10  E.L.R.  216  (234,  235:, Z37|  2 4 1,  Jd4Z).
The  learned  Advocate  General  further  maintains  that  only  that  evidence  is relevant  for  the  purpose  of  the  Tribunal,  which  could  have  been  available  to the R.O.  all  other  evidence  was  inadmissible  as  the  evidence  which  have  been  lead here  was not available  to the R.O. at the time  of  recounting,  therefore,  the  Tribunal must  consider  only  that  evidence  or  materials  which  were  before  the  R.O. on the basis  of  which  he  could  have  come  to  some  conclusion.
263. The judgment  of  Hon'ble  Mr. Justice  Mathur  dated  1st April,  1963 delivered In  Misc.  Writ  No. 2718 of  1962 arising  from  an  order  of  this  very  Tribunal  dated 3rd  September,  1962 is  a  complete  answer  to  the  first  objection.  The  arguments advanced  before  Mr.  Justice  Mathur  by  the  learned  Advocate  General  were  the same  as  are  being  advanced  now  before  this  Tribunal.  After  dealing  with  the various  provisions  of  the  Representation  of  People  Act and  the  Rules  made  there- under  the  Hon'ble  Mr.  Justice  Mathur  writes: —
 
"It  shall  be found  that  stress  has been  laid  on the word  'vote'  and not on the word  mark  and  the R.O. has  to  form  an  opinion  as  to  the  intention

892  TPE  GAZETTE  OF  JNRIA  EXTlUoRDINAkY  [FAR*  H-^
of  the  elector.  If  on  a  perusal  of  the  marking  it  is  evident  for whom  the  elector  had  intended  to  cast  his  vote,  and  had,  in  fact, cast  his  vote,  that  vote  has  to  be  taken  into  consideration  and not  any  extraneous  marking  which  may  have  been  done  by some  other  person  surreptitiously  or  in  the  course  of  his  official  busi- ness  Similarly,  if  there  exist  two  marks  on  the  ballot  paper against  more  than  one  candidates  and  one  of  such  marks  appears  to be  the  result  of  tampering,  that  mark  can  be  disregarded  and  in  the eye  of  law  the  vote  was  recorded  against  one  candidate  only  against whose  name  the  genuine  mark  exists".
The  learned  Judge  refers  to  the  second  proviso  to  sub-rule  (2)  Of  Rule  56  and  he says  that  this  makes  the  above  point  still  clearer,  According  to  the  learned  Advo- cate  General  this  ruling  of  Hon'ble  Mr.  Justice  Mathur  is  wrong.
264.  Before  dealing  with  the  merits  of  this  point  I  will  like  to  make  it  clear that  the  above  judgment  of  Mr.  Justice  Mathur  in  Civil  Misc.  Writ  No,. 2718  of 1962  is  binding  on  this  Tribunal  as  well  as  the  Hon'ble  High  Court  of  Allahabad itself.
In  Laxmi  Narayan  Vs.  Balwant  Singh  and  others  reported  in  20  E.L.R.  18- (94,  95)  their  Lordships  have  held  that—
"An  order  passed  by  the  High  Court  in  the  exercise  of  its  jurisdiction  to issue  Writs  setting  aside  an  interlocutory  order  of  the  Tribunal  can- not  be  set  aside  by  the  High  Court  in  appeal  against  the  final  order of  the  Election  Tribunal".
Their  Lordships  further  hold—
"This  Court  passed  final  orders  with  respect  to  the  above  matters  and  it was  not  open  to  the  Election  Tribunal  after  that,  to  consider  the  lega- lity  of  the  order  dated  13th  September,  1957  (the  order  of  the  High- Court  in  Writ)".
In  the  light  of  the  above  judgment  of  the  Hon'ble  High  Court  it  is  not  open  to  the learned  Advocate  General  to  challenge  before  this  Tribunal  the  legality  of  the judgment  of  the  Hon'ble  Allahabad  High  Court  passed  in  Civil  Misc. Writ  Petition No. 2718 of  1962 and  it  is  also  not  open  to  this  Tribunal  to  decide  about  the  correct- ness  or  otherwise  of  the  decision  of  the  Hon'ble  High  Court  and  the  said  decision, must  be  accepted  by  this  Tribunal  as  final.
265.  In  the  above  view  it  was  the  duty  of  the  Returning  Officer  to  consider  the intention  of  the  voter  in  respect  of  the  ballot  papers  which  were  originally  accept- ed  as  valid  for  the  Petitioner  but  were  at  the  recount  found  to  bear  an  additional mark  in  favour  of  some  other  candidate.  This  he  could  have  done  and  should have  done  as  there  was  sufficient  clear  evidence  before  him,  as  given  below:—
(i)  these  ballot  papers  were  accepted  by  the  counting  clerks  as  valid  with- out  any  challenge  by  the  counting  agents  of  any  of  the  respondents. (ii)  the  counting  clerks  and  supervisors  in  the  discharge  of  their  official duties  must  be  presumed  to  have  discharged  their  duty  correctly,
(iii)  it  was  apparent  before  the  Returning  Officer  that  the  second  mark  found in  these  ballot  papers  lacked  in  continuity  and  were  mostly  very  faint in  comparison  fo  the  bolder  mark  in  the  cage  of  Star.
(iv)  The  Returning  Officer  should  have  become  sceptic  because  this  feature was  found  only  in  the  cases  of  ballot  papers  originally  counted  in favour  of  the  Petitioner  and  there  was  the  common  feature  of  the bolder  mark  being  in  the  cage  of  the  Star.
(v)  There  was  an  obvious  design  in  the  feature  as  they  were  all  pointing against  the  Petitioner  only.  This  is  further  corroborated  by  the  fact that  ballot  papers  originally  rejected  as  R.N.M.  or  R.M.B A,  were  all found  to  bear  one  mark  only  in  the  cage  of  Respondent  No.  1  at  the recount.
(vi)  that  these  features  were  noticeable  only  in  the  case  of  two  segments  of which  A.  S.  Misra  was  the  Assistant  Returning  Officer,  Even  in  this, in  the  case  of  the  bundle  of  ballot  papers  which  got  mixed  up  with U.P.  Assembly  seat  ballot  papers  no  such  feature  was  noticeable.
 
(vii)  The  above  features  were  sufficient  to  convince  the  Returning  Officer about  the  tampering,  will  be  clear  from  the  evidence  of  the  Deputy

SEC  .
,  GA  i  Of  >IA  .  RAOR.  g£j
Election  Commissioner  (P.W.3)  who  was  present  during  the  recount and  who  says:—
"On  a  closer  watch  I  found  that  this  was  a  case  of  tampering, in  that  the  second  faint  mark,  could  not  have  been  made  simul- taneously  when  the  original  mark  was  made"  ipara  3).
and  therefore  he  asked  the  Returning  Officer
"to  keep  an  account  of  the  number  of  ballot  papers  of  both  the  cate- gories  and  for  this  purpose  a  forjn  was  prescribed  "vide  Ex.  P.  26 and  Ex,  P.  27".
Copies  of  the  telegram  to  the  Chief  Election  Commissioner  Ex.  P.  30 made  over to  the  Returning  Officer  at  12.45  p.m.  on  llth  March,  1962  and  the  letter  to  the Deputy  Election  Commissioner  by  the  Petitioner  Ex. P.  29 made  over  to  the  Deputy Election  Commissioner  on  the  forenoon  of  llth  March,  1962  and  read  by  the Returning  Officer  are  significant.  Allegations  of  tampering  have  clearly  been  made in  this.
In  the  light  of  the  above  points  and  specially  in view  of  the judgment  of  Hon'ble Mr.  Justice  Mathur  there  was  sufficient  evidence  before  the  Returning  Officer  on which  he  could  and  should  have  found  the  said  ballot  papers  to  be  tampered  and it  was  his  duty  to  decide  accordingly.
Apart  from  any  thing  else  the  said  ballot  papers  and  the  evidence  referred  to are  all  before  the  Tribunal  in  the  same  measure  as  they  were  before  the  Returning Officer  and  the  Tribunal  is  fully  competent  in  coming  to  the  conclusion  that  the said  ballot  papers  were  tampered  with  and  proceed  to—
(a)  accept  as  valid  for  the  Petitioner  the  votes  which  were  wrongfully  re- jected  and  should  not  have  been  rejected  by  the  Returning  Officer, (b)  to  reject  the  votes  which  were  wrongfully  accepted  for  the  Respondent No.  1 and  should  not  have  been  so  accepted  by  the  Returning  Officer.
266.  The  fourth  point  advanced  by  the  learned  Advocate  General  Is  that  the- jurisdiction  of  the  Tribunal  is  limited  only  to  the  evidence  which  were  available to  the  Returning  Officer.  This  is  based  on  the  ground  that  the  power  of  the  Tri- bunal  is  only  co-extensive  with  that  of  the  Returning  Officer.
The  learned  Advocate  General  has  based  his  whole  argument  on  this  point on  the  view  taken  by  the  Suplreme  Court  reported  in  Hart  Vishnu  Kamath  Vs. Ahmad  Ishaque. and  others—10 E.L.R.  216.  In  the  course  of  hia  arguments  he stated  that  he  was  challenging  the  judgment  of  Mr.  Justice  Mathur  El  Writ  No. 2718 of  1962  on  the  strength  of  the  above  decision  of  the  Supreme  Court.
The  first  point  to  note  is  that  the  said  ruling  of  the  Supreme  Court  is  based on  an  interpretation  of  Rule  47(1) (c)  read  with  Rule  47(4)  of  the  Representation of  the  People  (Conduct  of  Elections  and  Election  Petitions)  Rules,  1951,
Rule  47(1) (c)  runs  as  under: —
"A  ballot  paper  contained  in  a  ballot  box  shall  be  rejected—
If  It  bears  any  serial  number  of  mark  different  from  the  serial  numbers- of  marks  of  ballot  papers  authorised  for  use  at  the  polling  station or  the  polling  booth  at  which  the  ballot  box  in  which  it  was  found waa  used".
Rule  47(4)  runs  as  under: —
"The  decision  of  the  R.O.  as  to  the  validity  of  a  ballot  paper  contained  in  a ballot  box  or  of  a  Postal  Ballot  paper  or  of  a  vote  given  on  a  Postal ballot  paper  shall  bp  final  subject  to  any  decision  to  the  contrary given  by  a  Tribunal  on  the  trial  of  an  Ejection  Petition  calling  in question  the  election".
Rule  23  prescribes  procedure  before  recording  of  votes.  Rule  25 prescribes  the manner  of  recording  of  votes  after  the  receipt  of  ballot  papers  and  Rule  28  pro- vides  that  the  ballot  paper  shall  contain  a  serial  number  and  such  distinguishing mark  as  the  Election  Commission  may  decide,
 
A perusal  of  the  above  Rules  would  show  that  the  manner  of  voting  was  wholly different  from  what  it  was  in  the  1962 Election.  Whereas  in  1952 election  the  bal- lot  papers  bearing  serial  numbers  and  the  distinguishing  marks  of  the  Election

394  T HE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  I I-
Commission  had  only  to  be  put  in  by  the  voter  into  the  Ballot  box  of  the  candi- date  of  his  choice.  Each  candidate  had  a  separate  box  placed  for  receiving  ballot papers  in  his  favour.  In  the  1962  election  separate  ballot  boxes  were  not  provided for  each  candidate  but  there  was  only  one  ballot  box  for  all  the  candidates.  The voter  was  supplied  with  ballot  paper  which  he  was  to  mark  by  the  Rubber  Seal Stamp  in  the  cage  of  the  candidate  of  his  choice.
Keeping  in  view  the  above  difference  it  will  be  clear  from  a  perusal  of  Rule  47 of  the  Rules  in  force  in  1952  that  no  provision  has  been  made  therein  regarding the  markings  of  ballot  paper  by  the  voter  and  the  manner  of  marking  which  might lead  to  their  being  rejected  at  the  time  of  counting.
Rule  47 (c)  laid  down  as  a  mandatory  provision  that  the  ballot  papers  must bear  a  serial  number  and  a  mark  prescribed  by  the  Election  Commission.  So  far as  this  is  concerned  there  is  and  can  be  no  question  of  the  intention  of  the  voter or  probe  into  his  intentions.  If  the  serial  number  or  the  mark  was  not  there  the Returning  Officer  had  to  reject  it  and  the  Tribunal  also  had  to  reject  it.
267.  Rule  47(4)  provided  that  the  decision  of  the  Returning  Officer  as  to  the validity  of  the  ballot  paper  in  a  ballot  box  was  final,  subject  only  to  the  decision to  the  contrary  by  the  Tribunal.  From  this  it  would  be  clear  that  according  to this  sub-rule  the  question  was  about  the  ballot  paper,  the  Returning  Officer's  deci- sion  about  its  validity  was  final  and  the  Tribunal  was  in  the  capacity  of  exercising an  Appellate  Jurisdiction  over  the  decision  of  the  Returning  Officer.  In  10  E.L.R. 216  their  Lordships  of  the  Supreme  Court  lay  down  that  the  provisions  of  Rule 47  of  1951  Rules  were  mandatory.  Their  Lordships  further  lay  down  that  under Rule  47: —
"The  R.O.  has  to  automatically  reject  certain  classes  of  votes  for  not  being in  conformity  with  the  Rules.  They  are  set  out  under  Rule  47(1)  (b) and  (c)  In  other  cases  the  rejection  will  depend  on  his  decision  whe- ther  the  conditions  for  his  acceptance  have  been  satisfied
Rule  47(4)  is  important.  It  provides  that  the  decision  of  R.O  shall be  final  subject  to  any  decision  to  the  contrary  given  by  a  Tribunal
"Under  this  provision,  the  Tribunal  ia  constituted  a  court  of  Appeal  against the  decision  of  the  R.O.  and  as  such  its  jurisdiction  must  be  co-exten- slve  with  that  of  the  R.O.  and  cannot  extend  further.  If  ahe  R.O.  had no  power  under  rule  47  to  accept  a  vote the  Tribunal  reviewing  this  decision  under  Rule  47(4)  can  have  no such  power".
In  the  above  position  of  law  when  it  was  argued  in  that  case  that  the  object of  the  Election  Rules  la  to  discover  the  intention  of  the  voters,  If  an  elector  has shown  a  clear  intention  to  vote  for  a  particular  candidate,  that  must  be  taken  into account  under  section  100(ii)(c)  even  though  the  vote  might  be  bad  for  non- compliance  with  the  formalities,  their  Lordships  held  that  when  the  law  prea-ribes that  the  intention  should  be  expressed  in  a  particular  manner,  it  can  be  taken  into account  only  if  it  is  so  expressed.
268. The  judgment  of  their  Lordships  only  establish  that  the  ballot  papers  under Rule  47  read  with  Rule  28  had  to  bear  a  serial  number  and  the  prescribed  m&rk and  there  was  no  question  of  consideration  of  the  intention  of  the  voter  in  that respect.  Their  Lordships  further  hold  that  in  view  of  the  provisions  of  Rule  47(4) the  Tribunal  is  constituted  a  Court  of  Appenl  and  as  such  its  power  is  co-extensive with  that  of  the  R.O.  in  relation  to  Rule  47.
This  judgment  of  their  Lordships  is  dated  9th  December,  1954.
In  the  Rules  of  1956, Rule  57 corresponds  to  the  Rule  47 of  1951, and  Rules  57 (d) and  (e)  correspond  to  Rule  47 (c).
From  a  perusal  of  Rule  57  it  will  be  seen  that  a  proviso  has  been  added  as under: —
"Provided  that  where  the  Election  Commission  on  being  satisfied  that  any such  defect  as  is  mentioned  in  clause  (d)  or  clause  (e)  . . ..  a  ballot paper  shall  not  be  rejected  merely  on  the  ground  of  such  defect".
It  will  also  be  seen  that  the  provision  contained  in  Rule  47(4)  of  1951  Rules was  eliminated  in  its  entirely  from  Rule  57  of  1956  Rules.
It  may  safely  be  taken  that  the  above  amendments  were  brought  about  as  a result  of  the  judgment  of  their  Lordships  of  the  Supreme  Court  reported  in 10  E.L.R.  216.

SEC.  3(ii)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  8 95
In  15 E.L.R.  219 their  Lordships  of  the  Madhya  Pradesh  High  Court  laid  down: —
"Under  the  provisions  of  Rule  57(2)  and  Rule  27(2)  of  the  R.  P.  Act  1951 a  ballot  paper  which  does  not  bear  a  distinguishing  mark  as  directed by  the  Election  Commission  has  to  be  rejected.  The  proviso  to  Rule 27(2)  (e) will  apply  and  save  such  ballot  papers  only  if  the  Election Commission  had  validated  such  papers  on  a  reference  being  made  to it  by  the  Returning  Officer".
This  ruling  nowhere  lays  down  that  the  Tribunal  is  constituted  a  Court  of Appeal  over  the  decision  of  the  Returning  Officer  or  that  the  powers  of  the Tribunal  are  co-extensive  with  those  of  the  Returning  Officer.
Even  so  it  appears  that  while  framing  the  Rules  in  1961  the  Legislature  has taken  into  consideration  the  ruling  reported  in  15  E.L.R.  219;  and  therefore  I  find that  in  Rule  56  of  1961 Rules  (which  corresponds)  to  Rule  57  of  1&56 Rules,  there is  a  material  change  in  the  first  proviso  which  provides  that  where  the  Returning Officer  is  satisfied  that  any  such  defect  as  is  mentioned  in  clause  (g)  or  (h)  has been  caused  by  a  mistake  or  failure  on  the  part  of  a  presiding  officer  or  a  Polling Officer,  the  ballot  paper  shall  not  be  rejected  merely  on  the  ground  of  such  defect.
By  this  proviso  a  duty  is  cast  on  the  Returning  Officer  to  satisfy  himself  about the  causes  of  the  mistake.
269.  It  is  to  be  noted  that  for  the  Election  to  be  held  in  1962  the  manner  of voting  also  was  materially  changed  ride  Rules  22,  23,  25,  30,  38,  39,  40  of  1961 Rules.  Therefore  in  Rule  56  new  provisions  viz.  56(2)  (b) (c)  and  (d)  were provided  for  the  first  time  and  while  providing  these  sub  rules  a  proviso  too  was added  viz.—
"Provided  further  that  a  ballot  paper  shall  not  be  rejected  merely  on  the ground  that  the  mark  indicating  the  vote  is  in  distinct  or  made  more than  once,  if  the  intention  that  the  vote  shall  be  for  a  particular candidate  clearly  appears  jrofn  the  way  the  paper  is  marked".
This  proviso  coming  in  sequence  after  the  judgment  of  the  Supreme  Court  report- ed  in  10  E.L.R.  216  makes  it  obvious  that  the  Legislature  intended  quite  clearly that  the  Returning  Officer  has  the  duty  to  judge  and  find  out  the  intention  of  the voter  even  in  cases  where  a  ballot  paper  is  found  to  contain  more  than  one  mark and  he  could  not  reject  them  automatically  as  was  ruled  bv  the  Supreme  Court while  dealing  with  Rule  47(c)  of  1951  Rules.  Instructions  for  Returning  Officers page  57(k)  as  well  as  to  (m),  specially  (m) (vii)  which  corresponds  to  the  second proviso  in  Rule  56  make,  it  further  clear.
So far  as  the  effect  of  omission  of  Rule  47(4)  of  1951 Rules  from  the  correspond- ing  provisions  of  1956  and  1961Rules  is  concerned,  the  Judgment  of  their  Lordships of  the  Supreme  Court  reported  in  17  E.L.R.  181(189)  Veluswami  Theicar  Vs  Raja Naynnar  &  others—A.I.R.  1959  S.  C.  422  is  quite  clear  and  definite.  The  relevant portion  of  their  Lordships  decision  is  as  under: —
"It  was  contended  for  the  respondent  that  the  proceedings  before  the  Tribu- nal  are  really  by  way  of  Appeal  against  the  decision  of  the  R.O.  and that,  therefore,  the  scope  of  the  enquiry  in  the  Election  Petition  must be  co-extensive  with  that  before  the  R.O,,  and  must  be  limited  to  the ground  taken  before  him
We  are  unable  to  agree  with  this  contention,.  The  jurisdiction  which  a Tribunal  exercises  in  hearing  an  Election  Petition  even  when  it  raises a  question  under  Section  100(1) (c)  is  not  In  the  nature  of  an  appeal against  the  decision  of  the  R.O.,  An  election  petition  is  an  original proceeding  instituted  by  the  presentation  of  a  Petition  u/s  81  of  the Act
All  the  parties  have  the  right  to  adduce  evidence  ,and  that  is  of  the  essence of  an  original  proceeding  as  contrasted  with  a  proceeding  by  way  of Appeal  it  is  open  to. a  party  to  put  forward  all  grounds  in support  of  or  negation  of  the  claim,  subject  only  to  such  limitations  as may,  if  found,  in  the  Act".
Proceedings  further  their  Lordships  of  the  Supreme  Court  mention  that  the Tribunal  is  not  restricted  to  the  materials  placed  before  the  R.O.,  and  that  all evidence  bearing  on  that  ground  could  be  adduced  before  the  Tribunal  Their Lordships  while  referring  to  10 E.L.R.  216 have  mentioned—
"Now  the  observations  quoted  above  are  made  statedly  with  reference  to> Rule  47".

ggg  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  [PART  I I-
From  the  above  ruling  it  is  amply  clear  that  in  view  of  the  material  changes in  Rule  56  which  corresponds  to  Ruls  47  of  1951  Ruled,  the  ruling  reported  in 10 E.L.R.  216  is  no  longer  effective  and  it  can  have  no  force  vis-a-vis  the  ruling reported  in  17 E.L.R.  181 (189)  S.C".
270-  In  A.I.R,  1960  Supreme  Court  368,  it  has  been  laid  down  as  follows: —
"Courts  and  Tribunals  are  constituted  to  do  justice  between  the  parties within  the  confines  of  statutory  limitations  and  undue  emphasis  on technicalities  or  enlarging  their  scope  would  cramp  their  powers diminish  their  effectiveness  and  defeat  the  very  purpose  for  which they  are  constituted".
Their  Lordships  further  say—•
"  even  if  there  is  a  proper  acceptance  it  is  open  to  the  petition- er  to  question  the  validity  of  the  election  u/s  100(1)  (d)  (iv)  on other  grounds  ".
In  A.I.R.  1960  Patna  371  (373),  following  the  decision  in  17  E.L.R.  181  their .Lordships  of  the  Patna  High  Court  held: —
"The  Principle  decided  in  the  case  of  1959  S.  C.  422  (17  E.  L.  R,  1S1)  is applicable  to  the  facts  of  the  instant  case.  I  would  therefore  hold that  additional  grounds  of  attack  could  be  taken  before  the  Tribunal in  regard  to  the  validity  of  the  nomination  of  the  appellant".
Their  Lordships  followed  17  E.  L.  R,  181  and  not  10 E.  L.  R.  216.
In  Bhim  Sen  Vs.  Chhatar  Singh  & others—(15  E.  L.  R.  175  at  181)  their  Lord- ships  of  the  Allahabad  High  Court  overruled  the  contention  that  the  countings and  recountings  done  by  the  Returning  Officer  were  final  and  the  Election  Tribu- nal  had  no  jurisdiction  to  go  into  the  matter  and  to  come  to  a  conclusion  that  the appellant  had  received  a  lesser  number  of  votes  than  he  was  declared  to  have received  by  the  Returning  Officer.  Referring  to  Rule  64  of  1956  Rules  (corres- ponding  to  Rule  C3  of  1961  Rules)  their  Lordships  of  the  Allahabad  High  Court decide  that  thi^  Rule  has  n'o  application  to  the  proceedings  before  the  Election Tribunals  and  it  is  confined  in  its  operation  to  proceedings  before  the  Returning Officer.  Their  Lordships  further  say  that—
"Reference  was  also  made  to  old  Rule  47  which  said  that  the  decision  of the  returning  officer,  after  a  recounting,  would  be  final  but  was  sub- ject  to  the  decision  by  the  Election  Tribunal.  The  argument  is  that the  last  words  of  the  old  rule  haying  been  omitted  from  rule  64,  the decision  of  the  returning  officer  is  no  longer  subject  to  the  decision of,  the  Election  Tribunal.  But  along  with  those  words  the  word "final"  has  also  been  omitted  in  rule  64,  and  rule  64  nowhere  says that  the  recounting  done  by  the  returning  officer  shall  be  final. Besides,  one  of  the  grounds  on  which  an  election  petition  can  foe allowed  and  which  is  mentioned  in  section  100(1) (d) (iii),  is  the improper  reception  of  any  vote  which  is  void.  It  is  thus  the  duty of  the  Election  Tribunal  to  determine  whether  there  had  been  any improper  reception,  refusal  or  rejection  or  reception  of  any  vote which  was  void.  The  Tribunal  has  to  see  whether  the  votes  cast  in favour  of  a  particular  candidate  were  valid  or  not.  It  could,  there- fore,  go  into  the  question  as  to  how  many  void  votes  had  been counted  in  favour  of  the  respondent,"
Jiold
Therefore,  in  the  light  of  the  latest  Supreme  Court  judgment  on  the  point,  I r (i)  that  the  Tribunal  is  not  constituted  as  a  Court  of  Appeal  over  the decision  of  the  Returning  Officer,
(ii)  its  powers  are  not  co-extensive  with  that  of  the  Returning  Officer. In  other  words  the  scope  of  the  Tribunal's  enquiry  is  not  restricted to  the  evidence  which  were  or  could  be  available  to  the  Returning Officer.

SEC.  3(H)]  THE  GAZETTE  OF  INDIA  EXTRAORDINARY  897
Shri  Narayan  Dandekar  is  declared  to  have  been  duly  elected  to  the  House oJ People  (LOK  SABHA)  from  34—Gonda  Parliamentary  Constituency,  Districi Gonda  in  the  State  of  Uttar  Pradesh.
The  Recriminatory  Petition  filed  by  Respondent  No.  1  under  section  97  oi Representation  of  the  People  Act  is  dismissed.
Respondent  No.  1  shall  bear  his  own  costs  as  well  as  the  costs  of  the  Peti- tioner  throughout  amounting  to  Rs.  3,802.79  Paisa  detailed  below  including counsel's  fee.  I  fix  Rs. 1,000  as  counsel's  fee  for  the  Petitioner.
Rs.
53-75 Applications. T.A.  and  D.A.  of  witnesses. 1,001-34 Experts  Fee  including  photograph  charges.  612-00 Transportation  charges  of  Boxes  containing  Ballot  Papers
including  its  safe  custody  charges  with  the  State Bank  of  India,  Allahabad,
966-00 Charges  of  certified  copies  of  documents  filed.  94-70 Charges  on  account  of  local  inspection.  75-00 1,000-00 Counsel's  fee-
TOTAL  3,tWZ-79  f.
Respondents  2 to  4  shall  bear  their  own costs  if  any.
August  29,  1964.
Sd./  B,  K.  CHOUDHUHI.
[No.  82/339/62.]
By  Order,
PRAKASH  NARAIN,  Secy.
WONTED  IN  INDIA  BY THE 0ENERAL  MANAGER,  GOVERNMENT  OF  INDIA  PHESB,
NKW  DELHI  AND PUBLISHED  BY  THE MANAGER  OF  PUBLICATIONS,  DELHI,  1 9 84





, who told him that they could not shift as there- was no< other place available A, S. Misra had not been examined by Respondent No. 1. This IK contradicted by the A.R.O. (A. S. Misra) in his affidavit (Ex. P. 136), In the writ petition, wherein he =ays that the combined office was a "bit crowded". It is, therefore, incorrect that it was over-crowded or that he expressed his inability to shift the counting to some other -place. 79. Rama Nath Misra (R.W. D has been rontradicted by Respondent No. l's own witness Mujtaba Husain (R.W. 2). Tn para. ID. he says that the counting agents of the different candidates used to move about in the counting hall in order to watch the counting. Sheo Bahadur (R.W. 3) in the last paragraph of his cross-examination says that from the different counting tables, persons including counting agents used to go to the A.R.O's table, but in this, they had to move the chairs of supervisors  as there was congestion. It is clear from the Respondent No. l's own witnesses that the combined office, "though a bit crowded, was not so over-crowed as to prevent free movement of the counting agents of the candidates. Hanuman Prasad (P.W. 7), in paragraph 8 of his deposition, has denied Res- pondent No. l's allegation that on account of crowd the counting agents could, not supervise the counting. He further says that the counting agents of the candidates used to sit on the benches provided for them and that they also used to come to the counting tables. ↩
that he was never under any threat of Raja Sahib of Mankapur, nor did he experience tiny difficulty in discharging his duties on account of rush or overcrowding in the counting room. He was also counting clerk at the time of recounting. His evidence relating to recounting will 'be referred to later. 91. Bahadxu- Singh (P.W. 5) was the counting clerk at table No. 2 both fc- Gonda East and Gonda West, He says that a written instructions was given 1o him and A.R.O. also gave oral instructions, and the counting clerks began the counting according to the instructions given to them orally as well as in writing, Whenever he found any ballot paper containing more than one mark, he used to put it in the tray of doubtful ballot papers, The ballot papers which bore no voting mark or votmg marks on blank area he put them in the tray df doubtful ballot paper. ↩
the Shamiana, After that Srj Nigam walked around to the table.-? when thr* counting was going on. Sri Jauhari walked up to S. R MISE;] and asked him to expedite the counting 'of the VL.rliiiinpnt.M-> VHUT, SO ;hrd th« result cui'hl be r!rflared. Sri Nigam mm.v-li ihJ not KU< ;;k ij Sri S Lt. Misra directly". P't.i "'a. nnye 15-- "As I have sair] earlier, the lall in the petitioner's lead From polling stations fi4 to 80 was about 2500 votes and if it con- tinued to i'al] in the t;:ime manner for the remaining polling stations, ihe petitioner's lead in this segment would not have been enough to exceed the load ol the Respondent No. I in the other four segments. About this lime, Ihe counting of the sixth round i.e.. of polling statin-is 81 to 94 was beginning and as the ballot papers, were taKen out of the ballot boxes and were being unfolded, indications that appeared were, that both the petitioner and Respondent No, 1 would be polling nearly equal number of votes in these polling stations of the last round. About 9-45 P.M. the Returning Officer and the Asstt. Returning Officer had left the Shamiana. Sometime later, the res- pondent No. I also left the Shamiana." ;00. The figures tfiven by P.W, 2 about the lead of the petitioner in Mankapur Segment i'rom time to time as the coupling progressed can easily be verified from the figures Kiven in Ex. P. 31 which is the final result sheet polling station-wise in Form No. 20 of Mankapur Segment. This on verification Is found to be nearly correct. Petitioner's lead was at first of 15571 and later it was 2134. The evidence of V. B. Bhadkamkar (P.W. 2) of the effect that at about 9 P.M« the Respondent No. 1 came to the Shamiana where the counting of Mankapur Segment was in progress and that about 15 minutes later the R.O. (CM. Nigam) accompanied by A.R.O., Sri Johri came there and that Sri Johri walked upto S. R. Misra who was the Assistant Returning Officer of this segment and asked him to expedite the counting of Parliamentary votes so that result could be declared, must be accepted as true, as the best evidence to rebut him would have been of Respondent No. 1 himself and C, M. Nigam and Sri Johri. Respondent No. 1 has not gone in witness box nor has been examined C. M. Nigam or Sri Johri who was the A.R.O. for the Parliamentary constituency as a whole. There is further evidence of V. B. Bhadkamkar (P.W. 2) to the effect that at about 9-45 P.M. the Returning Officer and the As.sislp.ut Returning Officer (Sri Johri.) had left the Shamiana and sometime later Respoudent No. 1 also ltft the Shamiann. About this time the counting of the 6th round i.e. of pollinK stations 81 to 94 was commenced and as the ballot papers were taken out of the ballot boxes and were being unfolded, indications that appeared were that both the petitioner and Respondent No. ] would bo polling' nearly equal number of votes in the last round and the lead of the petitioner maintained the lead which he had after the counting of polling stations 64 to 80, must be accepted as true. 101. It has been admitted by Rama Nath Misra (R.W. 1) in his cross-exami- nation—para 67 and 72 that at the time when he moved the application Ex. P. 2 and Ex. P. If), indications were there that Respondent No. l was losing in Manka- pur segment although he is reluctant to give the figures by which the petitioner was leading. He stated that at about 10-30 P.AT. on 28th February UI62 thai the petitioner was leading in Mankapur sepmunt over Respondent No. 1 but Jhe exact figures were not available o nim. The same was the position at 11-30 P.M. I cannot believe R.W. 1 when he says that counting agents did not know the figures. Countints Agents must have been noting the number of votes polled by their candi- dates at the end of counting of each polling station when the counting supervisor entered the figures in form No. 16. He admits in his cross-examination that C M. Nigam came to the Mankapur Shamiana between 10-30 and 11 P.M. 102. From the evidence referred above, it is abundantly clear thai when Res- pondent No. 1 found he faced defeat in the election, the] application Ex. P. 2 was movH at about 10-45 P.M. The grounds raised in this application were frivolous and the application was consequently rejected by the Assistant Returning Officer at 11-30 P.M. (vide Ex. P. 18). Then another application was moved by Respon- dent No. 1 at mid-night on 28th February 1962 (Ex. P. 19). This also WRS rejected by the A.R.O. (vide Ex. P. 20). In this order Ex. P. 20 the A.R.O: ↩
P.W. 12:49/37, 46, 57. 82 (blind vorcrs) P.W. 11:49/37 (Ph), 46 (Ph), i 25j 155 ↩
R.M.V. Valid for R. 1 R.M.V. R.M.H.A. R.N.M. Valid for P P.W. 11176/45- 55- (Ph. Annex. 'C  R.N.M. Valid for P Valid for P P.W. 7:78/1—39. R.M.B.A. Valid for P Valid for P Valid for P Valid for P Valid for P Valid for P Valid for R. 1 R.M.V. R.M.V. Valid for R. 1 R.M.V. R.M.V, R.M.V. R.M.V. R.M.V. R.M.V. Valid for R. 1 R.M.B.A. R.N.M. 84/1—71. 84/72 . 84/73—88 GONDA WEST. P.W. 7:85/1—22. P.W. 4:86/1—23. R.M.V. Valid for R. 1 R.M.V. R;M.V. Valid for R. 1 3 7 8 Valid for R. 1 Valid for P R.N.M. Valid for P Valid for P R.N.M. R.M.B.A. R.N.M. R.M.B.A. 88/3—4 • Valid for P P.W. 4:89/1—26. R.M.V. Valid for R. 1 ' 8 43 45 R.M.B.A. R.N.M. Valid for P R.N.M. Valid for P Valid for P R.N.M. Valid for P R.M.V. Valid for R. 1 R.M.V. R.M.V. Valid for R. 1 R.M.V. P.W. 11:93/3 (Ph. Ann. 'CJ) 94/1—8 . R.M.V. Valid for R. 1 Valid for P R.N.M. ↩
47 II tO 13, 17, LQ, Ex. V. 47/1 to 10, 14 to 16, 18, to 22, 24 to 42, 44 to v i, 5^to62,64,66 to8T. Ex.r.4S/22,47,4K,40,71, 80,81,83,RHtogo, L02, 105,106,107,131 & 133 EX. P. 48/ T tO 2T, 21 to 46, "JO 70, 7-1 to 79, 82, 84 to 87, to TO 1, 103. 104, 108 to : 132, 134 to 136. Fix. P. 49/1 to 3T, 33 to 46, Rx,P. 49'32,47ft: 131 to 130,132 to 169. Ex.P.50 T, 6to8. Ex. P. 50 '2 to 5- E.v. V. ↩