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REGISTERED No. D. 221

The Gazette of India

EXTRAORDINARY

PART II—Section 3—Sub-section (ii)

PUBLISHED BY AUTHORITY

No. 88] NEW DELHI, WEDNESDAY, FEBRUARY 15, 1967/MAGHA 26, 1888

Separate paging is given to this Part in order that it may be filed

as a separate compilation,

ELECTION COMMISSION, INDIA

NOTIFICATION

New Delhi, the 14th February 19G7

S.O. 597.—In pursuance of sub-section (6) of Section 116A of the Representa- tion of the People Act, 1951 as continued by section 63 of Representation of the People (Amendment) Act, 1966, the Election Commission hereby publishes the decision of the High Court of Judicature at Allahabad given on the 19th Decem- ber 1966 on the appeals and writ petitions from the order dated the 29th August, 1964 of the Election Tribunal, Allahabad.

First Appeal No. 305 of 1964. Connected with First Appeals Nos. 316, 326, 328, 341,of 1964 and Writ Petitions Nos. 494, 495, 496, 5173, 5174, 5215 and 5286 of 1964.

H O N ' B LE B. DAYAL, J.

HON'BLE J. N. TAKKU, J.

(Per Hon. B. Dayal, J.) All these connected matters arise out of the election of 34 Gonda Parliamen- tary Constituency held in 1962, in which the respondent Shri Ram Ratan Gupta (Congress) was declared elected after a recount and Shri Narain Dandekar (Swatantra) was a candidate who obtained the next largest number of votes at the recount although at the first count he was found to have obtained the largest number of votes The result after the recount was declared on the 11th of March, 1962. Election Petition No. 339 of 1962 was filed by Shri Narain Dandekar on the 23rd of April, 1962. Another Election Petition No. 340 of 1962 was. also filed by Shri Gomtl Prasad but since appeal No. 316 of 1964.arising out this petition has not been pressed before us, we need not say anything further about it and this appeal No 316 of 1964 is dismissed and parties will bear their own costs.

(407 )

In the Election Petition Shri Narain Dandekar contended that there had been systematic tampering of votes after the first count and before the recount and as.a result of this, a large number of votes which had been counted at the first count in his favour, were found to be invalid on account of multiple marking. Some votes which had been previously rejected as containing no mark, were tampered with the subsequently found to have marks for Shri Ram Ratan Gupta. Consequently, these tampered marks made subsequently after the tirst count should have been ignored and if that was done, the result would have been that Shri Narain Dandekar would have succeeded in obtaining the largest number of votes. On the other hand, the contention on behalf of Shri Rairj Ratan Gupta was that there was no question of tampering, that there were large number of mistakes in the first count and when these mistakes were checked at the recount, the correct result was arrived at and Shri Ram Ratan Gupta was rightly declared elected.

The Tribunal, after considering the case of both the parties in detail, came to the conclusion that the circumstances, with which I will deal in detail later, led to the inevitable conclusion that that there had been tampering of votes after the first count and before the recount. According to the Tribunal, there was no doubt that at least some of the votes had been tampered with and consequently in the circumstances of the case it was right to assume that all the votes which had been counted for Shri Narain Dandekar at the first count must be treated to have been validly cast in favour of Shri Dandekar and the additional marks observed on those votes at the time of the recount must be ignored, as also those votes which had been rejected at the first count for having no mark but were subsequently found to have marks in favour of Shri Ram Ratan Gupta must also be treated as invalid votes. While considering the circumstances the learn- ed Tribunal made remarks against the officers, who were in charge either of counting or of safe preservation of ballot papers and recommended to the Elec- tion Commission for action to be taken against them under section 137 of the Representation of the People Act, 1951, On these findings, the T'ibunal allowed the election petition of Shri Narian Dandekar, set aside the election of Shri Ram Ratan Gupta and declared Shri Dandekar to be duly e^cted. Against that decision, all these cases have arisen in this Court.

Appeal No. 305 of 1964 is the main appeal filed by Shri Ram Ratan Gupta against the order setting aside his election and declarmc Shri Dandekar to be dulv elected. I have already stated that appeal No. 316 of 1964 filed by Shri Gomti Pd. also against that election has not been pressed and his been dismissed accordingly, Shri C. M. Nigam who was the returning officer has filed appeal No, 326 of 1964 and also writ petition No. 495 of 1964 against the remarks made in the judgment of the Tribunal against him. Shri A. S, Misra, Assistant re- turning Officer has also filed aopeal No. 328 of 1964 and writ petition No. 494 of 1964 against the remarks made apainst him. Shri Krishna Madho Saran. the Treasurv Officer has filed appeal No. 341 of 1964 and wiit petition No. 5174 of 1964. Shri Kalicharan Jauhari, Nazir Sadar of the Collecforate at Gonda has filed onlv writ petition No 5215 of 1964. Shri Maqbool Husain, Elc-ction Inspec- tor has filed writ petition No. 5286 of 1964 as also Shri R, B. Jauhfiri, District E'cetion Officer has filed writ petition No. 5173 of 1964 all against the remarks made against them, Apart from these officers against whom remarks have been made in the iudgment of the Tribunal, the State of Uttar Pradesh has also filed writ petition No 496 of 1,964 as the Tribunal also made remarks which havo given a cause to the State to have a grievance arainst the judgment. I first pro- pose to Heal with the main aopeal filed by Shri Ram Ratan Gupt as all the rele- vant facts will have to be dealt with in that appeal. After disposing of that appeal. It win be convenient to deal with other appeals and writ petition filed by the officers and the State.

The Gonda Constituency consists of five assembly segments:

(i) Gonda East, fii") Gonda West, (iii) Gonda North, (iv) Mahadeva and fv) Mankapur. The first counting of this Constituency took t>lace on the 27th and 28th of February, 1962, At the time of this counting Shri Ram Ratan Gupta was noted as having obtained 80,902 votes while Shri Dandekar was noted as having obtained 82,478 yotes. It is not necessary to mention the votes obtained by Shri M. H. Rajgir and Shri M. K. Sinha, who were the other two contesting candidates and who obtained much smaller number of votes. At this first count, the counting of Gonda East was done in a room called 'the combined office' in the Collectorate at Gonda while that of Gonda North was done in a Shamiana on the lawn of the Collectorate Bt Gonda, The counting thus of both these places went on simultaneously on the 27th February, 1962. On the next day, the 2fith of February, 1962, the counting of Fonda West was taken up in the combined office, that of Mankapur in the Shamiana while that of Mahadeva was done In

another room called 'the meeting hall'. In these cases, we are mainly concerned with the counting that was done in the combined office because the largest num- ber of votes that had been rejected on the recount happened to be in Gonda East which were counted on the 27th of February, 1862 and the rest in Gonda West which were also counted in this room on the 28th of February, 1962.

On behalf of Shri Ram Ratan Gupta, it has been contended that the condi- tions under which the counting took place in the room, called the combined office on the 27th of February, 1962 were such that a large number of mistakes, which had been discovered on recount cannot be said to be extraordinary. As the con- dition improved on the 28th of February 1962 when Gonda West was counted the mistakes we~e much less. But still the mistakes did take place on the 28th of ^February, 1962 also aj3 all the difficulties had not been removed.

In this connection, a few figures are worth noting before starting consider- ing the cases of the respective parties. At the first count, the total number of votes rejected was 7,070, Out of this, as many as 3,600 votes were rejected on account of having multiple marking, At the recount, 1,928 votes were rejected on account of multiple marking which had, on the first count, been counted for .Shri Dandekar, out ut this number of 1,828 as many as 1,791 votes had been wrongly counted in Gonda East alone, as appears from the chart (Ext. P-31) on the record, The lead of Shri Dandekar in the first count which was by 1,576 votes was completely overcome by this reduction in Gonda East, apart from other votes which Shri Dandekar lost in other segments and a few votes which Shri Ram Ratan Gupta gained at the time of recount.

To explain this difference which happened at the two counts, the theory put forward by Shri Dandekar is that from the very beginning as soon as it appeared .at the time of the first count that the lead of Shri Ram Ratan Gupta was dwind- ling away when the last segment of Mankapur was being counted where Shri Dandekar polled heavily, all the officers connected with the counting of votes -as also with the safe custody of the ballot papers must have secretly combined to see that the ballot papers were so tampered with before the recount that Shri Ram Ratan Gupta the Congress Candidate got the largest number of votes. Although there is no direct evidence of tampering with the ballot papers, a large number of circumstances have been pointed out from stage to stage which, according to Shri Dandekar, unmistakingly proved that a'l the officers concerned were not acting honestly and were acting deliberately with that aim. Upon those circumstances, an inference is drawn that the ballot papers must have been tampered with otherwise this result would not have happened.

On the other hand, on behalf of Shri Ram Ratan Gupta, evidence had been led to show that on account of the pressure of Raja of Mankapur on the voters and the sympathy of the voters with the Congress candidate, a large number of them decided to vote for more than one candidate and even though the Congress workers attempted to dissuade the voters from taking that altitude for they •would spoil their vote, they did not seem to change their mind and that is why such number of votes were found to be spoi'ed on account of multiple¹ marking. Even at the first count more than six thousand votes were rejected on that ground and it was also contended that the condition of the room (combined office) where the counting of the Gonda East took place on the 27th of February, 1362 was such that mistakes were bound to occur. According to Shii Ram Ratan Gupta, lighting arrangement was wholly insufficient, the room was badly congested and the parties agents did not get sufficient opportunity to see whether the ballot papers wore being properly distributed to the candidates, so that there was no real check on what the counting clerks were doing. Coupled with this fact, some of the counting clerks and the Supervisors were also in sympathy with the Swatantra Party candidate as he was being supported by the Raja of Mankapur who had a great influence over the pettv officials in the locality and who were acting as counting clerks and Supervisors. It is said that on account of these factors, a large number of invalid votes were counted for Shri Dandekar. It is pointed out that this was known to Shri Dondekar and his agents and that is why he had been strenuously opposing a recount from the very beginning and when it was finally decided that there would be a recount, he started clamouring that there -was likely to be tampering for that was the only basis upon which he would escape the consequence of the discovery that a large number of votes had been counted for him which were bound to be rejected. I have now to consider these respective claims and I propose to start from the very beginning, event by event -which according to one or the other party affects (he result of the lecount.

The first point for consideration is the condition of the combined office where the relevant counting was done on the 27th and 28th of February. 1962, at the time of the first count. This office was inspected by the Tribunal and the In- spection-note is on the record, From this note, it appears that the room was

2O'x35' the length being north and south. It was closed on all sides except & tl e e a ⁸t Twri* t h* e a st t h e re w e re t h^e doors and beyond there doors there was a verandah. There was open space beyond the verandah. The only source of natural light Into the room was from the east. From the evidence, it is also admitted that in this room at the time of the counting at the southern end there was the table of the Assistant Returning Officer. In front of his table extending towards the north, there were two rows of seven tables each and two tables were placed on either side of a door leading to the roam on the west. There were four benches meant for seating the counting agents of the candidate Two of them were placed towards the eastern wall between the three doors One was against the western-wall of the room and another against the northern wall, both adjoining the north-west corner of the room. In this room there were four hght-pomts. It is also admitted that the verandah towards the east was also closed by placing Qanat towards the eastern arches which were the main source of light. There is a controversy between the parties that on account of the clos- ing of the verandah will the Qanats, the room had become very dark even dur- ing day and on the first counting day i.e., on the 27th of February 1962, the lighting arrangement waa insufficient. But according to the other side, there was no dearth of light during day and the natural light was sufficient to do the work of counting. Even at night, there was sufficient light. Both the parties have led evidence on this point. On behalf of the respondent-petitioner, four witnesses were produced to prove that there was sufficient light, P.W. 4 (Dasrath Pd. Shukla) is the first •witneas, who has deposed about this matter apart from the election agent of the respondent. The appellant also admits that Dasrath Pd. Shukla was one of the counting Supervisors on those dates. He has stated that either during day of during night he did not feel deficiency of light. He, how- ever, admitted that two or three patromax lights were placed in the varandah which was to the east of the room at the time of the counting. The next witness is P.W. 5 (Sri Bahadur Singh). He stated in examination-in-chief that he did not find light to be insufficient. His presence, however, as a counting clerk has been challenged by the other side. The duty list which determined the names of persons who were to act at the time of the counting does not contain the name Sri Bahadur Singh but contains the name of Sheo Bahadur. It is contended that this witness was named mere¹y 'Bahadur Singh' and 'Sri' had been added before this name in order to make his name similar to Sheo Bahadur who was in the duty list. The appellant has produced this Sheo Bahadur (R.W. 3). He has stated that he was the person who was appointed as Supervisor at the time of the counting. He has also stated that he knew Sri Bahadur Sinrti but he was not In the counting hall doing any work. From the evidence of P.W, 5 (Shri Baha- dur Singh) it is pointed out that his statement intrinsically indicates that ho was not in the counting hall otherwise he would not have made such a statement. In the first place, in paragraph 7 of his statement, he states that he did not know the name o:f the other clerk who was counting on his own table. He admitted that Sheo Behadur Srivastava had signed the ballot papers as Supervisor on that table. In paragraph 17 he states. "The voting papers of the Assembly as well as of the Parliamentary Constituencies were separated. Both of us, that is, myself and the other clerk used to deal with the Assembly votes and thereafter that ballot papers of the Parliamentary Constituency." This is obviously a wrong statement. According to the instructions as well as according to the other evi- dence, after the ballot papers had been taken out of the ballot-box, one clerk used to deal with the Parliamentary votes and the other clerk was to deal with the Assembly votes. His statement clearly indicates that he did not know the procedure that was being followed in the counting hall. He has also stated in his cross-examination (paragraph 11) that lights were on since the beginning of the counting. In paragraph 12 he further stated that in the evening patromax lights were placed In the verandah which is also contrary to P.W. 6 and P,W. 7. I am, therefore, not prepared to p^ce any reliance upon this witness. The next witness is P.W. 6 (Ram Niwas). He says that he was the counting clerk in the Gonda Parliamentary Constituency and did that work on the 27th and 28th of February, 1962. In his examination-in-chief he stated that he did not find the light insufficient. His presence in the counting hall was also challenged by the other side. He has stated in cross-examination (Pa-agraph. 12) that he was the Basta Bardar in the record room. But in the duty list one Ramniwaj Sineh was mentioned as the person to take part in the counting. This Rnrrmiwn] Sln";h Is described as the record-keeper. A Basta Bardar or the record-liftfr could not have been described in the duty list as a record-keener. R.W. 2 (Shri Muitiba Husain) who was the clerk in the Judicial Magistrate's court at Gonda and was also a Supervisor at the time of counting, has clearly stated that he knew Ram Niwas who was the record-lifter in the Colleetorate but he was not present In the counting-hall, This witness Shri Mulliba Husain was the Supervisor at table No. 16 and P.W. Ram Niwas also claimed to have been a counting clerk at. table No. 16. I am Inclined to prefer the statement of R.W. 2 (Sri Mujtiba Husain)

and find that Ram Niwas did not act as counting clerk at table No. 16. He has also made several wrong statements in his cross-examination indicating that he was not in the counting-hall. In paragraph 13, he stated, "It is wrong to say that tables Nos. 15 and 16 were on either side of the door". This statement is definitely wrong. All other evidence in the case indicates that tables Nos. 15 and 16 were on either side of the door leading to the western room. He then .states in the same paragraph (13) that there were no chairs in this space between the two rows of tables. But it is an admitted fact that the chairs of the Super- visors were placed towards this common passage left between the two rows of table. He then stated that the benches for the counting agents were placed by the walls on all the four sides of the room. This statement is again wrong. Admittedly, no bench was placed towards this southern wall of the room on which side the table of the Assistant Returning Officer expected. In paragraph 24 he has disclosed that he is a Bisain Thakur and Raja Sahib of Mankapur is also a Bisain Thakur and Shri Debi Datt Singh an employee of Raja Sahib of Manka- pur was his cousin. It may be that he had been produced on account of that •connection with Raja Sahib of Mankapur, who was in real control of the affairs of the Swatantra Party at Gonda. The last witness produced by the petitioner was PW. 7 (Hanuman Pd.) In his examination-in-chief he stated that he work- ed as a counting clerk on the 27th and 28th February 1962 in the combined office and was placed at table No. 14. He has stated that he did not find the light in- sufficient and the work was not hampered due to want of light. His presence in the counting hall was also challenged but I do not see sufficient reason to hold that his presence in the counting hall must be doubted. In paragraph 12 of his cross-examination, he stated that the patromax lamps were lighted and placed in the verandah after the tent wall was put up and the electnc lights were on when the counting started in the room. When he was asked further as to why the artificial lights were on in day time when the natural light, according to him, was sufficient, he could not explain and merely said that he could not say why- lights were on during day time. He also admits that when night came no bulbs were changed nor more powerful bulbs were placed in the room.

On the other hand, on behalf of the appellant. K.W.I (Ramanath Misra) election agent of Shri Ram Ratan Gupta, (R.W.2) (Shri Muitiba Husain) counting Super- visor RW 4 (Shri Achutanand Tripathi) counting clerk at the time of this count- Ing R.W.6 (Shri Parmanand Agnihotri) who was counting agent on behalf of Shri Ram Ratan Gupta and B.W.14 (Shri Bhagwati Pd.) clerk of Shri Gomti Pd. Vakil, Gonda who was acting as the counting agent on behalf of Shri Gomti Pd. have all stated that on account of the placing of the Qanat towards the east of the verandah, the light in the room had become very insufficient Many people com- plained about the light and the Assistant Returning Omcer informed them that efforts were being made to improve the light. In view of the fact that the peti- t i o n e r ^ wn witnesses have admitted that lights were on during day time and that the patromax lights were placed in the verandah even during day time which leavef no room for doubt that atleast the natural light during day time waa insufficient to carry on the work. To this extent at least, the witnesses produced hv the netitio4r were wrong in saying that the day light was sufficient to carry on the work A p ^ t ^ om "fis oral yevfdence, there U also a document which had Seen summoned Pfrom the Nazir, Collectorate at Gonda This ^ * s l le d^^ 27th of February 1962. It starts with a note by one Shri B. S. Bark addressed to

thP Sirdar Nazir and states' "I have been directed by Shri A. S Misrato ask youmammmSpited ty'tSBe&Offl^h.™ " t o b" fitted .Ida™{{^{{FOOTNOTE *}}}} Pfg^rfWBSKSm

Officer who himself saw the condition of light. He would naturally direct Shri B. S- Bark who was one of the Officers working in the room to ask the Nazir for the necessary arrangement of light. A written complaint was not necessary. I, there- fore, see nothing improbable in Shri B. S. Bark writing to the Nazir, Sadar for the- arrangement of six patromax Jamps and four high-power bulbs. Naturally the gas lamps could not be placed Inside the crowded room which would have produced, bad smell and made the working more difficult. Therefore, high-power bulbs were essential inside the room. The next criticism is that although shi B. S. Barlt wanted four bulbs of either 100 or 150 Wts. and patroxax lamps yet the Nazir, Sadar while writing to the Inspector asked for fixing Tour bulbs of 150 Wts. In the room and two bulbs of 150 Wts, in the verandah and it is contended that the Nazir Sadar, could not possibly imagine that light was needed in the verandah when there was no mention of it in the note of Shri B, S. Bark. I am unable to see any force in this argument either. Since electric bulbs were likely to be arranged quickly the Nazir asked for 6 bulbs. The arrangement of patromax lamps way bound to take time. He, therefore, directed the Election Inspectior to immediately place four, high power bulbs Inside the room and two bulbs in the verandah- Moreover, the peon who had taken the slip to him must have given this necessary Information that light was needed inside the room as well in the verandah The Election Inspector thereupon asked the Sadar Nazir, to supply the necessary bulbs out of the twenty-five bulba, which had been supplied by the Election depait- ment to the Sadar Nazir and the last note naturally explained the whole positions, by saying that all the twenty-five bulbs that had been supplied were not of such high power and had otherwise been used already at essential points. They could net, therefore, be of any use for the purpose required. This note was made by Shri K M Saran, who was the Offlcer-in-charge of the Nazarat and the Officer naturally addressed that final note to the Election Officer who was Incharge for arrangements of elections so that final information may reach him and he may make the ultimate arrangement. Thus in the document itself I see nothing im- probable to indicate that this document was a forged one. Moreover. If it had been forged for the purpose of this case, there was no reason to involve so many persons in this note and it was also not difficult 'to support the other part of the case put forward on behalf of Shri Ram Ratan Gupta that ultimately arrangement was made for high power bulba on the 28th of February, 1962, though it could not be made on the 27th of February, 1962. The note stops short after showing Inability on the Nazarat to supply the necessary bulbs. In this connection the statements .of these two witnesses Kalicharan Jauhari and Shri K. M Saran hav" also been criticised. Shri Kalicharan Jauhari has been produced as R.W. 19. He was the Nazir Sadar in the Colleetorate at Gonda. He stated in examlnation-in- chief that a peon brought a slip (Ext. W.R. 76). for light. He then wrote a note addressed to the Election Inspector and he proved that note and in his own signa- ture He then received a reply of Shri Maqbool Husaln the Election Inspector. After receiving this note, he took it to the Officer-m-charge and therefore Shri K M Saran wrote out that last note. He also states that before taking the paper to' Shri K M Saran, he had written out a note which he later struck out. In that note he had stated "Bulbs of only 75 Wts. were supplied and that I have no bulbs of 100 Wts "But he admits that he cut out that note because it was factually wrong. The last note written by Shri K. M. Saran was in red ink. He proved that note bv Shri K M Saran and he states that this note was sent by a peon to the Elec- tion Officer through Shri R. B. Jauhari through a peon who after some tiros return- ed it and Informed him that the Election Officer was not available to hiTi in the Colleetorate compound. But the peon had met the Election Inspector who had told him that arrangement was being made for light. The witness then says that he received back the note and it remained with him. This statement of the Nazir has been criticised firstly on the point as to why he kept such a useless note all the time with him till it was summoned by the Tribunal. No explanation was asked from the witness and, therefore, the criticism has no justification, It may be that after receiving the note, he put it in his desk and it remained lying there tiU it was demanded or it may be that he filed up every paper which he received In connection with the election, In cross-examination he has explained that ho had been supplied 25 bulbs of 75 wts. for purposes of the ufie in connection with the counting He had used these bulbs before the demand came, It was the duty nf the election office to supply the necessary articles at the Nazarat which was a so nelpfng™ maWng arrangements and, therefore, when the need came to him he asked the Inspector of Elections to make the necessary arrangements. He stated that £f h a d k e p t no note how the twenty-five bulbs supplied to him were utilised. HP was asked when he had nothing to do with the arrangement tor elections why ?M he not ask Shri BS Bnrk who had sent a note to him, to write to the Election

must have been busy in counting and naturally the Nazir Instead of disturbing him ^U e l? ^ P^per to send the note to the right-man. He was also asked that ™ the note there was no mention of '2' bulbs for the verandah and how did he make mat mention in his note. He merely stated that he did it on his own initiative I see nothing wrong in hjs taking that initiative if the work could be facilitated that way. He was then asked as to why he placed that note before Shri it M Saran and he stated that he was the OfficeiNin-charge of the Nazarat and he thought It fit to obtain final orders from him on this matter. He has denied the sugges- tion that this slip Ext. W.H. (76) was procured after counting. Shri K M ' Suran who was the Treasury Officer has been examined as R.W. 24. In his examlnalion- In-chief he has stated that the Nazarat Office used to provide facilities to help the District Election Officer in connection with the election and counting of votes that took place in February, 1962. He was then shown Ext. R. 76. He has proved his note in red Ink and he further stated that he had no knowledge as to whether any compliance was made In this matter or not. Nothing important has been brought Dut in his cross-examination on this point. In this connection it may further be noted that the Nazir and the Treasury Officer had really not much to do with the counting of votes. They were merely helping the Officers concerned in order to facilitate their work and it is most unnatural to expect that these two officers would go to the length of forging this document for the sake of helping one of the candidates in the result of counting. It may also be noted that the Nazir having made a note en the paper had to cut it out as it was factually wrong. If this whole document had been forged for the purpose of this case, it could not be expected that such a mutilated note would have been prepared for this purpose. If a wrong note had been made, there was no difficulty In tearing off that slip and preparing another one which could contain nothing wrong. The existence of this erroneous note which the Nazir had to cut out, to my mind indicates that it was a genuine document which had been made for the purpose which it indicated. This docu- ment was produced after being summoned by the Tribunal and I am of the opinion that this document also fully corroborates the evidence produced on behalf of Shri Ram Patan Gupta that there was deficiency of light on the 27th of February 1962.

Another point In connection with the counting of votes on the 27th of February, 1962 is the placement of the agents of the candidates and their ability to check the wrong assortment of ballot papers. On this point the contention on behalf of Shri Ram Ratan Gupta is that the counting agents of the candidates were not in a position at all to note the condition of voting papers and therefore to raise any effective objection with regard to particular paper 'either being placed in the valid voles of one of the candidates or to its being placed in the doubtful vGt 414 THE GAZETTE OF INDIA EXTRAORDINARY [PAW I I-

therefore, satisfied that the case put forward on behalf of Shri Ram Ratan Gupta on this point is definitely more reliable and the conclusion of the Tribunal that there was sufficient light and that ajrents were in a position to do their checking properly cannot be supported.

At this stage it will be convenient to deal with one more argument on the question whether P.W. 5. (Shri Bahadur Singh) and P.W. 6 (Ram Niwas) were present in the counting hall on the 27th and 28th of February. 1962, I have held above, that they did not. A document relied upon by the learned counsel for the respondent In this connection was (which the Tribunal summoned from the District Magistrate and the Returning Officer), a chart prepared on the 27th of February, 1962, allotting different tables to different persons in order to ascertain whether these witnesses had attended. The Tribunal was informed that no such chart was prepared, However, some witnesses have spoken about a chart which was either with the Assistant Returning Officer or with the Election Inspector from which different tables on which different officers were allotted to work, were read out. Although the evidence, on this point is not very uniform and it is doubtful whether It is sufficient to prove the existence of any auch chart but I do not consider it necessary to examine this matter, in detail because I think that no importance can be attached to this chart even if it was prepared. Admittedly, the duty list which has been placed on the record, gives the names and particulars of the offi- cers out of whom alone appointments could be made for actual work. I have already examined that these two witnesses do not appear in that duty list, ihe chart could have at the most mentioned the names only and that would not have Improved matters. Even if at the time of appointing officers to particular tables some sort of a chart had been made out, it may have been destroyed as unneces- sary and useless and may not have remained on the file. No importance, therefore, can be attached to such a chart and the observation of the Tribunal that Sri Maqbool Husain the Election Inspector deliberately suppressed the chart cannot ba sup- ported and seems to be an unnecessary remark.

to expedite the- counting and flInish very earxy^ Qu h ad b e en It become apparent that the lead acquired hy ^ • offic^ gnd ^ D l s t r i ct

dwindling away and had practically ^ p e a r e d. tney• ^ ^ ^ f a ct

their writ petitions: as well as ^ ^ ^ e V i d e n ce has been produced. The first

.bout 9 P-n>;Wl>=5. f S * ™ " ^ ,™ "$5? S S s t a nt Returning Officer Shri

ftg^SKKt S e S / K™ "?"r .0 the .uspido .romed much Irfer.

Ext. P. 23 is a letter dated the 2nd of March, 1962 written by Shri Dandekar him- self to the Chief Election Commissioner New Delhi, recounting the events at the time of the first count. In this letter there is no mention of the Returning Officer having come to the Shamiana at about 9 p.m. and" having gone away in thia sus- picious manner when the tables started turning. On the contrary in paragraph 4 of the letter, he states, "about this time, the Returning Officer (Shri C. M. Nigam I.A.S.), who is the Deputy Commissioner and the District Magistrate of Gonda and who was out in camp during the day returned to Gonda''. The phrase, at about Ihis time "in the above sentence refers to the statement of facts mentioned in the previous paragraph. It is, therefore, important to quote the relevant sentences Irom the above paragraph" the counting went in late Into the night and was finish- ed after the mid-night The counting of this assembly segment was the last to be completed and I had secured such a large number of votes as not merely to overtake the deficiency of the other four assembly segments except for the result of the postal ballots which had still to be opened, I was thus first and >ie was second and at this stage a number of objections to the counting of Mankapur As- sembly segment were started by or on behalf of Shri Ram Ratan Gupta each of -which was specifically considered on merits by the A.R.O. and rejected by him by the orders passed in writing on the spot. Only two points of time which are refer- red to in this paragraph are either the finishing of the counting at 12 In ihe night or the objections made on behalf of Shri Ram Ratan Gupta which were rejected by the A.R.O. Both these events took place well after 9 p.m. This letter which was first written at a time when the events were fresh clearly negatives the theory of Shri C M. Nigam having visited the Shamiana at 9 p.m. and waited there till he found that the results were changing. The first application by Shri Ram Ratan Gupta was given at 10.40 p.m. and was rejected by Shri A. S. Misra at 11-30 p.m. It is, therefore, quite clear that according to this letter Shri C. M. Nigam, the •Returning Officer came from the tour much after 0 p.m. and the story of his having come to the counting Shamiana at 9 p.m. seem to be an after thought and no reliance can be placed upon it.

According to the previous arrangement, the results were to be declared at 10 p.m. on the 28lh February, 1962. But the counting of Mankapur segment did not finish till 10 p.m. The case of Shri Dandekar is that it was over by 12 mid- night and that the Returning Officer should have come and declared the result at that time. But the case of the other side is that the counting did not come to an end by 12 in the night but it continued upto 12 45 a-m. whereafter other finishing processes were to be taken up. This matter, has become important because at 12.25 am the Returning Officer passed an order that the results would be declared at 11 a-m on the 1st March, 1962 and not as previously arranged at 10 p.m. on the 28th February, 1962. According to Shri Dandekar this order was wholly unjustified because the counting had already finished at 1225 and this indicated that the order was only meant to give time to Shri Ram Ratan Gupta so that he may be able to do something in the matter and the suggestion, in fact, Is that at about 10 p,m- when Shri Ram Ratan Gupta and the Returning Officer went away from the Shamiana they had already decided upon postponement of the results and doing such acts as would make it possible for the ballot papers to be tampered with, so that the election result may ultimately again turn in favour of Shri Ram Ratan Gupta. It is, therefore, important to consider whether the counting of the Parliamentary constituency in respect of the segments, came to an end at 12 midnight. In the petition it was, alleged, "At midnight when the counting in this segment was over and the figures being tabulated for the last round of counting and when it was clear that the petitioner had won the election by an over all majority of about 1,600 votes (excluding the small postal ballots) the election agent of respondent No. 1 presented an application to the A-R-O- for postponing further operation until next morning and requesting that votes in this Assembly segment be then recounted. This too was refused by the A.R.O in writing .... Soon thereafter the Returning Officer (Shri Nigam) himself sent a note to the AR O- from his bungalow stating (in fact contradiction of his own earlier instructions given through the District Election Officer Mr. Jauhari) that he would count the postal ballot papers nexf day and would declare the result of the Parliamentary election thereafter."

The insinuation in the above paragraph clearly is that the last attempt was made by Shri Ram Ratan Gupta to have postponement of the declaration of the result by an application to the A.R.O. after the counting was over, which wos refused. Thereupon the Returning Officer himself sent an order postponing the declaration of the result obviously as a matter of prearrangement with Shri Ram Ratan Gupta. In reply to this paragraph it was stated in the written statement that sending of the note, by the Returning Officer from his bungalow was admitted which reached after 12-30 a.m. when the counting was nearly finished-

It was denied that the order was in contradiction of any earlier instructions by him through the Distt- Election Officer. The order was necessary because accord- ing to the Original arrangement, the result was to be declared at 10 p.m. on the 28th of February, 1962 but this was not possible as the counting had not finished. The insinuation contained in the paragraph is also denied- The oral evidence or* this point in as follows: P W 2 (Shri V. B. Bhadkamankar) has stated (para- graph 25) that the counting of all the segments including that of Mankapur had come to an end by 12 mid-night on the 28th of February, 1962. Only postal ballots had not been counted- He further stated that after the counting was over, they were waltinj; In the Shamiana for the Returning Officer to come and have the result declared after counting the postal ballot papers. But instead, a note came with time noted as 12-25' intimating that the counting of Mankapur segment was in progress and was likely to continue for two or three hours more and the result would be declared the next day at 11 a.m. when he received that note from the District Magistrate, he signed it at 1 am nnd made a note on the document marked Ext. P, 42. He further states that immediately after making that endorse- ment, he wont to the District Election Officer where he wrote out an application- addressed to the Returning Officer and handed it over to Shri R, B. Jauhari, Assistant Returning Officer. This application, according to him, was presented on the 1st of March, 1062, and this application was marked as Ex- P. 43. The- Assistant Returning Officer made an endorsement on this application which is marked as Ext- P 44. Thereafter, he went back to his election office and booked a trunk call to Delhi and had a talk with Shri Dandekar- He told him every- thing that had happened.

At 1hi.s stage Jt may be useful to note the contents of the order passed by the Returning Officer postponing the declaration of the result of the election. He states in the order as follows:—-

"As the counting of votes of the two constituencies Tulsipur and Mankapur is continuing and Is likely to continue for two or three hours more and it is now 12.25 a.m. all the contesting candidates are hereby informed that tl)c result of 33 Bslrampur and 34 Gonda Parliamentary constituency will be declared on the 1st March at 11 a.m. in my office in the Collectorate"- It is to be noted that in this order the reason for postponement of the result was that at 12.25 a.m. the counting of both Tulsipur and Mankapur segments was continuing. It has already been seen from the letter of Shri Dandekar himself that the Returning Officer had returned from tour at about midnight, It is stated by Shri R- N. Misra R W 1 that having come back from tour the returning officer visited the counting at about midnight. He must have enquired about the progress in counting and he obviously learnt that the counting of Mankapur regarding 34 Goda Parlia- mentary constituency as also of Tulsipur of 33 Balrampur Parliamentary consti- tuency was still continuing and was likely to take some more time. In this situation, if he did not consider It practicable to keep on waking for two or three hours more that declaring the result of these Parliamentary constituencies one after the other as the counting came to an end, he does not appear to have acted dishonestly Any officer in his position may have bona fide considered that a situation had been reached when the postponement of the declaration of the result had become necessary. Section 60 of the Representation of the People Act, 1951 undoubtedly provides that the Returning Officer shall forthwith declare the result of the election when the counting of votes has been completed Rule 60 of the Conduct of Election Rules, 1061 is as follows "The Returning Officer shall, as far as practicable proceed continuously with the counting and shall, during any interval when the counting has to be suspended, get 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 fix their seals and take sufficient precaution for their safe custody during .such Intervals " As a result of the order of the Returning Officer, two things happened The counting of the postal ballot papers was continued except that of postal ballots, which were to be counted by the Returning Officer himself when he came the next morning for declaring the result, and the result was not declared then. It is, therefore, contended that this rule 60, which was mandatory and enjoined the continuance of counting votes till it came to an end, was infringed I am unable to agree with this contention, for this rule provides that the counting would "cotlnue as far as practicable" and in the situation in which tho 'Return- ing Officer was, it cannot be said that he was very unreasonable in thinking that it had become impracticable even to continue counting of the postal ballot papers also. Since the postal ballot papers had not been counted section 66 was not contravened and when he counted the postal ballot papers the next day he could have declared the result on the 1st March, 1962. I, therefor" think that by

this order OH the statement of fact in that order none of the provisions of law was. infringed. I will now look into some further evidence, on the fact stated in this order that the counting of Mankapur and Tulsipur. had not finished upto 12.25 a.m. is correct or not. There is a note on this document by Shri V.B. Bnadkamankar stating tnat the counting of Mankapur constituency was over at 12 midnight and he had put his signatures indicating the time thereof as 1 a.m. Shri R. N. Misra the election agent of Shri Ram Ratan Gupta has also signed this document giving the date as 28th of February, 1962.

The letter of Shri Dandekar (Ext. P- 23) dated the 2nd March, 1962 addressed to the Chief Ejection Commissioner is again important. He states in paragraph 3(d) as follows; "Mankapur, This Assembly Constituency segment, of Gonda Parliamentary constituency was counted at the place notified on 28th of February, 1962. The counting went on late into the night and finished after midnight" thereby contradicting the statement and note of Shri V- B. Bhakamankur men- tioned above that the counting had finished at midnight. Another document which is relevant in this connection is Ext. P- 18 order passed by Shri S. B. Mjjsra, Assistant Returning Officer on the application made by Shri R. N. Misra, election agent of Shri Ram Ratan Gupta requesting him to postpone further counting and to recount those which had already been counted. In this order Shri S. R- Mlsra has stated the time of receiving the application as 10-45 p-m- and In para- graph 5 of the order he states, "Totalling is still in progress. The total upto polling station No. 7G is yet ready and It tallies with those election agents and candidates who have prepared the statements of totals.'' This order was pasged at 11.30 p.m. It is, therefore, indicated by this order that at 11.30 polling station No- 7fi had been counted and the totalling of that round of polling stations wa3 going on. Since there were sixteen tables at the counting place, each round of counting would complete 16 polling stations- In this way 76 polling stations would Indicate that fifth round had been completed and after completing this, the sixth round would have started and admittedly each round had taken, on an average, two hours and it was not possible to expect that the sixth round would have completed within half an hour. From this order also it appears that the counting of the sixth round could not have finished before 12.30 or 12.45 a.m. Through ou1 <\c petition of Shri Dandekar no allegation has been made that this Assistant Returning Officer was also deliberately passing orders which were not correct

The letter (Ext. P. 23), written by Shri Dandekar which has already been conside ed was shown to Shri Bhadkamankar and he states as follows: "As far as I ascertain from this letter In the last paragraph ."5 "at this stage" refers to the end of countings of Mankapur segment- At 11-30 p.m. the counting was ending. The statement that R.O, returned to Gonda at the time when the counting was ending is not correct." He also stated that he was not aware that Shri Dandekar had stated that he had obtained information of this letter from the witness. Referring to his own note under the order of the Returning Officer postponing the declaration of the result, he stated, in cross examination that in his endorse- ment he referred to the time when the actual counting came to an end and did not refer to the other processes which would be required before the result could be declared. He subsequently stated that the end process after the counting was completed, would have taken about one and a half hours. In this connection It is also important to note that at 12-30 a.m. Shri V. B. Bhadkamankar himself made an application to the Assistant Returning Officer for the declaration of the result and in this application he does not say that the counting had already come to an end at 12 midnight. This application is Ext, P.A.A. It was presented, as stated by himself at 12-30 a.m. on the 1st of March 1962- Tho application Itself is dated 1st March, 1962- But it does not give any time and states, "I have to request that as the counting in the last Assembly Constituency of the Gonda Parlamentary contltuency is over, the result of the Parliamentary election may please be declared as provided In the Act". He does not say In this application that it was already over at 12 midnight and that they had been waiting for half an hour unnecessarily as stated in the witness box. Shri Dandekar in his state- ment (paragraph 82) has explained his letter (Ext. 23) in which he had stated that the counting went on late into the night and was finished after midnight, by saying that there, he had referred to the completion of the entire process of counting which involved after the actual counting such as making of packets of the counted ballot papers etc. and he had been Riven that information by his election agent. The Returning Officer also had reported the matter to the Commissioner by his letter Ext- R. 4. In this letter he states, "As Returning Officer of Balrampur-Gonda Parliamentary constituencies I had originally fixed time for declaration of their results at 10 p,m- on the 2Bth of February, 1962 but

this schedule could not be adhered to as the counting of Tulslpure, Mankapur assembly constituencies, finished between 4 am- and 1 a.m. respectively on the 1st of March, 1962- I, therefore, postpone the declaration of the result at 11 a.m. today.". From this order also, it appears that the counting of Mankapur segment of the Gonda constituency came to an end sometime between 12 midnight and 1 am. on the 1st of March, 1962. It was also contended on behalf of Shri Dandekar that form No. 20 relating to Mankapur assembly segment (Ext P- 31A-. on the record} indicate that it was prepared and signed by Shri S, R. Misra A.RO- at 1-15 a.m. and it was therefore, contended that this form having been prepared at 1-15 a.m. and it is admitted by Shri R. N. Misra that it takes about 90 minutes, after the counting is over to finish the whole "process, it would be clear, •calculating back from 1-15 a-rn., that the counting must have come to an end at about 12 midnight. I am unable to agree with this line of argument- Under the instruction this form No- 20 itself should be completed within half an hour or so of the completion of counting of votes [vide instructions to R. O. para 15(p) Ch. VIII]. This would indicate that form No. 20 of each segment is usually completed within half an hour after the counting of votes, is finished. From the time given on this form No. 20 it would appear that the counting must have finished about half an hour before this i.e- at about 12-45 a.m. on the 1st of March, 1962- Preparation of form No. 20 is not the last act to be performed after the counting is over. Shri Bhadkamankar P.W. 2 has admitted. "The Assistant of the A-R O- alongwith two or four clerks was checking both valid and rejected ballot papers after the counting had been completed at the counting Supervisor's table including rejections by the A.R.O. The rejected ballot papers by the A-R.O. were also being checked by the same staff- In "the petition itself (paragraph 21) the process adopted at the time of this counting has been described and in the last paragraph (10-x) it is stated as follows. "As the counting of votes cost at each polling station was thus finally concluded the figures were entered in the result sheet (form No. 20) and the counted and sorted bundles of the ballot papers of each polling station were then passed on to other clerks for being packed flat in single packets, ono of each polling station, the same being then labled and signed by the A.R-O- after which they were sealed". Here no mention is made about re-check by the other clerks but it is stated by P-W 2 and R.W. 1. The signing of form No. 20 thus did not finish the ta^e process and where Shri R, N- Misra has stated that it takes 90 minutes, he doe.s not mean that form No- 20 is signed after one and a half hours when the actual, counting comes to an end.

On behalf of Shri Dandekar one witness Shri Kartiani Datt has also been produced. He is P.W. 10 and he states that he was a worker for Capt. Ramgarib, Raghoram Pandey and the petitioner at the time of the election- According to him he remained outside the counting hall where the counting of Gonda West Assembly segment was taking place. Since Capt. Ramgarib had been losing "badly, he went away to Gonda city where he was staying. At about 9 pm, he was informed by his younger brother that the petitioner Shri Dandekar was winning on account of counting of Mankapur constituency. The witness, there- fore came in a jeep car to the place of the Shamiana. There he reached at about S-30 p-m. and at about 9-45 p-m. he saw that Shri'C. M- NIgam, the Returning .Officer came back to the 'Shamiana and he went to his office. Ten minutes later, respondent No. 1 also came out of the Shamiana. At about 12-15 a.m. he came to know that the counting had come to an end. He waited for 10, 19 minutes for the declaration of the result but the Returning Officer had riot come. He there- fore went to the bungalow of the Returning Officer (Shri C. M- Nlgam). There he contacted the peon and he came to know that Shri Ram Ratan Gupta was Inside the bungalow talking to Shri NIgam. After about five minutes, Sri Ram Ratan Gupta came out, sat in his car and went away. He then sent information about his arrival. The peon then told the witness that the Returning Officer wanted to know the purpose of his visit. The witness sent "Information that the counting of votes had finished and that he should come for the declaration of the result. The peon came back and told him that the witness should go to the place of the counting and that the Returning Officer would reach there shortly- The Returning Olllcer, however, did not reach there and after sometime he sent a note that the declaration of the result was postponed. He also states that when he came back from the place of the Returning Officer, he had informed Raja Sahib of Mankapur. Shri Raghoram Pandey and Capt. Ramgarib, who were there and several other persons that the Returning Officer had promised to come for the declaration of the result- It is significant that although the Returning Officer had given him a clear promise that he would come shortly to declare the result and he had Informed of this promise to everybody at the place of the counting. There is no mention of this false promise made by the Returning

Officer either in the letters written by Shri Dandekar to the Chief Election Commissioner reporting against the conduct of the Returning Officer nor is ther& any mention of this Kartyani Datt story in the election petition "Itself. Although in paragraph 38 (sub-paragraph 3) a complaint is made that the order of the Returning Officer postponing the declaration of the result was In flat contradiction of his own earlier Instructions through the District Election Officer Shri JauharJ to finish the counting quickly at about 9 p.m. so that the result may be declared as originally scheduled, yet no complaint Is made about his having broken his own promise to this Kartianl Datt made after the counting was over that he would be coining shortly to make the declaration. The evidence of Kartiani Datt apparently has been thought of subsequently and one more link has been added to the chain to create suspicion against the conduct of Shri Nigam, the Returning Officer. Stating about his introduction to Shri Nigam, the witness stated that Shri Nigam was a fast friend of Shri K- K. Nayar, who introduced him about July, 1961 to Shri Nigam and he had gone to Shri Nigam to recommend a gun licence for a postmaster- No document has been produced to prove this fact of gun licence having been granted by Shri Nigam. This witness was asked in cross-examination whether he was a counting agent for Capt. Ramgarib and he denied all knowledge about it. He was then asked if he had signed the form and he stated that he did not remember it Not only that but when a counting agent actually starts the work he has again to sign the form in the presence of the Returning Officer or the Assistant Returning Officer. At this place also he was asked whether h& signed a second time this form and he again stated that he did not remember about it and he again reiterated that he was not a counting agent for Capt. Ramgarib- This paper has been produced and it shows that this witness was appointed the coupting agent for Capt. Ramgarib and that he had signed Ihe form both the times. This completely proves the falsity of this witness. The contention of the learned counsel for the respondent is that although there Is no- proof of the fact that the name of this witness as the" counting agent of Capt. Ramgarib has subsequently been cancelled by filling another form, yet it must be believed that he did not actually act as the counting agent. I find it very difficult to accept this argument. When the form was signed a second time It must have been when the witness actually went for the work of counting- In any case, this witness could not have forgotten that he was appointed the counting agent for Capt, Ramgarib and that he had signed the forfn to act as such. His denial of these facts clearly Indicates that he is not a reliable witness. He was- asked In cross-examination that his statement about Shri K- K. "Nayyar Introducing him to Shri Nigam is false and that it was also false that he recommended the grant of a gun licence to the Postmaster of Barkati. But he has reiterated his previous statement which not corroborated by any document or any other evidence which if the fact was true could be produced. He also states in cross, examination that when he went to the bungalow of Shri Nigam he did not sign his visitors'" register. He was asked a.s to why he did not protest to the Returning Officer when he did not come after promising to come and declare the result- He only said that it had become late in the night. He felt surprised but he went home> He states that he maintains a diary and he believes that all these matters must have been entered in his diary. But this diary has not been produced. This witness was subsequently recalled and the form of appointment as the counting agent which he had signed, was put to him and In Ext. P. 160 on the record. This time he admitted that he had signed the form. But he stated that he had signed the form six or sevon days before the counting and he also admitted that he signed the second declaration, In this form against his name figures 14, 15 and 16 are mentioned and it is clear that he was supposed to be the counting agent for watching tables Nos. H, 15 and 16. This allotment of tables would not have been possible if he had not actually acted- But this time again this witness- denied that he acted as a counting agent and stated that he did not know who had made those figures 14, 15 and 16, In his statement in examinatlon-in-chief he stated that ahout 9 p-m. his younger brother informed him that Shri Dandekar was winning. This statement also does not appear to be correct By 9 urn.- it was impossible for any body to ascertain that Shri Dandekar was winning. Even in the election petition itself (paragraph 28) it Is stated that on the 28th of February, 1962, the counting of Gonda West Assembly segment finished at B p.m. By that time It was known tnat in this segment "alone the respondent had obtained a further lead of 4,167 votes over and above the lead of 4,459 "votes and about the same time as a result of the counting of Mahadeva segment the respondent had obtained another lead of about three thousand votes, In paragraph HO it is clearly stated that about 9 p.m. the extent of lead of the petitioner in Mankapur Assembly .segment was not found sufficient to overtake the latters aggregate lead in other four assembly segments and In paragraph 32 it is stated that It was about 10 p.m. that it appeared that the tables would be turned. Thus at 9 p.m-

when this witness states that he was informed by his Profiler at his residence in the city of Gonda that the petitioner Shri Dandekar was winning, it is obvious that he was not teliing the truth and if this fact is not true, then there was no chance of his having come to the Shamiana where the courifing of Mankapur assembly segment was going on. The fact of the matter appears to be that after finishing the counting of his own segment where he was acting as a counting agent, he went away straight to the city of Gonda and must have rested there rather than come to the Shamiana where also there was no chance upto that time of Shri Dandekar succeeding.

After considering the whole evidence on this point. I see no reason to hold that the order passed by the Helurning Officer at 12.25 A.M. postponing the decla- ration of the result was not a bona fide order dictated by the exigencies of the situation and there is no truth in the suggestion either that the counting of Mankapur assembly segment had come to an end before that order was passed at 12 midnight or that he had come to the Sliamiana at about 9 p.m. or he had any interview with respondent No, 1 at about 12 midnight when Shri Kartiani Datt alleges that he had been respondent No. 1 coming out of the bungalow of Shri C. M. Nigam, the Returning Officer.

Before proceeding further it will be convenient to dispose of the objections "nd insinuaiions regarding the application (Ext. P. 19) made by Shri R. N. Misra on the 28th of February, H'62, at 12 midnight and the effect of its rejection on subsequent orders by the Returning Officer. This application stated, among other things, but now the ballot papers are out, numbers noted by agents and there can be no difficulty if they are re-checked to assure fairness. You may be good enough to postpone further counting process for tomorrow and give us an oppor- tunity to examine and check the ballot papers through the official agency to meet the ends of justice. In the first place, it was contended that this application having been made at 12 midnight indicated that the counting had come to an end at that time. I do not see any force in this contention. It expressly states "further counting process be postponed" indicating that counting process was still going on. What it stated was that the ballot papers were out. This only meant that the last round of counting had started and all the ballot papers had been taken out of the ballot boxes. It was next contended that the object of this application was to get the counting postponed and when this application was rejected by the A.R.O. the same purpose waa achieved indirectly by the order of the Returning Officer postponing the declaration of the result till 11 a.m. on the 1st of March, 1962. This contention also has no force. The main purpose of this application was to recheck all the ballot papers that had already been counted and till that rechecking was done to postpone further counting of the remaining "ballot papers. This application was neither an application for a recount, as con- templated by rule 63, nor was it an. application merely for postponing further •counting. The order of the Returning Officer postponing the declaration of the •result did not require the postponement of the counting nor did it direct any recheck of the ballot papers already counted. It was therefore wrong to suggest that because of some collusion between the Returning Officer and Shri Ram Tlatan Gupta the very same purpose for which this application (Ext. P. 19) was given was achieved by the order postponing the declaration of the result, Such a procedure as was prayed for in this application, is contemplated by the instruc- tions to the Returning Officer under paragraph 17 of Chapter VIII relating to counting of votes. Sub-paragraph (2) of this paragraph directs "If ballot papers are counted at more than one placo according to rule 65 the demand for recount of the votes can be made only at the end of the counting at the last place fixed for the purpose. This would bo very inconvenient as the ballot boxes and all relevant papers mav have to be sent physically to the last place of counting and in that way it will defeat the entire effort and the whole purpose of spreading out the courting at different places. Though generally It is intended that a recount of the ballot papers of a particular polling station could be done only •after the counting for the entire constituency is over, if any doubt was expressed by any candidate immediately after the counting of votes at one polling station is over, it is desirable that you check up again. This is strictly not a recount but a check which will satisfy all candidates, By this application Shri R. N. Misra merely requested for a recheck of the ballot papers that had been counted till then. But this was refused and it is wholly irrelevant for coming to any con- clusion that the passing of the order by the Returning Officer postponing the declaration of the result had any thing to do with the refusal of the application by •the Assistant Returning Officer.

When subsequently on the 1st March, 1962, the Returning Officer had completed the counting of the ballot papers and had made up all the necessary charts, an

application for a regular recount under rule 63 was made to the Returning Officer. This application was granted and it is again contended that by the grant of this application Shri Ram Ratan Gupta achieved what he failed to get from the Assistant Returning Officer by the application (Ext. R. 19) mentioned above. As stated above, the ooject of that application was entirely different from the object and purpose of the application for a recount made before the Returning Oflieer. Obviously this second application was necessitated because of the dismissal of his previous application but that does not mean that the Returning Officer always wanted that Shri Ram Ratan Gupta's request for a recheck should be granted and he first asked him to attempt to get it before the Assisanl Returning Officer and when he failed to get it there, he granted this subsequent applicaion. This sort of argument and insinuation is based merely on imagination and has no factual basis behind it, I am unable to draw any such inference.

The application for recount is Ext. P. 3. It was made before the Returning Officer on the 1st oi March, 1962, but it is dated 28th of February," 1962. It appears that this application was wrongly dated in a hurry. Such mistakes of putting the last date are not uncommon and no inference of collusion can be made out from this back dating.

In the first paragraph, this application alleged that thousands of ballot papers had been mechanically packed up as votes for the other candidates and several had been pecked up for being reckoned as invalid and rejected votes which should have been counted for 'me' the undersigned candidate. The complaint in this was that a large number of votes were counted for other candidates which should not have been so counted and again a large number of votes had been rejected which should not have been rejected but should have been counted for him. In the second paragraph, it is alleged that thousands of votes had been rejected as bearing multiple marks but the Returning Officer should have ascertained the intention of the voters and should have treated them as of a parti- cular candidate. In paragraph 3, it is alleged that a large number of votes had been marked on the back instead of being marked on the lace side which had been rejected but which should not have been rejected if the mark existed against the cage of a particular candidate. In the next paragraph it was alleged that thousands oi votes had been treated as rejected on the ground that they were not marked wh-n in fact, marks were present on them. In the next paragraph, a complaint had been made that a large number,of votes had been rejected because marks had been placed on vacant space which was not right. On these grounds recounting of all the ballot papers m the whole Parliamentary Constituency was prayed for. It was stated particularly that the recount be done in respect of the areas covered by the Assembly Constituencies of Gonda North und Mankapur. This application was granted by the Returning Officer by his order dated the 1st of March, 1962 (Ext. P-4). On this date he has granted two applications for recount, one relating to 33 Balrampur Parliamentary Constituencv and the other relating to 34 Gonda Parliamentary Constituency. In the Balrampur Constituency the Congress candidate liad received the largest number of votes and the application for the recount had been made by an independent candidate. In the Gonda Constituency, however, the largest number of votes had been obtained at the first count by the Swatantra party candidate Shri N. Dandekar and the application for the recount was made bv Snri Ram Ratan Gupta, 1he Congress candidate. Both the applications were granted by the Returning Officer as he thought it fair and nroper In circumstances mentioned hi the applications. It was argued before him on behalf of Shri N. Dandekar that the Returning Officer had no jurisdiction to grant the application as a similar application for a recount had already been rejected by the Assistant Returning Officer. This reauest was repelled as rule 63 gave discretion to the Returning Officer and he had full jurisdiction either to grant or to refuse the application. This order of the Returning Officer has again been criticised as a collusive order, I am unable to see any element which would lead to that result. Since the two applications, one against the Congress candidate and the other in favour of the Congress candidate were granted there can be no charge that he was partial to the Congress candidate, as is the suggestion through- out this petition. It was then contended that this order is invalid as it did not disclose any reason. There seems to be no force in this contention also. Rule r>3(3) provides as follows, "On such an application being made the Returning Officer shall decide the matter and allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable.¹' The rule, therefore, contemplates that the Returning Officer had the discretion to allow the application if he thought it proper. He is not directed to Rive any reason for that order. On the other hand, he is permitted to reject such an application only if he comes to the conclusion that the application was frivolous or unreason- able, This would indicate that if the Returning Officer rejects an application he has to give reasons for holding that the application is either frivolous or

unreasonable but for granting an application, he has merely to look to the circum- stances and If he thinks that it should be granted he may grant it. The reason behind the rule also appears to be clear. If a recount is granted Immediately and every candidate has another chance of scrutinising all the ballot papers and satisfy himself that there has been no mistake, the chances of future litigation would be very much reduced ana it is better that the candidate should get them- selves satisfied about the counting and the result immediately, rather than have the matter postponed for a long time and contest an election petition which may take years to get decided. I am, therefore, unable to see any mistake in the order much less anything which would lead to an inference that this order had been made not bona fide but with a view merely to help one candidate.

In this connection the attitude of the parties may also be worth nothing.

So far as Shri Ram" Ratan Gupta was concerned, in the two applications made to the Assistant Returning Officer and in the application made to the Returning Officer for a recheck or recount of the ballot papers, it was never suggested that the recheck or recount should be postponed for some days. The dominant idea- always was to have a recheck which may start immediately. This would com- pletely nullify any suggestion that an attempt was being made on behalf of Shri Ram Ratan Gupta to obtain time so that the ballot papers may be tampered with. On the other hand, on behalf of Shri N. Dandekar whenever an application "for a recheck or recount was made it was stoutly opposed. Not only was the opposi- tion to a recheck or recount but it was also said that even if the recount was ordered it should be only a mechanical recount and there should be no rechecking of the ballot papers. This insistence upon avoiding a recheck of the ballot papers has given rise to the legitimate argument on behalf of Shri Ram Rattan Gupta that Shri Dandekar feared a recheck because he knew that the ballot papers had been wrongly counted in his favour during the first count and upon a recheck they would be discovered. For the winning candidate it is understandable to oppose a recount merely because it would delay the announcement of the result at least for a few days but it is not easy to see why he should oppose a recheck In case of recount. If he had bona flde believed that the first count had been honestly done, he should not have feared a recheck at all. By his letter (Ex. P-l) dated the 1st of March, 1962, Shri Bhadkamnkar wrote to the Returning Officer with reference to the order of the recount that Shri Dandekar had taken an assurance from the Returning Officer that the recount of the Gonda Constituency would not commence before Sunday, the 4th of March, 1982 and that in the opinion of the Returning Officer the recount was to cover all the five segments of the Parliamentary Constituency and that he was also assured by the Returning Officer that before the recount started the ballot papers would be kept in the safe custody under a double lock in the treasury strong room. Thus it appears that immediately after the recount order was passed, an assurance had been obtained from the Returning Officer that the recount in tljat Parliamentary Constituency would not start before the 4th of March, 1962. On the 2nd of March", 1962, Shri N. Dandekar sent a letter to the Chief Election Commissioner in which he related the developments at Gonda and in paragraph 8 of that letter, he requested the Chief Election Commissioner to enquire into the whole affair and to appoint a responsible officer for making the enquiry. He asltod that the recount should be stayed meanwhile. He also requested that in the meanwhile the ballot papers be kept in the treasury strong room and a special guard be provided and wanted the recount order passed by the Returning Officer to be set aside, and that if nccesasry to hold the recount in Mankapur Assembly segment only. But if in the opinion of the Chief Election Commissioner, a recount was ordered then it be confined only to arithmetical recount and should not be extended to a scrutiny or reallocation of the ballot papers whether valid or invalid, These two prayers in this application, one for the postponement of the recount and Ihe other for not including a recheck and reallocation but to confine the recount to a mechanical recount have given rise to the contention on behalf of Shri Ram Ratan Gupta as- mentioned above. However I do not see any sufficient reason to find mctives behind such application and prayers. When the winning candidate finds that by process of the recount there is a possibility of a change he is natura'ly inclined to make all efforts to prevent the possibility of any change and no sinister motive or knowledge that the first counting had been unfair can be inferred from this ap- plication. The fact, however, remains that upon the representation of Shri N, Dandekar, the Chief Election Commissioner stopped the process of recounting and the recount could not start till the arrival of the Chief Election Commissioner at Gnnda when the recount was done under the direction of the Chief Election Com- missioner, who left the Deputy Chief Election Commissioner to remain present throughout the process of recount. It is not disputed that the Returning Officer on ii request on behalf of Shri N. Dandekar immediately directed that the ballot papers to be recounted of both the parliamentary constituencies be placed in the treasury

double lock and he also directed a special arm guard in the treasury lor the purpose. If there had been any intention oi me Ketu rung ulficcr 10 give an oppori.uiui.y LO a party to get the ballot papers out and tamper with them, he could nave very well avoided placing of the ballot papers in the treasury double lock or providing foi special arm guard at least for a day. But he did not do anything of that kind and immediately on request passed an order. Although tne order was carried into etftd alter a few hours at about 8 P.M. yet it is not even suggested that anybody tampe±td with the ballot papers during this period beiore they were placed in tne treasury strong room.

After the Returning Officer had passed an order for recount, an assurance was taken from him that the recount of this constituency would not start befoie tne 4th of March, 1962. He, therefore, fixed tne schedule of the recount by starting the re- counting first with 33 Baliampur Constituency from the very next day i.e. the 2nd oi Match, 1962. He directed tne recount omy during day time. After ltnishing witn Balrampur he was to start with Gonaa Constituency. A sinister motive is seen in this order also and it was argued on behalf of Shri N. Dandekar that by taking upon the recount of Balrampur Constituency first and confining it to day time aWne the Returning Officer had made a gift of several days to Shri Ram Ratan Gupta to enable him to arrange for the tampering of the Ballot papers. To my mind, it is hyper-Imagination. It was the request of Shri N. Dandekar himseLC not to tako up the counting Immediately and he had taken an assurance that the counting would not be started before the 4th of March, 1962. But when his own request was gi-anted, it is now argued that it was a gift, to the other side. Then recount was ordered only in day time obviously to ensure the correct counting so that there may bo a through check of each ballot paper. By counting the ballot papers day and night, as was done on the first occasion, the officers engaged in the counLing must h;ive been tired and naturally must have become careless In scrutiny and during the durkness of night also the work of sc utiny could not have been uone efficiently and in order to avoid this trouble this time if the Returning Officer directed that a re- count should be done only during day time there is no justification for imputing motives in this also, that it was done for the purpose of taking as long time as possible so that the other party could get an opportunity of squaring up with the officers and preparing a scheme for tampering with the ballot papers. 1 am unable to see any force in such an argument. The orders passed were appa ently bona fide and for the purpose of a correct recount. The postponement of the counting of Gonda Constituency was at the request of Shri N. Dandekar himself.

However, after the Returning Officer had passed an order for placing the ballot p.ipers of both Balrampur and Gonda Constituencies in the treasury double locit. the next phase of the argument starts. This relates to the safe custody ot the ballot y.ipers. Shri Bhadkamnkar has stated In paragraph 37 of his deposition as to how ho went round to the Assistant Returning Officers of each segments enquiring from them as to whether they had received orders of the Returning Officer for the sate custody of the ballot papers. He stated that he first met Shri A. S. Misra, the A.R.O. East and West Gonda segments at about 7 P.M. who told him that he had not received orders as yet. From there Shri Bhadkamnkar went to the District Election Office but no Information had been received there also till then, Shri S. R, Misra, however, went to the treasury to keep the bags containing the ballot papers of Mankapur stgment there. This was at about 7-20 P.M. He went to the residence of Shri R. P. Singh, A.R.O Gonda North and then to Shri D. S. Shukla AJt.O. Mahadeva seg- ment. He did not meet them. At about 8-15 p.m., he went to the treasury and found that Shri D. S. Shukla and Shri A. S. Misra had reaohed there and the bags con- taining the ballot papers of Mankapur segment had already been put in and the ballots boxes and bags containing the ballot papers of Gonda North segment were also being put in. Then Shri A. S. Misra asked him to accompany him to the place where the bags containing the ballot papers of Gonda East and Gonda West segments were stored. He accompanied him and reached the Collector ate Office where the ballot papers were kept. There were Assembly and Parliamentary bags all put there. He says that the bag3 were five in number out of which only two were Parliamentary bags, one for Gonda East and the other for Gonda West Seg- ments These two bags were brought from the room by Shri A. S. Misra and were kept in the room In the treasury which subsequently he came to know was the triple lock (armoury strong room). After that he accompanied Shri D. S. Shukla and from there two bags containing ballot papers of Mahadeva were brought by Shri D S Shukla and put in the armoury strong room. At that time he signed two chits stating that two bags of ballot papers relating to Gonda East and Gonda West segments and two bags of ballot papers relating to Mahadeva had been placed in the armoury strong room in his presence and he proved Ext. P-2 the memo relating to Gonda East and Gonda West. He also proved Ext. P-l which was the memo relating to Maharteva segment. He also states that he examined the seals on these bags and found them intact. It Is thus clear from his statement that the

bafis containing the Parliamentary ballot papers relating to Gonda East und Gonda West were brought in his presence and kept in the triple lock armoury strong room £ •£ H £f ^° o p t i on t h s£

t he T r e a su ry O f f i c er h ad d i r e c t ed t h em to b ts k e pt

to the double lock and they skould not have been kept in the triple lock. He also states that with the permission of the Treasury Officer he stationed four men of J⁰^²¹ tojvateh the treasury lock. It is now contended that the District Magistrate and the Returning Officer had directed the ballot papers to be placed in the treasury double lock but they were not placed in it and were deliberately placed in the triple lock armoury strong room by the Treasury Officer and in this a purpose i? seen by the learned counsel appearing on behalf of Shri N. Dandekar. The position has seen explained by the Treasury Officer who has appeared In the witness-uox. Ac- cording to the Treasury Officer, on the 1st of March, 1962 when these ballot papers were brought to be placed in the treasury he was very busy with his account which had not yet tallied. Moreover, there was going to be an audit in the treasury aud the audit party had come. This would constantly require opening of the double lock of the treasury and the placing of so many bags of ballot papers would not only hinder free movements inside the double lock but would also hinder his freely opening and entering in the double lock for the purpose of audit and com- parison of accounts. The triple lock armoury strong room was equally safe if not safer and according to him it was considered by him to be a part of the treasury double ^ock. The treasury double lock was locked by the Treasurer aa well as by the Treasury Officer and the key of one lock each was kept by them. So also the armoury triple lock strong room was also locked by the Treasury Officer, the Treasurer and also by the Nazir who was Incharge of arma which were kept there. Thus so far as the safety of these two room was concerned. There was no dii- ference and he therefore xn order to avoid inconvenience decided to place the ballot boxes in the triple lock which was not likely to be fiequently opened. It is, however, suggested that the matter was not so simple and there was a deep design In placing the ballot papers in the triple lock because if they had been kept in the treasury double look, it was the bounden duty of the Treasurer to enter the details in the register kept for the purpose of valuables kept in the double lock and by keeping these ballot papers in the triple lock the Treasury Officer avoided entering these in the treasury register. This matter was put to the Treasury Officer himself and he replied that this waa not so. The treasury register was meant, according to him, to enter valuable articles like jwellery and other things mentioned in the list and there was no mention there of ballot papers. If he had considered these ballot papers to be valuable articles, within the meaning of the Financial Hand book, he would have entered them in the register even though they were placed in the triple lock. The only explanation why he did not enter them in the register was that he did not consider these ballot papers to b" such as were required to be entered in that register. In that view of the matter, even if these ballot papers had been placed in the double lock they would not have been entered in the register by the Treasury Officer. Therefore, the insinuation that they were kept In the triple lock to avoid its entry in the register is not correct- Learned Counsel brought to our notice the provisions of the Financial Hand book and contended that alter the order of the Collector that they be placed m the double lock they should have been treated as valuable articles and its entry should have been made in the register of valuable articles. But it is not for us to interpret the rule. The question for consideration is whether the Treasury Officer could bona fide come to the conclusion that these were not the articles of the nature Which required their entry in the register of valuable articles. I am satisfied that the Treasury Officer could bona fide take that view.

The Treasury Officer has further contended that they could not be convenient- ly entered in that register because he understood at he time when they were they were kept in the treasury that they would be required for a recount bag by bag. But the procedure to be followed when the valuable articles were put in the treasury was that the whole lot of articles entered at one item was taken out together and It would make the entry in the valuables register very cumbersome if each bag and each box had to be separately entered and had to be separately re-entered when taken out and then again kept there. He, therefore, explains that because the articles were being kept on the first of March, 1962. when he waa very busy, he did not consider it necessary to start a register at once and enter these articles in it At that time he thought that he would flnd out the proper form which may be prescribed for keeping these articles and then to start a proper register when he would be slightly more free after finishing the work of the first few days of the month. He then states that when on the 5th of March, 1962 the Chief Election Commissioner actually came and the recount had to start that very day he did start a fresh register in which be entered all the bags that had been taken in on the 1st of March, 1962 and opened a separate account for bafls of each officer so that whenever that office removed any of his bags, it may be entered in hia account and when he took back the same it may be again

^ L³^ [ HE G A ⁷ E T Tt OF INDIA EXTRAORDINARY ^r

entered therein. This regjster was criticised on the ground that the exact proce- dure which was followed in the valuables register was not followed i£ this register inasmuch as each bag pf bags which was kept there was not given a separate serial number with the result that whenever one bag was taken out Jt was not entered In the register that the bag bearing serial number such and such was taken out and wnenever that bag was brought in again a separate serial number was not given to It. By not following this method and putting aeparate serial numbers it was possible for the officers to take out one bag and to bring in another bag and there would be no check in the register to indicate that the same bag had come back which had been taken away previously and in this way it was possible for the officers to take away the bags of parliamentary constituencies on the pretext that they were taking away bags of assembly constituencies and then to bring back the parliamentary constituencies bags after having tampered with the ballot papers under the guise of bringing in Assembly Constituency bags •• of another constituency. How the bags were taken out and brought in iorm time to time will be considered a little later but suffice it to say at present that this contention per-supposes that all the officers concerned had combined together to permit the assembly constituency bags to be taken out by the officers themseiveB and to bring them back after tampering with the ballot papers. If such a cons- piracy had already taken place and the Treasury Officer Treasurer, Nazir and the Assistant Returning Officers who were incharge of the bags and the Returning officer was himself incharge of the whole treasury were in that conspiracy and were acting for that purpose, it would not be of any use even if a register had been started giving a serial number to each bag, for even then the bag of the Parliamentary Constituency could have been taken out and an entry made In the register that the particular serial number of the Assembly bag had been taken out and when the parliamentary bag after making the interpolations had been brought in an entry could have been made that the Assembly bag of another constituency was brought In and a fresh number given to it. I am, therefore, unable to see any substance in the argument that keeping of the ballot papers hi the treasury triple lock was motivated to facilitate the tampering of the ballot papers. What is being suggested is that the ballot papers relating to the Gonda East and Gonda West constituencies had been removed from the treasury triple lock on the 8th of March, 1862 and were brought back after they had been tamper- ed with on the 9th of March, 1962, I well, thertfore, now take up the question as to whether the movement of the ballot paper bags in and out of the treasury triple lock was, in any way, doubtful and any suspicion can be cast on the bona fides of such movement of bags. In order to appreciate the movement of bags, it is necessary to see first the slips under which the ballot papers were kept in the treasury triple lock by the different officers. Ext. P-H8-E is a note addressed by Shri R. P. Singh to the Treasury Officer and states that as there was going to be a recount of the Parliamentary constituency, the ballot papers of Gonda North may be kept in the treasury lick-up for safe custody. With this note he kept lfl sealed boxes and 5 bags containing ballot papers. The next is the slip of Shri S. P. Misra (Ext. P-118-E). He kept three bags relating to Mankapur assembly segment and two bags of Balrampur Constituency, Ext.-P-118-B is a note by Shri R. B. Jauhari. It is a very short note merely stating "deposited 13 bags in D.L." He does not give the details as to what these 13 bags contained. The original of tWs document was placed before us for consideration and it was contended that originally it had been only '3' and '3' had subsequently been converted into •13'. We have carefully seen this document even with the help of magnifying glaas and I am clearly of the opinion that there is no substance in the suggestion S at the original figures '3' was alone written and subsequently figure (1) was added before It In this document, at first a note was made by the Treasury Officer, as subsequently admits, that it was in his own hand writing, merely stating Shri R B. Jauhari 13 bags" in this also figure '13' is quite clear and the formation ot the letters" etc. is so similar that there is no doubt about the figure '13' having been written at the same time. It appears that the Treasury Officer did not consider It necessary at that time to get the signatures of Shri R. B. Jauhari. But later another endorsement was made stating "deposited 13 bags in D.L." and this time it was signed by Shri R. B. Jauhari himself. Thus figure '13' has not been written only once but twice and at both the places the figure is not at all doubtful. The case of Shri Ram Ratan Gupta is that out of these 13 bags, sbc related to the Parliamentary constituency and seven to the Assembly constituency since bhrl Jauhari did not receive the order of the Returning Officer for placing of the ballot papers in the strong room, he did not exactly know what was to be kept fa the treasury strong room. He therefore, brought all the 13 bags which he had in hie possession and kept them in the treasury. Even the Treasury Officer at that time had not received the order itself and he, therefore, permitted all the 13 bags to te kept there. The Treasury Officer has stated that all the 13 bags were kept and it was later on that he came to know that out of these bags seven bags related to thf assembly constituency- Thb he came to know when at the time of the re- countfall t h e ^ r U a m e n t a r / b a gs had been taken for that purpose but the seven

bags remained inside the triple lock armoury strong room. He then asked why they had not been taken for a recount and he was informed that they were assembly bags. They were thereafter removed from the treasury triple iock eymoury strong room as it was not necessary to keep them there. Whether this figure was only '3' can be very easily checked from the time taken in counting that was done relating to these segments. When the recount started in the presence of the Chief Election Commissioner'three parliamentary bags were taken out on the 5th of March, 1962- They were counted but were not completely finished on the 5th of March, 1962. At the end of the day therefore two full bags and one small bag containing the few uncounted ballot papers were brought back in the treasury room on the 5th of March, 1962, On the 6th of March, 1962, again live bags were taken out including the small bag with the result that three bags which had been taken out on the 5th of March, iat)2 were again taken out and two more fresh bags were taken out for counting. Three bags were then returned back on the 6th of March, 1962 to the treasury and one remaining bag was taken out again so that the recounting of the parlia- mentary constituency went on on the 5th as well as on the 6th March, 1962. Two bags and a littJe more were coiMited on the first day and three bags and a title more were counted on the second day. If the total number of bags had been only three, there was no possibility for the recount going on for two days •and the ctntention of the learned counsel for Shri N. Dandekar thpt there were unly three bags for this parliamentary constituency is based on mere surmise ana a desire to find fault where there is no lota of evidence in support of it- It was then contended that from the account of Shri R. B. Jauharl kept in the register (Ext. P-211), it appears that three bags were taken out on the first day and six bags taken out on the second day. This would make the total number of parliamentary bags as eight and it wil¹ reduce the number of assembly bags to only five. This argument does not take into consideration that on the first day three bags were taken out and they had not been completely counted with the result that all tht three bags had to be taken out again on the second day and alter completing the counting of those three bags they Were packed up in two bags only. Thus two bags were taken out twice and the number of oag3 remained '*' and not '8' as suggested. Since Shri R. B. Jauhari had not been called to the witness box by any paity he did not get an opportunity to explain this which he has done in his writ petition and I am fully satisfied that there is no mistake in the account and trie account fully proves that there was six bags of parliamentary constituency which had been counted on the 5th and 6th of March, 1962 If six bags related to the parliamentary constituency the other seven bags must have related to the Assembly Constituency, as stated by the Treasury Officer and these seven bags of the assembly constituency were remov- ed on the 6th of March, 1962 when it was discovered that they were assembly bags and need not be kept In the triple lock armoury strong room. After re- moving all these assembly bags, only five parliamentary constituency bags re- mained in the account which were removed on the 8th. To come to the movement of bags, it has been seen that the Chief Election Commissioner had arrived and the recount actually started from the 5th of March, 1962. Three baffs were, there- fore, handed over Immediately for the recount. The Treasury Officer has ex- plained that he did not want to hand over the bags till he had started a proper register In which the entries were made. But there was a hurry as everybody was waiting to start a recount arc! therefore Shri R. B. Jauhari took away three sealed baga of Sadhullahpur Assembly sector segment of Balrampur Parliamentary Constituency which were to be counted first. Since no register had been prepared till then he made a note of it (Ex. P-118A) on the very slip on which the deposit had been noted on the 5th of March. This is the very first issue of three bags mentioned above from the account of Shri R, B. Jauhari entered in Ext. R. 211 which was prepared Immediately after the issue of these bags. In this register, it is clearly mentioned that the entries relating to the 1st of March, 1962 were being made from the slips and subsequent entries were made and signed by the officers concerned who either deposited or took away the bags. Its genuineness was doubted. On this score, that register was prepared after wards and not on the 1st of March, 1982. That register cannot be called 'ante-dated register.' It expressly states that it was prepared on the 5th of March, 1962 but the account could not be made clearly unless the deposits which had taken place on the 1st of March. 1962 were made and explained. All the movements of bags are entered in the Register, (Ext. R-211) and there was no attempt to conceal any movement. What I have now to consider Is whether the reasons given out for the movement of bass i.e. why they were taken out and fresh bags brought in after tht 5th of March, 1982, when the recount started, was justified or, as has been alleged on behalf ol Shn ft. Vftndekar. there was no eenuine necessity for thli movement anri an occasion was created for the unnecessary movement to facilitate tampering of the

ballot papers. Admittedly, after the ballot papers had been locked in the triple armoury strong room, the strong room was not opened till the 5th of March 1962 when the recount started and the special guard appointed by Shri Bhadkamnkar also kept a watch over the locks of the room and admittedly they were not dis- turbed. The question to be considered only is what happened after the 5th of March, 1962. On the 6th March, 1962 when it was discovered that Shri R B Jauhari had wrongly kept the boxes containing the assembly ballot papers and seven bags containing those papers were removed from the triple lock, no objection had been raised with regard to this removal bat the contention on behalf of Shri N. Dandekar is that this is a faked entry. His case is that in fact, Shri R. B. Jauhari had brought In only three parliamentary bags which were converted into 13 and subsequently as five bags had been taken out on the 8th of March, 1962 three relating to the Balrampur constituency which were originally brought in and two relating to Gonda east and Gonda West and In order to adjust this taking out of five bags on the 8th of March. 1962 when only three bags had been brought in, the figure '3' was changed Into '13' and it was wrongly shown that seven assmbly bags were also kept there. The case, therefore, Is that no bags were, infact, taken out on the 6th of March, 1962 and therefore there was no question of the bags of Gonda east and Gonda west parliamentary segments of Gonda constituency being taken out on the 6th of March, 1962. As already noted above, this theory of only three bags having been brought in cannot be sustained. Moreover, no attempt has been made to show that the parliamentary ballot papers of this Balrampur consti- tuency were contained only in three bags. These ballot papers must have existed at least upto the time when the tribunal was hearing the election petition and if an enquiry had been made, the fact would have been discovered and conclusively proved that there were only three hags of that parliamentary constituency. The existence of seven bags of the assembly constituency would also have been proved. With regard to the entry in Ext. R-211. the register maintained for keeping these ballot papers in the triple lock, a criticism has been levelled regarding the triple lock by Shri R, B. Jauhary against the taking out to the seven assembly bags which said, "Deposited in judicial record room". The argument is that the entry must have been made when the seven bags were taken out on the 6th uf March, 1962 from the triple lock and the entry that could be made at that time was that the bags had been taken out or would be deposited in the judicial record room. The entry stating "deposited in the judicial record room" indicates that the entry was made after they had been deposited. It is, therefore, contended that this note itself indicates that thev were already there and the note is a faked one. I am unable to accept such a theoritical argument which is not based upon any fact leading to that inference. Shri R. B. Jauhari was not called to explain this entry and no adverse inference was to be drawn from it. It may have been that Shri R. B. Jauhari sent these bags to be deposited in the judicial record room and after the man came back with the Information that the same had been deposited, he made an entry in the register. I am unable to agree with the contention that this entry of the removal of seven assembly bags on the 6th of March, 1962 is a faked entry and no bags were removed on that date.

The next point regarding the removal of bags is with regard to shifting of the bags from the triple lock to the double lock up. The sadar nazir, who was in- charge of the arms, Shri Kalicharan Jauhari, has stated that on the 6th of March, 1962, he was informed that the Commissioner was about to visit the district. The office superintendent of the Collectorate had told him that the programme of the Commissioner's visit had come and he should prepare for the inspection of the Commissioner. He then realised that the arms which were kept in the triple lock armoury strong room had not been cleaned and verified for more than a year and since the commissioner was likely to Inspect the arms also, the work of cleaning and verification of the arms had to be done immediately. The programme of the Commissioner Is on the record and Indicates that he was to visit Gonda on the 23rd of and 24th of March, 1962, From the endorsement of the Collectorate afflce on this paper it Is clear that it was received on tht 6th of March, 1962. This pro- gramme is Ext. R-210. The Nazir has stated that he expected to take seven or eight days in cleaning the arms and there are four days for verification of the Firms which was to be done by Shri R. B, Jauhari, who was ofneer-in-charge of the arms From notification in the Government gazette it has been shown to us that Shri R. B. Jauhari was goinsr on leave from the 19th of March. 1962. Thus the work of the cleaning and verification of arms was to finish by the 19th of March, 1962. The programme of the Commissioner's visit having been received fin the 7th of March, 1962, it wac naturally urgent for the nazir to see that he was able to start the work of cleaning the arms at once. As long as the ballot papers were locked in the triple lock-up he could not remain inside the room with his assistants for the whole day and carry on the work of cleaning the arms He, therefore on the 7th of March 1962 wrote a slip (Ext. R-6) and took it to the ofneer-in-charge Arms Shri R. B. Jauhari stating that in connection with the visit of the Commissioner, it was necessary to remove the ballot papers, as he

could not do the work and it was very important that the arms be cleaned forthwith. The nazir states that when he took this note to the offlcer-ln-charge of the Arms be kept it with him and told him that he would talk over the matter with the District Magistrate and will then pass suitable orders. From Ext. R-6 it appears that on the same day Shri R. B. JaUhari made a note addressed to the District Magistrate saving that the bees of ballot papers of fh> Constituencies which were to be recounted may be shifted to the double lock of the treasury and others to the tahsil record room. This was approved of by the D.M. on the 7th of March 1962. The offlcer-in- charffe of arms then made a final order to the nazir as follows: "Inform the tashildar to take the bags of recounted constituencies to tahsil and Inform T.O. (treasury officer) to transfer the rest of the double lock " The last entry on this naper is an endorsement by the nazir "complied with in the presence of D. M. and D R O" and after that to a note bv Shri K M. Saran treasure officer statin* that the bajrs were kept in tho double lock and 15 bans were handed over to the officers as follows "5 bags to Shri R B. Jauhari 8 bags to Shri Devanand Gaur and 2 bars to Shri S R Misra." These removals are also corroborated by the entries In the register (Ext.R-211) showing the account of bags of each oftVer. The witness further states that Shri R. B Jaubnri sent for; him on the morning of the 8th of March 1062 and informed him fhot the District Magistrate had approved of this Procedure and asked Mm to inform the tahslldar to reach the treasury at about MO or 2 pm and take awav the baps which had already been counted He "4ed him elTo to inform the Treasury Officer to be there so that the removal may Te done Atabout 2 T m. everybodv collected at the treasury and 15 bags.were

a v s . &M^hJ s : " ^ s ^ ™ ;" *L ** **>" R. B. J*** on "*

16th. 17th and 19th of March, 1962.

argument. The second objection of the learned counsel with regard to this note Is that the note was addressed by the nazir direct to the District Magistrate while according to the official propriety it should have been addressed to the District Magistrate but through the Arms Officer who was his immediate boss. The con- tention Is that this was not a normal note started in connection with the official business but was just a scrap of paper prepared hurriedly for the purpose of the case. I am unable to see any suhstaneo In this argument also- The note is a mere demi-official one. It Is not like an application and since the District Magistrate was the inchajge of the treasury and the armour strong room, It was essential to obta{n|^U^t'Mpaent. The note was. therefore, rightly addressed to him and accardlnB.tp^bd \ dal proorlety it was first taken to the offlcer-in- charge of arms arnj JJls (.opfcoiJed it with his own note to the District Magistrate. I see no im propriety "In the way the orders proceeded- Next it was contended that 8th of March, 1962 was a holiday on account of It and it is very strange that all the:;e persons collected together to work on a holiday like the 8th of March, 1962 but they did not continue the wmrk on the 11th and 18th of March, 1962 which were Sundays. If they were in such a hurry as they represented to be In the nazir should have continued thp work of cleaning on the 11th of March, 1962 also and the verification should have been continued on the 18th of March, U)fi⁹ also which were as good holidays on account of Sunday as was the 18th of March, 1962- The argument Is that because the recount of the Gonda constituency was to start* on the 9th of March, 1962 it was essential to remove some bags of that constituency on the 8th of March, 1962 so that they could be brought In again on the 9th of March, 1962 before the recount started and on that account alor.° this shifting of the ban-g from the triple lock to the double lock WHS undertaken on a holiday- This again, I see nothing but a fiction of imagination. Upto the 7th of March, 1962 recount of Balrampur con- stituency had finished. It was on the 7th of March. 1962 that this note brought to nrominence the urgency of shifting the bt"s and vacating the nrrnoury strong room. It was therefore, natural for the restrict Magistrate who war the Return- ing Officer and actually doine the wor'r of recount alone with th° Deputy Chief Election Commissioner to try and finish the work of shifting th= baes and sorting out the necessary and unnecessary ores on a holiday, which was the only leisure time to do the work. If It Was decided to do this on the afternoon of the flth of March, 1962, there is no reason to suspect tho motions. It WHS but natural that this time should be chosen for this nurpose. As the work was Important from the point of view of the safety of the ballot papers, th^ District Magistrate mid Shri R B- Jauharl came to thp trPasury and (jot the work done In their presence- Instead of the nr"sf"ice of the District Magistrate and Shri Jauhari being con- sidered as an act. of e x t ri tirecauHnri and extra safotv ft Is armiM on behalf of Shri N- Dandekar that thev hnd no business to come there and that thev came only for the purpose of ensurlnc that nohodv created an obstruction in the re- moval of the bags which were renuired for being tampered with. This conten- tion again has merely to be started to be reiected. It may also be noted in this connection that bv thp- Rth r>f March, 1962, the first week's rush nf urcent work In the treasury was ov

Another matter ha¹; to h° considered In connection with the shifting of the ballot papers. One Pratap Nnrain Tiwarl had made an application on the 7th of March, 1962 that the ballot papers nf his assembly constituency (Balrarrmur South) were lylnrr in the tahsil and as he was Roing to file- an election petition, he wished that these ballot papers be koot In aafp custody On the said date, the District Mn?Istrnte had passed an order that these ballot naoers which con- sisted of eitrht baes should be keot in the treasury- The tahslldar brought these eight bacs for beinff keot In thp treasurv on the 9th of March, 1962 at about 9 AM., before thp recounting of Gonda Parliamentary constituency started and they weie placed In 1he double lock. Learned counsel for Shri N. D. Dandekar has strenuously contended that this whole affair and the apollcation by Shri Pratap Narain Tiwarl and the orders thereon were all manipulated In order to rive an opportunity to h'-ln? in some baTs of ba^ot papers on the 9th of March. 19R? and he contends that It has not been explained how these eight bads of ballot pacers which should have been In the Balrampur tohsil had come to Gonda tahsll so that thev were to be kent In the treasury therf\ This was a question raised bv the learned counsel only in th" arguments. No attempt was made In the evidence to find rvit the cause of their beinit brought to the Gonda tahsll. A reasonable explanation would have been available If an attempt had

taeen made to find It out but without trying to bring the relevant facts on the record, the argument is wholly misplaced and unjustifiable. No suspicion can be raised against this conduct of the persons concerned which would involve the officers of Balrampur Constituency also, who should, according to the learned counsel have been Incharge of these ballot papers as to why they handed them over to the tahsildar at Gonda unless facts were elicited which would indicate that the conduct was not normal- It was then contended that why the appli- cation was made on the 7th of March, 1962 which according to him was "a fateful day-" A c^ear answer to this question has^ btfftb Jiw"n by the learned counsel for the other side by putting another quest* ll^tbjgiray,' this application could not. be made on the 3rd or the 4th of Marchl_;s of the assembly constituency but contained at least two bags of Gcnds parliamentary constituency which were removed on the 8th for being tampered with, then only six bags should have remained in the treasury after the re- count, Moreover, the fact that these eiffht bags belonged to the assembly con- stituency concerned, could have, in fact, been ascertained at the' time when the tribunal was hearing the cast. No attempt was made to prove that these assembly ballot papers were contained In anything less than the eight bags. I, therefore, see absolutely no substance in this contention on behalf of the learned counsel. Next it was contended that the keeping of these eight bags in the treasury was not at all an important factor and It was not necessary for the District Magistrate anrfc the sub-divisional Magistrate Gonda to come¹ to the treasury for keeping these bates inside the double lock of the treasury. It ap- Dears from the statement of Shri Kslicharan .T*>iiharl, Sadar Nazlr that the District Magistrate, Shri A. S, Mlsra and the S.D.M. Gonda all came to the treasury at the time when the ballot papers of Shri Pratap Narain Tlwari were keot In the treasury between 9 am. to 10 a.m. and from this statement a very strenuous argument has been advanced that the District Magistrate and the other two officers mentioned above themselves brought the ballot papers and the only purpose of doin" so. must have been to ensure that they somehow got in the treasury before the counting started at 10 a.m. I see no reason to attach any Imnortance to such an argument The witness does not say that all these officers came In the same ,1eep car In which the ballot papers were brought All that he has stared is that at the t'me these officers also came- The recount of the Gonda constituency was to start at 10 a.m. that day and In order to see that arrangements were proner. It Is not surnris SEC. S(ii)] THE GAZETTE OF INDIA EXTRAORDINARY 4 3!

attached to this fact and I am unable to find any cause whatcTjer to hold that the movement of the bags in and out of the t easury triple lock or of the treasury double lock was at all doubtful and was not motivated by exigencies of the occasion and that the officers, who acted in this connection, did not act absolutely honestly and above board-

Lastly It was contended by the learned counsel that in any case Shri Bhadkankar had made an application on the 4tb of March, 1962, that any shifting of the ballot papers, which was necessary should be done in his presence but he was not informed of these movements, only to conceal the activities of the officers- This argument also has no force. The application (Ext. P. 2b) merely stated that If any shifting was necessary on the 4th of March, 1962, he would be available on the telephone noted therein and he should be informed of it- Since no shifting was found necessary on the 4th of March, 1962 the application ex- hausted itself and when suddenly on account of the Commissioner's visit it be- came essential to shift the ballot papers from the triple lock to the double lock, nobody may have remembered about this application which was not relevant for those subsequent days.

I am, therefore, unable to see any reason to doubt that the ballot papers were in absolutely safe custody from the time of the first count to the time when they were recounted and there was no opportunity for anybody to meddle with the ballot papers.

Having dealt with the safe custody of the ballot papers after the first count till the recount I now proceed to consider the facts as they occurred after the returning officer had passed an order postponing the declaration of the result to the 1st of March, 1962. at 11 a.m. instead of 28th of February, 1962 at 10 p.m. It has been already stated that after the postal ballot papers had been counted and the totals have been prepared an application for the recount was made on behalf of Shri Ram Ratan Gupta in respect of the Gonda parliamentary con- stituency and another application had been made by other candidate in respect of the Balrampur parliamentary constituency and the returning officer had passed orders for a recount. The same day he had also passed orders so far placing the ballot papers in the treasury double lock and the ballot p'apers had been so deposited in the armoury strong room by 8.SO p.m. On the 2nd of March. 1962, Shri N. Dandekar addressed a letter to the Chief Election Commission (Ext. P 23). In this letter he recounted a number of grievances and asked that recount- ing should be stopped and In any case the recount should not include a re scrutiny of the ballot papers. As a result of the representation, made by Shri N. Dandekar, the Chief Election Commissioner directed by a telegram the stoppage of furthe*- work of recounting. The telepram which was received at Gonda is Ext- R. 145 and reads as follows, "E. 3523/CEO, Chief Election Commissioner India accompanied by the Deputy Chief Electoral Officer reaching Gonda at ten hours on Monday morning March 75th Chief Election Commissioner will hear the candidates and their election agents in the matter of recounting of votes in Gonda and Balrampur Constituencies at 11.30 time. All proceedings may bo held up''- In pursuance of this ordeT"- no action was taken by the returning officer regarding recounting of the ballot papers. The Chief Election Commis- sioner reacha i Gonda on the 5th of March, 1Q62 and he heard all the parties concerned, on the question whether a recount should be ordered. He passed an order the same day confirming the order of the returning officer that a recount should be held and that it should Include a rescrutiny of all the ballot papers- This order is Ext. R. 144. Thereafter, lots were drawn in order to decide whe- ther the recounting should start first of 33 Balrampur constituency or of 34 Gonda parliamentary constituency and it so hapoened that 33 Balrampur con- stituency was to be recounted first and the recount of Balrampur constituency thereupon began in the nresence of the Chief Election Commissioner in the after- noon of the 5th of March, 1962.

The recount having been started in these circumstances, It is worth noting that the attitude of the officers concerned with the counting of the ballot papers or of che safe custody of the same does not appear to be that of persons who had determined to get the ballot papers tampered with in order to help the Con- gress Candidate in 34 Gonda constituency. Admittedly from the 1st of March to 5th of March, 1962 all the ballot papers remained locked in the armoury strong room and no attempt was made even to open the locks. On th:s 3rd of March, 1962 it had become known that the Chief Election Commissioner would himself come and would see to the recounting in his presence- Tf Ihese officers were at all minded to tamper with the ballot papers it would have been their first thought to do what

they could with the ballot papers before the Chief Election Commissioner arrived ard would not lave waited on the eft chance of the counting of this Gonda con- stituency to start a few days after the arrival of the Chief Election Commissioner. As it happened it waa merely on the taking of lots that the recount of Gonda constituency came afterwards otherwise If lots had decided that Gonda constituency should be recounted first, the recount of this constituency would have started on the 5th of March, 1963 itself and there would have been no opportunity to anybodv to even allege that the ballot papers had been tampered with. This, to my mind, was not the attitude of the officers who had from the very first day, when the counting appeared to go against the Congress candidate, had determined to see that the ballot papers were suitably tampered with so that the result may get altered, I am, therefore, .clearly of the view that any insinuation against the honesty of the officers concerned not based upon tangible facts has no substance and the learned tribunal went wrong in getting prejudiced against them-

33 Balrampur constituency continued to be recounted on the 5th, 6th and 7th of March 1962. The Chief Election Commissioner, however, returned but left the Deputy Chief Electoral Officer to get the recounting done in his presence, and the recounting of 34 Gonda constituency parliamentary started on the 9th of March, 1962 and continued upto the 11th of March, 1962. On the 9th of March, 1962, the entire Mankapur assembly segment and 70 polling st&tions of Mahadeva assembly segment were finished and on the 10th of March. 1962, the remaining polling stations of the Mahadeva assembly segment and of the entire Gonda North assembly segment were recounted by lunch. After lunch the recounting of Gonda East assembly segment started which, as stated above, had been first edunted in the "combined office on the 27th of February, 1932 in the conditions mentioned above- While thia counting was going on, it was discovered that among the ballot papers which had been rejected at the first count on adedunt of there beintr no voting marks or because they had voting marks on the blank space, were found to have marks against the bull cage, the symbol of the congress candidate. It was also found that a large number of ballot papers had been counted as valid votes for Shri N. Dandekar whose symbol w as that of "Star" and those were liable to be rejected on the ground of multiple voting. When a large number of such wrong counting waa discovered, It is stated in evidence that there was an uproar in the counting hall. Such an uproar was natural- The persons present on behalf of Shri N- Dandekar must have felt that the lead which Shri N. Dandekar had acquired at the first count waa dwindling awav like this and as Shri N- Dandekar had already envisaged that there would be a tampering of ballatt papers after the first count, it was treated as a positive proof of the fact that the ballot papers had been tampered with and, therefore, this recounting did not indicate a true position of voting. On the other hand, persons who! were watching the recount, on behalf of Shri Ram Ratan Gupta must have felt that there was the reason why Shri N- Dandekar had got the largest number of votes at the first counting. According to them, there had been deliberately a wrong counting in favour of Shri N. Dandekar which was being discovered then- Thus the persons Interested in both the sides must have become excited, The result of this excitement was, as stated in the petition, that the Deputy Chief Electoral Officer as well as the re- turing officer observed the situation, drafted out a few chart and directed the clerks concerned to enter such voting papers as had been discovered to be wrongly counted at the first count In that chart and also direr-ted that such ballot papers be kept separately- This action naturally must have be""n taken so that such ballot napers may be easily available at any subsequent proceedings that may be taken by the authorities or by the Chief Election Commissioner- The recount in this wav went ctoi till 8 p-m- when It was stopped for the day as some of the packets of the constituency were not avarable and they had to be searched out. However, nothing turns upon this nonavailability of some of the packets con- taining ballot papers of this constituency because all these ballot papers were dis- covered the next day among the assembly ballot papers as they had been wrongly packed with the assembly ballot papers and upon the recount it was found that the ballot papers¹ contained In these packets which had been subsequently recovered, did not contain such ballot papers as had been wronglv counted dur- ing the first count, and therefore, even according to Shri N- Dandekar no suspi- cion of tampering existed with regard to any of the ballot nnners recovered from these packets subsequently. After the work of recount had been stopped on the 10th of March. 1962, Shri N- Dandekar sent a telegram to the Chief Election Com- mlsslonbr which is attached as Annexure 6 to the election petition. In this tele- gram, Shri Dandekar writes, " The recount nf this segment disclosed

extensive tampering with ballot paDers firstly bv invalidating by means of sub- sequent multiple marking about 1600 votes validly counted in my favour at the first counting and secondly by validating in favour of Congress candidate nearly

reply from the Chief Election Commissioner saying that ofrders had been passed not to declare the result or taking any action in the matter. This telegram was followed by a letter and In this letter also there is no allegation that the Deputy Chief Election Commissioner had directed the Returning Officer not to declare the result yet the Returning Officer inspite of such an order declared the result. All that is complained of is that the Returning Officer denied having received anv orders and lnsDite of the objection made bv Shri N. Dandekar declared the result. The only direct evidence on this point is that of Shri Subramanian. Chief Denutv Election Commissioner, who was examined as PW- 3- He stated that on the 10th of March, 1962, certain ballot papers originally held valid in favour of Shri N. Dan^pkar had to be reiected on the grotmd that they also contained another faint mark against the symbol of one or more of the other candidates and therefore, amounted to multiple voting, also found certain other ballot papers comparativelv a few in number which had originally Been rejected over the signature of the A-RO- On the ground that there were no marks or marks on the blank area, thfen contained a faint mark against the symbol of Shri R. R. Gupta and these ballot papers were held valid at the re- count in favour of Shri Ram Ratan Gupta, In paragraph 6 he states, "I then immediately took the Returning Officer to an adjoining room and had discussions with him. I went to the Collector's residence along with Returning Officer at about 5 pm. Collector/RO. himself rang up the Chief Election Commissioner, New Delhi and told him about these happenings and thereafter I was told by Phri NIgam, RO- that the Chief Election Commissioner wanted to speak to me on the phone. I gave the Chief Election Commissioner a cist of what had hap- pened here and a¹ so told him that we were korninf fin account of all these ballot papers which seemed to be abnormal and would report later, and in the mean- time I was directing the Returning Officer not to declare the result The Chief Election Commissioner approved and said I shou'd let him have the report when the countine is ovpr "From this statement of th*> witness it is apparent that he had informed the Chief Election Commissioner about the facts that had ai^endv happened and had premised to report later- He had also Informed him that he ww going to direct the Returning Officer not to declare the re?ult in the mean- while meaning thereby that the result could not be declared before the (the Deputy Chief Election Commissioner) contacted the Chief Election Commissioner

T ^ m [, Returning Officer. The Returning Officer apparently did not a ^ ee to m a ke a ny report of me kind the d e p u ty Chief Mecuon Commissioner fn h # m a i te a i ia t i ⁵e ^ "^ ^met Eiecuon Commissioner see ™ fo nave

iejected baiiot papers appeared to be originally of Shxi i a i K f" t i lt a large number 01 banot papers winch had originally been rejecu^'bv tht A n o* on me ground of no mamng or manung on i n e % i^ i ^ n ow ^ t S i ^ e ? ' *' mark m each case on the symbol or tne Congress cancuuaie. in these cilcums- tances, i am 01 the opinion that there nas oeen some tampermg 01 tne St

1 have already informed you aoout mis yesierctay evening over the telephone This was the statement wnich obviously the Keturning Omcer could not possibly subscribe to. After the mat count the ballot papers haa always been In hi custody. If he was absolutely certain that they could not be interfered with o\ any outsider he could not report to the Chief Election Commissioner uiw. these ballot papers seemed to have been tempered with. This was a matter ot his opinion and if he could not form that opinion he couid not sign such a dratt It was, therefore, natural for the Keturning Officer not to subscribe to such a draft and simply to put it in his pocket even if it was given to him for being faired out and signatures as stated by Shri Subramaniyam. This draft was ori- ginally dictated, as stated by Shri Subramaniyam to the Stenographer and when the typed copy was prepared and placed before him, he made certain correction in his own hand writing and then wanted it again to be laired out which was never done. The draft which has been filed bears corrections in his own hand- writing. The next dralt is dated the 11th of March, 1962. Although Shri Subra- maniyam admits that he had dictated this draft also on the 10th of March, 1962, this draft starts by saying, "whereas on information received from Shri C. M.. Nigam. The Chief Election Commissioner is satisfied that in the interval bet- ween the original counting and the recount a large number of ballot papers pohed at several polling stations in the Gonda Bast Assembly constituency forming part of 34 Gonda parliamentary constituency have bean tampered with." No report as contemplated by this paragraph having been made by Shri C. M, Nigam it was impossible for Shri Subramaniyam. to sign this draft and hand It over to the Keturning Officer directing him not to declare the result. In these circumstances it is obvious that no order was in fac,, passed by Shri Subramaru- yam directing the Returning Officer not to declare the result. Because a large number of ballot papers had been found to have contained marks which should not have been there if the first count was correct, a suspicion had arisen In the mind of Shri Subramaniyam that there may have been tampering but such a suspicion could not exist in the mind of the Returning Officer, who had taken all possible precaution to keep the ballot papers absolutely safe and had himself supervised whenever the ballot papers had to be shifted from the strong room. Shri Subramaniyam therefore hoping that the Returning Officer also had a simi- lar suspicion in his mind might have made out the draff which he has now filled. But such a draft could never be signed by the Returning Officer and was, in fact, not subscribed by him. In the absence of any report from the Returning Officer to the effect mentioned in the draft no order was. In fact, passed by Shri Subramaniyam not to declare the result.

By the way it may also be mentioned that along with these two drafts Shri Subramaniyam has also filed another draft Ext. III. It is not dated it purports to be another asking for an explanation from the A.B.O. as to why such mistakes had occurred in the first counts as had been discovered at the time of the re- count The draft does not say whether it was to be an order signed by the Re- turninc Officer or by himself and at the end of this draft the last sentence is. ''Also state where the ballot papers were kept after you finished the count and before thev were brought into the treasury" This again indicates that this draft Is the S u rt of the roind of Shri Subramaniyam alone as the Return n* Officer rnuld iwt have asked such an explanation from the A.RO. The Returning Officer mmt have known himself as to where these ballot papers were, for he had passed S ^ r n Sr d l r eS them to be placed In the double lock and he must have known

where they were at the time when they were so ordered- There was no ques- Lion of asking the Asstt, Returning Officer to give that information, me xteiurxi- uiit Officer muse have also known mat the baiiot papers wnicn were considered valid by the accounting clerks are not taken to the ASSU. xve turning wmuei- ior orders and he could, not ask the Asstt. Returning Officer as to now ne uaa count- ed so many ballot papers as valid when there were, in fact, invu id ior a uouuie uiarking. The existenoe of such a draft indicates that Shri buwamaniyam him- self was making these drafts without talking to the Returning officer about them. He even was not certain whether the discoveries made on tne recount were due to the mistake committed by the Asstt. Returning Officer and hia staff at the first count or it was due to tampering of ballot papers after the first count and before the recount. In his statement however, ahri Subiamaniyam has un- doubtedly expressed his opinion in examination-in-chief that the ballot papeis had been tampered with before the recount. But in cross-examination he has given his reasons for holding that opinion. He has expressed himself, "I consi- der it safe to reach the conclusion about tampering without making any such enquiry because it was a apparent on the fact of it that the ballot papers were tampered. What I mean by 'Apparent' is that the initial marks being thick with too much of ink and another mark very faint with the Smudge in the former case at the opposite side marks with the same seal simultaneously the second mark will be generally faint another reason is that the counting in done by the counting Supervisor with the assistance of two clerks and In the presence of counting agents of the parties. Such a large number of doubtful ballot papers cannot be counted in favour of a single candidate without any of the persons noticing it. No other reason strikes me My conclusion that so many ballot papers with double marks could not have escaped the scrutiny is based on the assumption that the A.R.O. also scrutinised the ballot papers tne counting Supervisois and counting assistants were Government Officials and I do not expect them to pass such a large number of ballot papers as valid al- though on the face of it they were invalid. If the counting Supervisors and the counting clerks at some of the tables were not honest and if the A.R.O, did not scrutinise and counting agents did not look on them my conclusion may be incor- rect "Thus the opinion of Shri Subramaniyam which he seems to have formed about the ballot papers having been tampered with between the first count and the recount was based upon supposition and inferences without trying to know tne circumstances under which the counting of these two sagments had taken place on the 27th and 28th of February, 1962 which have been stated above. No other evidence has been placed to indicate that the Returning Officer had been ordered not to declare the result upon this evidence, I am not satisfied that the Returning Officer declared the result contrary to any direction given to him for not declaring the result. All that can be said is that Shri Subramaniyam him- self expected the Returning Officer to make such a report and as it for permission uot to declare the result. But that does not mean that there was a direction on behalf of the Chief Election Commissioner under its power of superintendence under Art. 324 of the Constitution not to declare the result. In the absence of such a direction, the Returning Officer was bound to declare the result There was no illegality in his declaring the result on the 11th of March, 1082.

Having consideied the evidence regarding the effort to temper with the ballot papers, it remains to consider the circumstantial evidence appealing from the ballot papers themselves and whether that circumstantial evidence is suffi- cient to prove that they had been tampered with. There being no direct evidence either of tampering or even of an attempt to tamper, the circumstantial evidence must be consistent only with the theory of the ballot papers having been tamper- ed with after the first, count and before the recount. If the special features which have been pointed out on behalf of the petitioner can exist otherwise than by the tampering of ballot papers after the first count then those features would not be sufficient to uphold the theory of tampering. I will now start to consider the evidence regarding these special features appearing from the ballot papers themselves. In respect of about 600 of those ballot papers, the evidence of P.Ws 4, 5, 6 and 7 has been produced to state that they would not have passed these ballot papers at the first count as valid if they had all the marks at that time which they bore at the time of evidence. The second category Is of 7 ballot papers of blind voters and on which marks had been placed by the Polling Officer Eccording to the direction of the blind voters. The last category is of 234 baUot papers which were improperly accepted at the recount as valid votes for Shri Ram Ratan Gupta when they were not found to have any mark on any case of a candidate at the first count and had been rejected either on account of having no voting mark or on account of having marks on the blank space. There is also the evidence of the expert Shri CT T. Sarwate P.W. 11, who has, after preparing enlarged photographs of some of the ballot paners, come to the con- clusion that the ballot papers had been tampered with. Shri Bhadkamnkar. the

election agent of the petitioner has also deposed in his statement about the bal- lot papers that had been tampered wixh. ±113 statement xs not thai 01 an eye- witness but he has expressed his opinion and has given his reasons lor noting that opinion. I will start with the statement ot Snri .bhao.kamnK.ar.

Shri Bhadkamnkar, the election agent of Shri N Dandekar has expressed his opinion and nas also given the nuniDers and details ot the ballot papers which according to him, were tampered wxth and over whicn were originally macte by Uie voters. But it is a matter of his opinion and the evidence is not admissible as such. All that can be ot use out 01 hia statement, are the reasons which ne has given, in his statement, the tirst as reason he has given for coming to that conclusion is ''such large number ot double marked bai.ot papers could not have Deen included in the bundles of valid votes of the petitioner". This tact that a large number of invalid votes were counted tor the petitioner does not neces- barily lead to the conclusion that they were tampered with, it is equally possi- ble mat some of the clerks who were responsible tor the counting deliberately added the voting papers as vaud voles for the petitioner Shri JN. JJanaeKar when- ever they found a clear mark in his star cage irrespective of other marks on it. 'rms siatement is genedaliy true but whenever the voter who had been given an cage were lightly impressed and generally did not show a lull mark of tne seal. This statement is generally true but whenever the voter who nad been given an inked seal, first puts the seal on the star mark and then puts the seal on any other space, the second mark is bound to be aghte^ and it depends upon where the seal is put whether the mark impressed the full seal of only a part of it. Simply lightness of other marks does not indicate that the other marks were not made by the voter and had been subsequently put upon it. if the other marks had been put upon the ballot papers by some person subsequently for the pur- pose of spoiling the vote there is no reason why ne could not put a full seal mark and why every time his seal could be lightly inked. All that can be assumed 1B that alter inking his seal once, he must go on putting several marks on several ballot papers but then the first mark made by him would be fully inked and the subsequent few marks would be lighter. But out of about two thousand ballot papers which have been rejected, most of them contained one mark deeply impressed and the other marks always lighter and that is consistent, to my mind, only with the fact that the voter who had on y one inked seal with him having put one mark could only put other lighter marks on the ballot paper and the fact that most of the ballot papers contained only lighter marks apart irom one which is deeper instead of leading to the conclusion that the lighter marks are forged once, leads only to the inference that they were marked by the voter himself. The lightness of the second and the third marks would depend upon the time which the voter took in making the second and the third marks after making the first mark and no inference can be drawn from this circumstance that the subsequent marks were a forgery. That fact that the subsequent marks were only half or quarter seal also leads to no such inference. Another reason given is that when lighter marks on different ballot papers are compared with each other they are similar. The statement is too vague marks on different bal- lot papers are neither similar in the extent to which they have been impressed nor are they similar to each other in depth of ink. With regard to the ballot papers which were originally rejected as having no voting mark or having a mark on blank area but on which subsequently a valid voting mark was dis- covered at the recount, the only reason given by the witness for contending that those marks are forged onea is that they were lightly impressed and that they could not have been wrongly rejected by the Assistant Returning Officer. The whole contention of the witness with regard to these 236 ballot papers is based upon the Infallibility of the staff of the Assistant Returning Officer while reject- ing these bal'ot papers. I have carefully looked into many of these ballot papers, and I find that the rejection noted by the Assistant Returning Officer at the time of the first count was certainly not very careful for instance, ballot papers Exts. R 7/5 and R 7 /ft had no voting marks at all but they had been rejected by the A.R.O. under his signature as R.M.V. i.e. rejected for multiple voting. Similarly voting papers Nos. R 30/12 to R 30/23 and R 34/e to R 34/11 have been so wongly rejected. Again voting papers Nos. 32/ and 32/2 which ought to have been rejected for multiple votinu were rejected for having marks on blank area. Similar is the observa- tion with the voting paper Nos. 56/4-56/7 and 57/ 57/7 Voting papers Nos. R 30/1 to R 30/1 had marks in the cages of more than one candidate but tney have been rejected on the ground of the having no marks. Again ballot papers Nos R 53/1 and R 53/2 we e reiected for multiple voting but these exists no mark in the caee of any candidate. There were marks on the blank area and should have been rejected on the ground of marks on the bland area. I am, therefore, satisfied that even the rejections which were supposed to have been made by thei Assistant Returning Officer himself after tfcrutinising the ballot papers

brought to him by the Supervisors of different tables for o"ders were nnt rp jected alter careful going into each ballot paper but as amended for bv the learned counsel for the petitioner, were simply handel ovTrto the Assts who ™™" LPfh S°me r e ]'e c f i on s e al u p on t h em ™ t he deve?II sideof the b a fi Papers and the same were signed by the Assistant Returning Oflicor on the fViih lhat his clerks had done the work carefully. It is also to be no ed that the sftu- •tion in which the Asstt. Returning Officer was did not permitted a more care- ful examination. After calculating the numbe- of ballot papers hoti foi the parliamentary and the assembly segments which he had to reject by his order and the time which had actually been taken m doing the whole work ol rejec- tion. It appears that ho had to dispose of one ballot paper in about three seconds J laced in such a situation he could not have given a greater personal attention than merely signing below the seal put by his assistants and the assistants also in that huiry could not have done better than of putting some seal rejecting the ballot papers which had been brought bv the supervisors as vejcctable ballot papers. The learned tribunal observed, when its attention was brought to these mistakes bv the Assistant Returning Officer, that the bal'ot papers were in any case, rightly rejecter] though the reason for rejection may be WJ cms. But the learned tribunal forgot that the wrong reason for rejecting the ballot papers leads to the conclusion that rejections were not carefully done and this gives a scope for these marks also which have been detected at the recount. 236 ballot papers which had originally been rejected either having no mark or as having a mark on blank space in fact contained a mark in the bull cage. In this stage of careless rejection it is not possible to sav that simp'y because these ballot papers had been rejected at the time of the first count they could not possibly have had a mark in any particular cage. That the theory of the ballot papers having been tampered with has been developed as a matter of after thought is clear from the fact that when these ballot papers wore being rejected by the Returning Officer at the time of the recount, no objection was taken before him that particular marks on ballot papers were forged marks and were not marks made by the voters. This fact has been admitted by the witness when he says, "I did not object to the Returning Officer. After the appealance of these ballot papers I was so shocked that I did not think of any objection and subsequently the peti- tioner hfid arrived in the hall". Another reason pive.i by thin -witness is that 18 packois out of the Gonda East and Gonda West scRmp.it'; were originally found missing from the bags of these segments. They weie subsequently search- ed out by Shri A. S. Misra, who said that they had been packed wrongly with the assembly ballot papers, but no ballot paper in these packuyes vyas found to be wiongly counted at the first count. From this, it is sought to be inferred that because these packages had been missing from their proper bags, therefore, they had not been tampered with and the inference that these packages which remained in the proper bags were tampered with, I am unable to accept this contention. On the contrary, the fact that as many as 18 packages relating to 18 polling stations remained outside the strong room for several days before they wero brought back for recounting and were found not to be tampered with at all is proof of the positive fact that the officers were not interested In touching these ballot papers and that they were in the state In which they had been after the first count It is an admitted fact that in each of these seuments of the parlia- mentary constituency, these features were not discovered among the ballot ntiT^rs relating to all the polling stations. The explanation for discovery of these wrong countings in particular polling stations, given by the learned Advo- cate General on behalf of the appellant is that particular clerks at ^articular tables who were interested in increasing the number of votes for Shri N. Dande- kar wero responsible for this wrong counting and therefore, those particular pol- ling stations which went for counting to those tables and were thus w-onglv coimtrrl at the first count disclosed these special features at the recount. _ Thia 13 a verv cogent explanation and slmralv because wrong counting was done in sope,. of the polling stations, cannot lead to the conclusion that the ballot nanerSl comp of the polling stations had been tampered with while the others which eV thoueh remained in the hands of the very persons whom the petitioner suspect as forferers, had remained untouched.

In this connection it mav also be observed that in the applications made, on bphilf of Shii Ram Ratan Gupta wronp counting was suspected particularly in Gonda Norih and Mankapur segments of the constituency because voting for Phri Ram Ratan Guntn wag the lowest in those segments of the constituency. If those very persons had thought of tampering with the ballot papers they would have naturallv laid their hands on the ballot papers of these segments. All these ballot paners were placed at the same place and there is no reason why they let these serrments remain untouched and picked up other segments On the other hand, it is contended by the learned Advocate General that in Gonda East and

Gonda West polling in favour of the Congress candidate was heavy and there- fore Shri Dandekar was losing. In such a situation, the clerks who were sym- pathetic with Shri N. Dandekar started placing every ballot paper in which there wai a clear voting mark in the star cage in his package, if for no other purpose Hian merely to reduce his defeat, and since in those two seg- ments the Congress candidate was winning, nobody cared to scrutinise carefully the voting papers which were counted as valid votes in favour of Shri Dandekar tnd the mistakes, therefore, remained unchecked till the time of the recount. It to also noteworthy that the counting of these segments was done in the combined office on 27th and 28th February 1962 where due to dimeient light and other difficulties, checking was not possible- I am, therefore, of the opinion that the reasons given by the witness for thinking that the ballot papers had been tam- pered with are wholly insufficient to come to that conclusion and he was not •ight in having suspected tampering of ballot papers.

The next witness, who may be considered in this connection is Shri C. T. Rarwate He has been produced as an expert. The only matter for considera- tion in this caw ia whether certain seal marks existing on the disputed ballot wipers had been made by the voter himself or had subsequently be placed by somebody else. This matter is not one on which an expert's opinion is at all admissible under the Evidence Act. The statement of this witness therefore, merely as the opinion of an individual is inadmissible. However, on the Basis *t the reasons which he has fiiven it may be considered whether his conclusion was right He has examined onlv some of the ballot papers which are in dispute and which he has mentioned in Annexure 1 to his report. About this Ahnexure ke says that he examined the ballot papers by naked eye and also by lenses and microscope wherever necessary. These ballot papers bore two or more marks •f voting. He then observed that the marks upon the cages other than the star •age were not made at the time when the mark at the star cage wa" made. The Irst reason for this conclusion given by him is that a large majority Of non-star voting marks are faint. This circumstance I have already considered in the statement of Shri Bhadkanmkar and it leads to no such conclusion. The second reason given by him ia that they showed a lack of continuity. By "continuity" ke means that the depth of ink in the first, second and third marks should go on reducing in a continuous way by decrees and not suddentlv. But that factor depends upon whether the person who makea second or third mark does so immediately after making the first -mark or waits A rtttle so that the ink gets dried up. He himself aaya that when marks are' made in quick succession the difference in depth of the ink should not be very much as exists on most of these ballot papers. If a voter has placed a mark upon the ballot paper and then thinks of placing another mark, ho is most likely to hesitate and would think over twice before putting another mark. This would take a little time and the ink that had already materially exhausted after the first mark will naturally be not deep when the second or third mark it made. This reasoning also does "ot lead to the conclusion to which the witness has come. H© also admits that in some voting papers, mark on non-star cage is almost, as deep as that on the star cage which would indicate that in some caaea at least the second mark was made in quick succession and he admits that in this case it will be difficult to determine that the second mark was not made at the time when the first mark was made. But then he goes on to snv that in some of these cases, star marks left a reflected impression after folding the hallot papers while the non-star wiarks left no such impression and from this he infers that the second murk was MM.de subsequently and not by the voter. This again ia a wrong reasoning. If " pr seal contains too much of ink and on the first mark the ink is deposited nlciently to leave an Impression on the other side of the bnllot paper, if the ^ullot paper is folded soon after it does not mean that the second impression made by the same seal after the earlier ink had pxhausied will also have suffi- cient ink to make the Impression on the other side of the ballot paper after it is folded Another reason for coming to the conclusion that the star mnrk end Mon-star mark were not made by the same person at the same time is that the cross-inside the seal is not parallel in both the. marks so that either the paper or the seal has turned when the second murk Is made. This is so in some of the voting papers but there is nothing to indicate that the voter himself could not turn either the seal or the paper after putting one mark. In cross-examination he has admitted with regard to these features, "The time in which ink takes to dry would depend upon the ink itself, humidity and temperature. There are

inks which dry in two or three seconds If a voter took an interval of about six or seven seconds between two impressions made by him and the ballot paper waa then folded it is likely that the second impression would give reflected impression and the flral may not. If the Ink was a quicker drying one^ the interval will b" shorter. If the impressions arp made by the voter r.ot in

quick succession but with an interval mentioned above by conclusion that the uuiy explanation for absence of one impression shows thai the "non-star voting maik nas been impressed subsequently' would, not be correct. The interval beioie che ink is dry on the rubber stamp itself may be 30 seconds lor partial drying, 11 may even be 3 or 4 minutes belore the ink totally dries up. 11 there aie Uvo seals put on ballot papers one of them nearer the fold than the other it iijdy iiappen on folding that the impression of one is rellected.ana of other is not In my opinion, and in my evidence 1 have net expressly taken these factors into consideration". In view ol this admission the probative valua of the reasons given by this witness is practically nil.

In this connection another aspect ol the case becomes very material. These special features are being pointed out in those particular ballot papers which have been selected by tne petitioner as having been tampered with. But if there are several marks on one ballot paper, one being darker and full ana tke otheis being fainter and incomplete on other ballot papers, which have bee* rejected for multiple marking, it would be quite clear that this feature is not such a special jeaiure in those particular ballot papers only so as to lead to any mierence of tampering. More than three thousand ballot papers m this parlia- mentary constituency alone have been rejected lor multiple marking and a number of ballot papers, if not exactly equal to those must have been rejected ia trie assembly constituency also. It was necessary lor a proper decision on these aspects that all these ballot papers also should have been brought on the record and examined for comparison. Shri Sarwate has admitted. "I would have liked to examine unquestioned ballot papers but I was told they were not available. I had no opportunity to examine any of the unquestioned ballot papers of double marks scienuncally . Not only thai, but on behalf of Shri Ram Ratan Gupta application alter application was rauue tor permission to summon all the rejected baiiot papers for comparison. Three such applications nave been printed and ail were repeatedly rejected by the tribunal on the ground that the other ballot papers were irrelevant. The first such application was made on the 24th of juiy, 1063 and in paragraph 17 of this application all the used ballot papers of Gonda North, Mankapur and Mahadeva assembly segments of 34-parliameritary Loiistituency were asked to be summoned. The second application was mada on the 4th of September, 1963 again for summoning of some of the ballot paperi and again the request was repeated by an application dated the 9th/10th of September, 1963. In this application detailed reasons were given that these ballot j^pers were essential for comparison. But ail these applications were rejected on the ground that these ballot papers were wholly irrelevant. I am unable to see how those ballot papers were considered to be irrelevant when such cir- cumstantial evidence was to be taken into consideration. Some voters who had voted tor the parliamentary constituency had also at the same time voted for tho assembly constituency and it was very relevant to see how the voters had behaved in marking those ballot papers. I am unable to see any force in these general features as disclosing necessarily that these ballot papers had been subsequently tampered with.

This witness has also prepared enlarged photographs of some of the ballot papers. He says that in these ballot papers he had enlarged 36 times its impres- sion. After enlargement it was visible to the naked eye, that there was a brealc in the non-star seal in all these ballot papers but the same break was not visible in the star seal. It is apparent from a look at these ballot papers, which the witness has selected for enlargement, that the star seal has a much larger quantity of ink than the non-star seal which has disclosed a break. The break itself is so fine that it is not visible to the naked eye without enlargement and had to be demonstrated by enlarging the impressions thirty six times. Suck a fine break in the seal would naturally disappear if the seal is heavily inked and it is unfortunate that this witness had selected only those cases for enlarge- ment in which the star-seal was heavily inked. It is impossible, therefore t" come to the conclusion that the same seal having a slight break was not used for making both the marks on the star and on the non-star part of the ballot papers. I have, however, examined carefully all these ballot papers and I am of the opinion that these breaks are not exactly similar in each case and also that in most of the enlargements the break is not visible in light seal marks as weH which could indicate that all the non-star marks were not made by a forger .hurriedly. For instance Ext. P. 45/38 shows a break in the arm of the cross at a much greater distance from the arch. In Ext. P. 35/57 the break on the right side of the arm in the arch is also not similar. In Ext. P. 65/37 there is a dis- tinct protruding out of corner which does not exist in Ext. P. 55/38 Again the break disclosed In Ext. P. 55/48 is of entirely different character. There is a break right from the arm upto the arch and there is a regular channel from th"

arch to the arm. The break at the arch is much lesa wide than at the arm. The very formation of the break is entirely diffcient. I am, therefore, unable to agree with this witness when he sayy that this characteristic break is similar to each other in non-star marking every time and that it does not exist at all in the star mark. I am, therefore, of the opinion that these general observation* with regard to the character of the impressions made upon the ballot papers are wholly insufficient to come to the conclusion that all the ballot papers which had been found at the recount to have been wrongly counted at the first count must be deemed to have been tampered with and on that basis the result of the first count should be accepted as the only coirect result. The evidence oi Shri Sarwate relates only to those ballot papers which he examined and about which he has mentioned in his two lists and. his conclusions even with regard to them are not sound.

In this connection then remains the consideration of the evidence of four witnesses, who claimed themselves to have been engaged in the work of counting on the 27th and 28th oi! February, 1962. These four witnesses are P.Ws. 4 (Das- rath Pd. Shukla), 5 (Bahadur Singhj. 6 (Earn Niwas) and 7 (Hanuman Pd.). I have examined the evidence of these witnesses in connection with the deficiency of light on the 27th of February, 1962, in counting hall and I have come to the conclusion that two out of these witnesses namely P.W. 5 (Bahadur Singh 1 and P.W. b (Ram Niwas) were not at all engaged in the work of counting and have wrongly claimed to have worked as such. The reasons need not be iepeated. Therefore only two witnesses remain to be considered. P.W. 4 (Dasruth Pd, Shukla) was the counting supervisor. All that he stated in his statement was "we were doing the work of sorting very carefully. The doubtful balli t paper* I took myself to the A.R.O. when 1 placed the doubtful ballot papers he examined them. "He was then shown some ot the ballot papers which must have passed through his table according to his own statement. He stated that the ballot papers which contained multiple maiks could not have been counted at his table as valid for Shri Dandekar. He was- then shown a few ballot papers which had been rejected at the first count as having no marks but were found at the time of the recount as having on the bullcage and he stated that he could not have put those ballot papers as doubtful ones and would not have taken them to the A.R.O. if they had a mark on bull cage at the time of the first count. Similar is the statement ol P.W. 7 (Hanuman Pd.). He was a counting clerk and he also states that he would not have committed the mistakes which were found. But these statements lead us nowhere. It only means that these two witnesses did not deliberately place these ballot papers in the wrong box. If mistakes had been made, they weie not made intentionally and it was not possible fur these witnesses in any case to admit even it they did deliberately make wrong count- ing, that they had done so. The evidence with regard to these few ballot papers cannot lead to any general conclusion and even if these few ballot papers about which these witnesses have spoken are excluded from counting, they would not Littect the result

The last group of witnesses on this point ai'e P.Ws. 12 (Ram Saiup), 13 (Raghunandan Singh Yadav) and 14 (Horilal). They have given their evidence with regard to seven ballot papers which according to them had been marked by them on behalf of the voters. They have stated that they did not put more than one seal mark on the ballot papers. P.W. 12 (Ram Sarup) admitted that In his diary he had noted "I pJaced marks at places according to the statement of the voters" I have examined his diary and I find that in his diary wherever he mentions the place where the mark is put, he has put it in plural but wherever he mentions the seal by which the mark is made he has used it in the singular word. His diary is, therefore, consistent with his having placed more than one mark on each ballot paper according to the direction of the voter. His statement, therefore, goes further than what his diary indicated. On behalf of Shri Ram Ralan Gupta a letter was tried to be produced which this witness was supposed 1o have written for the information of Raja Sahib of Mankapur that he had given his evidence according to his desires and that his work should be done. This letter was not permitted by the tribunal to be brought on record on the ground that the witness had merely codroborated his diary and it wns^ therefore unnecessary to go into that question. I am unable to see how this witness has merely corroborated his diary. His diary was certainly equivocal if not entirely in favour of the allegation of Shri Ram Ratan Gupta. It Is his statement alone which clarifies the position that he put only one rubber seal impression on each ballot paper. The statement of this witness is, therefore, not very reliable. The next witness is P,W. 13 (Raghunandan Singh Yadav). In his examination-in-chief he stated that, "I affixed the voting mark only once on this ballot paper accordinf to the wish

•of the voter". But subsequently this -witness objected that he had used the word "perhaps" while making that statement and wanted to correct his state- ment but the tribunal did not permit him to do so as the tribunal thought that he had not used the word 'perhaps' when giving that statement. In cross- -examination, however, this witness has admitted that if a blind voter had insisted that he should put two marks, he would have done the same. He further admits, "1 do not remember if 1 had fixed two marks but I say that 1 have fixed one mark but (.as) that is the rule". The statement of this witness is, therefore, not convincing. The last witness is P,W. 14 (Hori Lalj, His statement relers to only- one Dallot paper. In his diary he does not say that this ballot paper was marked by him on behalf of a blind voter, but he merely mentions tnat the voter was not able to see clearly. There was an objectiqn against her being permitted to vote by the congress candidate but it was withdrawn and so she was permitted io vote. This diary does not mention that upon the ballot paper of this voter .the witness put tn'e mark himself. His evidence is also, therefore, not conclu- sive. 1, therefore, find that there is no evidence on behalf of Shri Dandekar which could conclusively prove that any ballot paper was in a stale at the time of Lhe recount in which it was not at the time of the first count.

Having disposed of the question of evidence 011 facts, I now turn to the legal aspects 01 the matter. Admittedly, the election petition is not based on any corrupt practice. The only ground on which the election of the appellant is sought to bo set aside in the petition is that there was an extensive tampering with the ballot papers after the iirst count and before the lecount as a result of which 1,700 vjalid votes in favour of the petitioner in Gonda East segment of the parliamentary constituency and 130 valid votes in Gonda West segment of the parliamentary constituency had been wrongly rejected at the recount. Similarly, 150 ballot papers in Gonda east and 50 ballot papers in Gonda West -segments of the parliamentary constituency were wrongly counted as valid votes in favour of the appellant at the recount which had been rightly rejected at the time of the lust count. It was also contended that the declaration of 'the result was illegal as :t was against the clear orders of the election Commission not to declare the result. I have already dealt with the last point and I have held that there was no such order. The only other ground which remains is covered by section 100(1) (d)(iii; of the Representation of the people Act, 1951, namely, "If the Tribunal is of opinion that the result of election in so far as It concerns a returned candidate has been materially affected by the improper reception, reiusal or rejection of any vote or the leceptlon of any vote which is void."

In order to come to a finding that a particular vote has been improperly .received by the returning officer or has been improperly refused by him, the tribunal ought to be able to say in relation to a particular vote that this vote ought 110L to have been admitted by the returning oflicer or ought to have been .admitted as a valid vote by the returning officer. The question therefoie arises what is the scope of the enquiry before the tribunal in order to come to that conclusion. The contention on behalf of the learned Advocate General is that the scope of enquiry before tne tribunal was to find out whether the action of the returning oflicer was correct or not. The tribunal had, therefore, to place itself in the position of the returning officer and therefore the scope of enquiry before the tribunal was the same which could be before the returning officer. Therefore since the returning officer could decide as to validity or invalidity of a vote merely upon having a look at the voting paper and observing the way in which it had been marked, the tribunal also could not go further and could not -enter into an elaborate enquiry with the aid enlarged photographs and possibly the use of chemicals for testing the inks and comparison of thousands of ballot papers put side by side If such an enquiry is permitted by the tribunal, there is no reason why, in order to come to the conclusion whether a particular voting paper Is valid or not, the returning oMcer should also not be forced to make an -elaborate enquiry 01 the same nature and if it is permitted the declaration of the results oi elections would become piactically impossible. The contention of the learned counsel therefore, is that the tribunal in the present case had gone much beyond its powers to enter into an elaborate enquiry in order to find out whether particular marks on the ballot papers were made by the voters at the time of voting or they had been subsequently put on the ballot papers. Such an enquiry, according to him, was beyond the jurisdiction of the tribunal. On the other hand, on behalf of the petitioner it has been argued that the enquiry before the tribunal was in the nature of the original suit and all kinds of evidence could be entertained by the tribunal to determine the truth in a particular case and to find out whether in fact a particular ballot paper was liable to be rejected and

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if it was wrongly admitted by the returning officer, or it was a valid vota and ought to have ueen admitted ana not rejected by the returning officer. Learned counsel for both the sides have relied for their respective proposition on Velu- .swaml Thevar Vs. Raja Nainar and others, 17 .Election .Law Reports F-1U1 (S.C). That was a case where the question involved was about tlie improper rejection of a nomination paper and tne objection before their Lordships of tha Supreme Court was that the tribunal could not entertain a ground for rejecting the nomination paper which ground had not been raised before the, returninc -officer. It was held, by their Lordships of the Supreme Court that if the ground was such which could have been raised before the returning oillcer. it was held by their Lordships of the Supreme Court that it the ground was suck which could have been raised before the returning officer, it could also be rais"" before the tribunal. One party relied upon that part where their Lordshlpi have held that the tribunal could also entertain the pleas winch the returning .officer could entertain and contends that the tribunal can only consider evidonoa wmch the returning officer could entertain while ihe other party relied upon the observation that the tribunal had to decide regarding the validity of th" ^nomination paper and not about the correctness of the decision by the returning olticer and contends that in the present case what the tribunal had to decide w"3 whether a particular nomination paper was valid or invalid and npt whathar the decision of the returning officer was valid or not on the basis of the evidensa beiore it. In the first place, I think, that this point is not very material after the findings of fact given by me above but u a decision w necessary, 1 peraonallj think that there the question is one ot evidence and considering the practicabihir •of the matter. I am of opinion that the enquiry of the nature gone through jji ihis case cannot be permitted and is not contemplated by law. Here what ia Bought to be found is as to what was the state of marking on the ballot paper exactly at the tune when the voter left that ballot paper and atler determining that stale to treat that to be the only valid mark on the ballot paper and to ignore -all other marks that may exist on the ballot paper, n such an enquiry weio permitted, tha reault would be that the best evidence on the point, namely, tha voter hunselt will have to be produced as to how he marked the ballot paper and left it in the ballot box. All other evidence on this point would be merely circumstantial and not conclusive. Such an enquiry would completely violate the principle of secrecy of voting and I um unable to accept that the legislature ever intended to permit such an enquiry and then to count each vote on the basu oi the finding of the state of the ballot paper when the voter left it. The intem- tion of the legislature is made apparent by the provisions of section 58 of tke Representation of tne People Act, 1951. This section provides for a fresh poll in ilie case of tampering of ballot boxes. The relevant part of the section is an

station

follows, "If at any election uny ballot box used at a polling is damaged or tampered with to such an extent, that the result of the poll at that polling station or place cannot be ascertained the returning officer shall forthwith report the matter to the Election Commissiom Thereupon the Election Commission shall after taking all material cir- cumstances into account, either declare the poll at that polling station or plaea to be void etc. This section, to my mirtd, makes it clear that in case tampering of ballot boxes—which must include tampered with ballot papers for. otherwi"a ii mere tampering of ballot boxes would be ot no sequcnue so lar as the election is concerned—is discovered, if it is very minor, it has to be ignored and if it i" to buch an extent that the result of the poll at the polling station cannot be ascertained, then the whole election of that polling station hag to be declared void. There is no provision in the Act saying that the tampered votes are to ba scrutinised in order to llnd out which part is tampered and which part is not tampered and then to count that vote on the basis ot the finding of the non- tampered part. Rule 55 (4) of the Conduct of Election Rules, 1961, also is to the .same ellect which is as tollows, "If the returning officer is satisfied that any bal- lot box has in fact been tampered with, he shall not count the ballot paper* contained in that box end shall follow the procedure laid down in section 58 in lespect of that polling station" IL is therefore clear that the intention of tha legislature was not to count the ballot papers which were suspected of having been tampered with and this could exclude an attempt to find out what is 1ho tampered part and what is not the tampered part and to count the vote on the basis of the non-tampered part. After providing in rule 55 mentioned above, lor non-counting of suspected ballot papers, rule 56 thereof gives instructions •to the returning officer as to what ballot papers are to be rejected under headi Cd) to (h) of aub-rule (2). This rule relates obviously to unsuspected votes. Then follows the first proviso which is not relevant and the second proviso is .us follows, "provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more tham once if the intention that tha vote shall b* for a particular candidate clearly

appears from the way the paper Is marked- "To my mind, this proviso refers- •mly to those voting papers which are not suspected of having been tampered' with and merely deals with those cases where marks made by the vnter himself are not clearly in the cage of one of the candidates, but "if the way in which the ballot paper is marked" shows his intention clearly then the mere fact of the mark being indistinct or having been made more than once will not render the ballot paper invalid. It ii not possible to read in this proviso the power in the returning officer to ascertain which mark has been made by the voter and' i-hich of them haj been a rtsult of the ballot paper having been tampered with hy outsiders. To my mind, therefore, the whole enquiry before the tribunal. In "n attempt to discover which part of the ballot paper contains a mark made by the voter himself and which is not, and to count the vote on the basis of the decision as to which is the original mark, is completely against law. All that the tribunal had to find out was whether tampering of the ballot papers was to such an extent that the result could not be ascertained and in that cose the whole result sRould have been set aside and a repoll ordered. But after the findings given hy me above, even this procedure was not called for. In any case, the finding of the tribunal that because some of the ballot papers were according to It proved to have keen tampered with, therefore, all the ballot papers which had been counted at the first count for the petitioner must bp deemed to have been validlv counted, is an unsupported finding. Apart from the ballot papers which are being challenged as tampered with, a number of bnV^t papers were brought to our notice which bore no mark In any case of any candidate but had not been reiected at the • trst count and so must have been counted as valid votes for some candidate which oannot be ascertained now. But those mistakes were discovered at the recount and were reiected either on the ground of having no voting mark or on the ground of having a mark in blank space. Some of these exhibits are as follows; "R—12, R—13 2. R—13/3, R—13/4, R—13/5. R—13/fi, R—lfl/1 to R—lfi/3, R—IP, R—28/8. R—32/2. R—3fl. R—38/1. R—45/2 and R—59". "tfven if these particular votes in respect of which direct evidence has been given by P,Ws, 4, 7 and 12 to 14 are excluded as tampered ballot papers, the result declared at the recount will not be altered.

In the petition a prayer was made that after setting aside the election of the successful candidate the nrtitinu^r be declared to hive been dulv HectPd. The. tribunal has passed that order. The successful candidate gave a notice and filed a petition under section ^7 of the Representation of the PeonJe Act, 19!U and has jffven evidence to show that the petitioner himself was nuiltv of corrupt practice and If hp had been elected as s candidatp and his election had been challenged on •the ground of corrupt practice, now raised his election would have been set aside. Tn view of the finding in the election petition itsplf. I do not consider it necessary to examine this aspect of the cas"" as the election of the successful candidate Is itself heinq; uphp'd as valid and therefore, no question of going into the recrimina- tory petition arises.

The result iherefore is that the order of the tribunal jetting aside the election "rf the appellant is set aside and the appeal la allowed with costs. The election of the appellant is held to he valid.

Along with this appeal, as stated above, a number of appeals and writ petitions have been filed by the officers against whom remarks have been mode by the tribunal in the course of its judgment. Since the judgment of the tribunal itself has been set aside by me, I do not find It necessary to again consider the same facts separately and give a decision regarding the conduct of these officers. Suffice It to say that the conduct of none of these officers to my mind, has been proved to be either mala flde or In any way, derogatory to what their conduct ought to have been Some of these officers filed appeals also and a question had arisen whether the appeals lie at the Instance of these officers against the remarks made in the Judgment of the tribunal. An elaborate argument was heard but I need not con- sider all the details. In my opinion since no corrupt practice was alleged In the election petition, the question of naming any person as guilty of corrupt practice does not arise and, therefore, it is not possible to hold that these officers were the persons named as having been guilty of corrupt practice and they had, therefore, a right of appeal But in the writ petitions, they could certainly raise the question that the remarks had been made against them without giving them an opportunity cf meeting the allegation against them. On the other hand, it was contended that the remarks made against the officers were a necessary part of the fabric of the judgment and. therefore, could not be expunged from it Since however, the whoT judgment of the tribunal has been set aside, I do not consider " nw-essDry to decide these matters either. The writ petitions and the appeala filedI by the officers mentioned In the beginning of this judgment are dismissed a" infructuouF and unnecessary and parties will bear their own costs.

Sd, J. N, TAKRU,

Hon'ble J. N. TAKRU, J.

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