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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 14 th February 1967

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, 405, 496, 5173, 5174, 5215 and 5286 of 1964.

HON'BLE B. DAYAL, J. HON'BLE J. N. TAKRU, 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 Rat an Gupta (Congress) was declared elected after a recount and Shri Narain Dandckar (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 1062 was filed by Shri Narain Dandekar on the 23rd of April 1962. Another El'ection Petition No. 340 of 1962 was also fil ed by Shri Gomti 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 bo invalid on account of multiple marking. Some votes which, had been previously rejected as containing no mark, were tampered with the subsequently found tLi have marks for Shri Ram Ratan Gupta. Consequently these tampered marks made subsequently after the first 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 Ram 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 cose 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 circunistances 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 valldly 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 Ham Ratan Gupta and declared Shri Dandekar to be duly enected. 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 declaring Shri Dandekar to be duly 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 has 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 appeal Ko. 328 of 1964 and writ petition No. 494 of 1964 against the remarks made aeainst him. Shri Krishna Madho Saran. the Treasury Officer has filed appeal No. 341 of 1964 and writ petition No. 5174 of 1964 Shri Kalicharan Jauhari, Nazir Sadar of the Collecforate at Gonda has filed onlv writ petition No. MIS of 1964. Shri Maqbool Husam, Election Inspec- tor has filed writ petition No. 5286 of 1964 as also Shri R. B. Jauhari, District Section Officer has filed writ petition No. 5173 of 1964 all against the remarks made against them. Apart from these officers against whom remarks haye been made in the ludgment of the Tribunal, the State of Uttar Pradesh has also filed writ petition No. 496 of 1.064 as the Tribunal also made remarks which have given a cause to the State to have R grievance aeamst the i lodgment. I first pro- pose to deal with the main appeal filed by Shri Ram Ratan Gupt as all the rele- vant facts will have to be dealt with in that appeal. After deposing of that appeal, it wiH 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, (ii) Gonda West, (iii) Gonda Ncrth, (iv) Mahadeva and fv) Mankaour. The first counting of this Constituency took t>iace 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 votes. It is not necessary to mention the votes obtained by Shri M H Bajgir 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 Shatniana on the lawn of the Collectorate at Gonda. The counting thus of both these places went on simultaneously on the 27th February, 1962. On the next day, the 28th of February, 1962, the counting of Fonda West was taken up in the combined office, that of Mankapur in the Sharniana 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, 1662 and the rest in Gonda West which were also counted in this room on the 28th of February, 1&62.

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 Febiuary 1962 when Gonda West was counted the mistakes were much less. But still the mistakes did take place on the 28th of February, 1962 also a^ 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 7,076. 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 01 this number of 1,928 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 ihc 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 1 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 attitude 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 spoPed on account of multiple 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, 1962 was such that mistakes were bound to occur. According to Shri 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 were 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 petty officials in the locality and who were acting as counting clerks and Suoervisors. It is said that on account of ihese factors a larpe number of invalid votes were counted for Shri Dandekar. It is pointed out that this was known to Shri Dandekar 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 bejanninfi. event by event which according to one or the other party affects the result of the iecount.

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 timo of the first count This office was inspected by the Tribunal and the in- sp^ction-note is on the record. From this Tote, it appears that the room was

20 X35' the length being north and south. It was closed on all sides except towards the east. Towards the east there were three doors and beyond these- 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 room 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 light-points. 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 was 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 witness, who haa 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 o>y 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 mere'y '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. 31. He has stated that he was the person who was appointed as Supervisor at the time of the counting. He has also slated that he knew Sri Bahadur Sinfh 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 he 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 o1 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 even-ng natromax lights were placed in the verandah which is also contrary to P.W. " and P.W. 7. I am therefore, not prepared to p⁷ace any reliance upon this witness. The next witness is P.W. <3 (Ram Niwas). He says that he was the counting clerk m the Gonda Parliamentary Constituency and did that work on the 27th and 2Bth of February 1962 In his examinatlon-in-chief he stated that he did not find the light insufficient. His presence' in the counting hall wns also challenged by the other side He has stated in cross-examination fPa-agraph.12) that he was the Basta Bardar in the record room. But in the duty list one Ramniwa] Singh was mentioned as the person to take part in the counting. This RnmHwai Singh is described as the record-keeper. A Basta Bardar or the record-lifter could not have been described in the dutv list as a record-keeper. R.W. 2 (Shn Mujtiba 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 Collectorate but he was not present in the counting-hall. This witness Sferl Muitiba Husain was the Supervisor at table TNTo 16 and PW 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)

g- ftU O t^er !v l£e n5e Jn the case indicates that tables Nos. 15 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 TyZ ? ° MmMhe """tfwg-hall. In paragraph 13, he stated. "It is wrong to say ^ P f l n i ^³ N° ^^{1 5}A nn d. L⁶ w e r? °n e ith er s ide of the door". This statement is "nH IR wP and 16 were on either side of the door leading to the western* room. Ho then .states in the same paragraph (13; that there were no chairs in this space between the two rows of takes. 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 AJ 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 Shn 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 P.W. 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 wunt of light. His presence in the counting hall was also challenged but I do not sec 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 electric 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. R.W.I (Ramanath Mlsra) election agent of Shrl Ram Ratan Gupta, (R.W.2) (Shri Mujtiba Husain) counting Super- visor R.W. 4 (Shri Achutanand Trlpathl) 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, riave 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 Officer informed them that efforts were being made to improve the light. In view of the fact that the peti- tioner's own 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 leaves no room for doubt that at least the natural light during day time was insufficient to carry on the work. To this extent at least, the witnesses produced by the petitioner were wrong In saying that the day light was sufficient to carry on the work. Apart from this oral evidence, there is also a document which had been summoned from the Nazir, Collectorate at Gonda. This is a slip dated the 27th of February, 19G2. It starts with a note by one Shrl B. S. Bark addressed to the Sardar Nazir and states: "I have been directed by Shri A. S. Misra to nsk you to arrange for (i) six patromax (ii) four bulbs of 100 Wts and 150 Wts. each." Then follows a note by Shri Kalicharan .Tauhari, Nazir Sadar. This note is addressed to the Inspector Elections and it says, "Kindly direct Shri Mohd. Jamil to fix four bulbs of 150 Wts. in the counting hall and two bulbs of 150 Wts. in the verandah at once as desired bv Shri A. S. Misra, Returning Officer, Gonda—East Constituency. He is fixing bulbs in the lawn." Next after that is a note by Shri Maqbool Husain, Election Inspector, He says "Out of the twenty-five bulbs already given to you four bulbs may be fixed." Then the last note is by Shri K. M. Saran. Offlcer-in-charge, Nazarat. He addressed it to the Election Officer and stated. "I regret, Nazir Sadar has got no 150 Wts. bulb with him. All the twenty-flve bulbs supplied by the Election Officer, have already been fitted at different points and they cannot be taken out. Please spare six bulbs of 150 Wts, each at once". According to the petitioner, this document is a forgery and had been procured subsequently In order to boost up 'the case of deficiency of light. Out of these Officers who had signed the slip Shri B, S. Bark and Shri Maqbool Hasan have not come in evidence. But Shri Kalicharan Jauhari and ShrJ K. M. Saran Officer-ln- charge Nazarat have been produced. This document has been criticised on several grounds In the first place, it is contended that there was no written complaint made to the Assistant Returning Officer about the deficiency of light and. therefore, there was no occasion for him to ask for better light. I am unable to see any force In this contention. If even an oral complaint is made to the Assistant Returning

Officer who himself saw the condition of light. He would naturaliy 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 patrornnx 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. Bark wanted four bulbs of either 100 or 150 Wts. and patroxax lamps yet the Nazir, Sadar while writing to the Inspector asked for fixing four 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 was bound to take time. He, therefore, directed the Election Inspectlor 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 bulbs, 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 not, therefore, be of any use for the purpose required. This note was made by Shri K. M. Saran, who was the Offlcer-in-eharge 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 bulbs on the 28th of February, 1962, though it could not be made on the 27th of February, 19G2. 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 have also been criticised. Shri Kalichnran Jauhari has been produced as R.W. Id. He was the Nezir Sadar in the Collectorate at Gonda. He stated in examlnation-in- chief that m 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 Husain the Election Inspector. After receiving this note, he took it to the Officer-in-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 r.ote by 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 time return- ed it and informed him that the Election Officer was not available to hrn in the Collectorate 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 till 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 he had been supplied 29 bulbs of 75 wts. for purposes of the use in connection with the counting He had used these bulbs before the demand came. It was the duty of the election office to supply the necessary articles at the Nazarat which was also helping In making arrangements and, therefore, when the need came to him he asked the Inspector of Elections to make the necessary arrangements. He stated that he had kept no note how the twenty-five bulbs supplied to him were utilised. He was asked when he had nothing to do with the arrangement for elections why did he not ask Shri B S. Bark who had sent a note to him, to write to the Election Inspector directly and he had merely stated that he could not give any good reason why instead of making a note to Shri B. S. Bark he hlmseli addressed a note In the Election Inspector, I see nothing disparaging in this reply. Shri B. S. Bark,

must have been busy in counting and naturally the Nazir instead of disturbing him thought it proper to send the note to the right-man. He was also asked that in the note there was no mention of '2' bulbs for the verandah and how did he make that mention in his note. He merely stated that he did it on his own initiative. I see nothing wrong in his 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 OfflcerJn-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 H,W, 24. In his examinatlon- ln-chief he has stated that the Nazarat Office used to provide facilities to help the District Election Officer In connection with the ejection 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 out 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 Itacilitate their work and it is most unnatural to expect that these two olllcers 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 on 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, 1062.

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 chack 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 votes of one of the candidates or to its being placed in the doubtful votes by the clerks, Shri V. B. Bhadkamnkar election agent of Shri Dandekar has stated In paragraph 155 of his statement that the counting agents were sitting on benches rind were looking at tables "sometime sitting there and sometime standing up. In my opinion, they could see by sitting whether the ballot papers were valid or invalid." P.W. 8 (Shri Jamuna Pd. Srlvastava) who was an Advocate at Gonda and was the counting agent of Sh'i Dandekar has stated in his cross-examination: "The counting agents were not allowed to move about freely in the hall. There were benches which were allotted for the counting agents to sit and to which the actual procedure of counting." P.W. 4 (Shri Dasrath Pd. Shukla) who was a counting Supervisor has stated: "The counting agent of a candidate could not supervise the counting at every table because every agent had to keep a watch over three tables". P.W. 5 ' (Shri Bahadur Singh) states that the counting agents of the parties used to sit on the bench and the agents used to manage two or three tables each. P.W. 7 (Shri Hanuman Pd.) also states that the agents of the candi- dates used to sit on the benches and they used sometime to come to the tables. From the statements of these witnesses for the petitioner himself the position of the agents Is quite clear for each of them had to watch three tables. On each table there were two clerks, one dealing with the Parliamentary votes and the other dealing with the Assembly votes of the same sector. The duty of the agent, therefore, became to watch the work of at least 3 clerks simultaneously, sitting on three, tables. The agents were supposed to keep sitting on their benches and Crom there to watch all this process. In these circumstances, it Is quite clear that the agents of the candidates could not have possibly seen how the ballot Daoerp in the hands of each of the clerks were marked and whether the clerk was putting it for one candidate or the other. The supervision of the election agents over the works of the clerks was, therefore, almost nil in that situation and the system or counting, as prevailed, was that If the clerk concerned considered a vote to be valid and placed it for one candidate or the other, it was not necessary for the Assistant Returning Officer to' lo'ok into those ballot, papers. It was also natural because one man could not possibly check UP each ballot paper which were run- ning Into lacs, within any reasonable time. The responsibility, of incorrect count- ing or of mistakes rested entirely upon the clerk and the supervision. I am,

At this stage it will be convenient to deal with one more argument on the question whether PW, 5 (Shri Bahadur Singh) and P.W. 6 (Rant Niwas) were present in the counting haU 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 m 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 diflerent persons in order to ascertain wheiher 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 v;hich different tables on which diilerent 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 such 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. The 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 eome sort of a chart had been made out, it may have been destroyed HH 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 be sup- ported and seems to be an unnecessary remark.

The work of counting started at 10 a.m. on the 27th of February, 1962. About an hour was taken by the Assistant Returning Officer in instructing the counting clerks and Supervisors about the performance of their duty. At about 11 the actual counting started and continued, till mid-night. There is difference between the parties, as to whether the counting on the 27th of February, 1962, finished at 11 p.m. or well after the mld-ni"ht in the early hours of the morning. Nothing depends on the exact point of time when the counting came to an end on that night. Next morning the counting started at about 8 a.m. The counting of Mankapur segment started about afternoon and was last to be counted. In this Segment there was a heavy polling in favour of Shri Dandekar. the Swatantra party candidate. At about 9 p.m the lead which Shri Ram Ratan Gupta had acquired in other seg- ments began to dwindle out and the case of Shri Dandekar Is that about that time the Returning Officer as well as Shri Ram Ratan Gupta came to that place. At Hrst everybody expected that Shri Ram Ratan Gupta was succeeding, and, there- fore, the Returning Officer "through the Distt. Election Officer directed everybody to expedite the counting and finish very early. But while they were still waiting, it become apparent that the lead acquired by Shri Ram Ratan Gupta had been practically equalised by 9.30 or 10 p.m. The Returning Officer and the District Election Officer "who had been waiting to take steps towards the declaration of the result of the parliamentary election that night left the place and so did res- pondent No 1." The insinuation obviouslv is that the Returning Officer Shri C, M. Nicam and the District Election Officer Shri Jauharl were in sympathy with res- pondent No 1 and when all of them saw that the lead of respondent No. 1 was dwindling away and had practically disappeared they all left the place in order to think out some method how to overcome that difficulty. This is the first fact alleged on behalf of Shri Dandekar to indicate that the Returning Officer and the District Election Officer were In league with respondent No. 1, and wanted to help him In every way in the matter. This fact is denied by the officers concerned in thdr writ petitions as well as by respondent No. 1 in his written statement. On ttts print on behalf of Shrt Dandekar oral evidence has been produced The first witness is P.W. Shri Dandekar himself. He was not present on the 1st date of counting and h s pvldence is therefore, nof relevant on this question RW. 2 (Shri V B Bhandkamnkar) has stated that respondent No, 1 came to the'Shaman* at about 9 pm where Mankapur was being counted. Fifteen minutes later, the S nL nfflrer Shri C M Nlgam with the Assistant Returning Officer Shri

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 Pm. and" having gone away In this 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 this time "in the above sentence refers to the statement of tarts mentioned In the previous paragraph. It is, therefore, important to quote the relevant sentences from 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* lor the result of the postal ballots which had still to be opened, I was thus first and he was second and at this stage a number of objections to the counting of Mankapur As- sembly segment were started by or on behali 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 the laght 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 & 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 9 p.m. and the story of his having come to the counting Shamiana at 9 p.m. seem to be an after thought nnd no reliance can. be placed upon it.

According to the previous arrangement, the results were to be declared at 10 p.m. on the 28th February, 1962. But the counting of Mankapur segment did not finish till 10 p.m. The case of Shri Dandckar 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 fmportant 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 12-25 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 If) 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 bo 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 A.R 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 next 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 tn the A.R-O. after the counting was over, which was 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 wag denied that the order was in contradiction of any earlier instructions by him through the Dlstt- 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 on this point is 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 waiting 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 a-m- and made a note on the document marked Ext. P. 42- He further states that immediately after making that endorse- ment, ho went 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, 19G2, 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 1his stage it 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 the result of 33 Balrampur and 34 Gonda Parliamentary constituency will be declared orr the 1st March at 11 a.m. in my office in the Collectorate¹'- 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 66 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, 1961 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 desiro to fix their seals and take sufficient precaution for their safe custody during such intervfils." As a result of the order of the Returning Officer, two things happened- The counting of the postal ballot papers wns continued except that of postal ballots, which were to be counted by the Returning Officer himself when he came the next morning for de^aring the result, and the result was not declared then. It is, therefore, contender! 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 "cotinue as far as practicable" and in the situation in which the 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, therefore, think that by

this order on 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. B.hadkamankar stating that 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 Election 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. Bhakamankar 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. Mj,sraf 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- Misra nas stated the time of receiving the application as 10-45 pm- and in para- graph 5 of the order he states, "Totalling is still in progress. The total upto polling station No. 76 Is yet ready and it tallies with those election agents and candidates who have prepared the statements of totals.'' This order was passed- at 11,30 p.m. It is, therefore, indicated by this order that at 11.30 polling station No- 7G had been counted and the totalling of that round of polling stations was. 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. Throughout 'Ve 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 3 "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- The application itself is dated 1st March, 1982. 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 contituency 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 given 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 28th 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 a.m. on the 1st of March, 19G2. 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. U. 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 80 minutes, after the counting is over to finish the whole process, it would be clear, calculating back from 1-15 a.m., that the counting must have come to an end at about 12 midnight. I am unable to agree with thig 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 nn 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, 19S2- 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 stall- 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, one of each polling station, the same being then labled and signed by the A.RO. 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 tale process and where Shri R. N- Misra has stated that it takes 90 minutes, he does 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 Kartianl 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 p-m. 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 9-30 p.m. and at about 9-45 pm. 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 anend- He waited for 10, 15 minutes for the declaration of the result but the Returning Officer had hot come. He there- fore went to the bungalow of the Returning Officer (Shri C. M. Nigam). 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 sont 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 Officer, 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 there any mention of this Kartyani Datt story In the election petition itself. Although in paragraph 33 (nib-paragraph 3) B 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 Jauharf 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 Kartiani Datt made after the counting was over that he would be coming 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 he 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 counting agent for Capt. Ramgarib and that he had signed T;he 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 slid 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 form 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. Ho 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 as 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 Enid that it had become late in the night. He felt surprised but ho went home- He states that he maintains a diary and ho 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 hud 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 seven 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. 14, 15 and 16. This allotment of tables would not have been possible if he had not actually acted- But this time again this witness donied 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 examination-in-chief he stated that about 9 pm- his younger brother informed him that Shri Dandekar was winning. This statement also does not appear to be correct- By 9 p m- 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 Oonda West Assembly segment finished at 8 p.m. By that time It was known that 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 3d 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 hig ErofKer at hla residence in the city of Gonda that the petitioner Shri Dandekar was winning, it ia obvious that he was not telling the truth and Lf this fact is not true, then there was no chance of his having come to the Shamiana where the counting 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 Returning 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 SKamlana 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.

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 Officer. Obviously this second application was necessitated because of the dismissal of his previous application but that does not moan 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 Assisant 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. 1 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 of March, 1962, but it is dated 28th of February, 1962. II appears that thia application waa 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 nnd 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 thjs 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 face 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 of votes had been treated as rejected on the ground thnt they were not marked wb?n in fact, marks were present on them. In the next paragraph, a complaint had been made that a largo 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 in the whole Parliamentary Constituency was prayed for. It was stated pai-tlcularly that the recount be done in respect of the areas covered by the Assembly Constituencies of Gonda North and Mankapur. This application was granted by the Returning Officer by his order dated thp 1st of March, 1962 (Ext, P-4). On this date he has granted two applications for recount, one relating to 33 Balrampur Parliamentary Constituency and the other relating to 34 Gonda Parliamentary Constituency, In the Balrampur Constituency the Congress candidate nart received the largest number of votes and the application for the recount had been made by an independent candidate. In the Gonda Constituenc?', 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 S*in Ram Ratan Gupta, the Congress candidate. Both the applications were granted by the Returning Officer as he thought it fair and proper In circumstances mentioned in 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 iurisdiction 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 B3(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 mav 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 give 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 in an 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 load to an inference that this order had' been made not bona flde 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, 1&62 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, 19S2, 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 aopoint a responsible officer for making the enquiry. He asked 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 wnnted the recount order passed by the Returning Officer to be set aside, and that if necesasry to hold the recount in Mankapur Assembly segment only. But if in the opinion of the Chief Election Commissioner, a recount was ordered Ilien 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 the 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 mctlves 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 Gonda 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 u 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 for the purpose. If there had been any intention ol me Ketu.niiig ufficer to give an opportunity 10 a party to get the bailot 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 the order was carried into effect alter a few hours at about 8 P.M. yet it is not even suggested that anybody lampeitd with the ballot papers during this period beiore they were placed in the treasury strong room.

Alter the Returning Officer had passed an order for recount, an assurance was taken from him that the recount of this constituency would not start before the 4th of March, 1962. He, therefore, fixed the schedule of the recount by starting the re- counting first with 33 Baliampur Constituency from the very next day i.e. the 2nd of March, 1962. He directed the recount oniy during day time. After finishing with Balrampur he was to Stan w^tli 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 alone 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 himself not to take 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 granted, 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 be 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 counting must h;ive been tired and naturally must have become careless in scrutiny and during the darkness of night also the work of sc. utmy could not have been aone 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 sa possible so that the other party could get an opportunity of squaring up with the olflcers and preparing a scheme for tampering with the ballot papers. I 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 papers of both Balrampur and Gonda Constituencies in the treasury double IOCK. the next phase of the argument starts. This relates to the safe custody of the ballot p.ipers. Shri Bhadkamnkar has stated in paragraph 37 of his deposition as to how hi; 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 safe 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 segment 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 A.R.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 reached 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 bags 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 iind 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. F-l which was the memo relating to Mahadeva 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

er™,,v ,UVn e i> w e re ?ot Pi a c e ti in " anct were aeuoeraieiy piaced in the uipie

SEC. 3(ii)] I HE GA/.ET1E UF 1,\DIA E\ I RAORULNARY 4 2 <;

entered therein. This register was criticised on the ground that the exact proce- dure which was followed in the valuables register was not followed in this register inasmuch as each bag of bags which was kept there was not given a separate serial number with the result that whenever one bag was taken out It was not entered in the register that the bag bearing serial number such and such was taKen out ana w^never that bag was brought in again a separate serial number was not given to It. By not following this method and putting separate serial numbers it was possible for the officers to take out one bag and to bring in another Dag ana there would be no check in tne register to indicate that the same bag had come back which had been token away previously and In this way it was possible for the officers to taKe away the bags of parliamentary constituencies on the pretext that tney were taking away bags of assembly constituencies and then to bring back tne parliamentary constituencies bags alter having tampered with the ballot pupw;; under the guise of bringing in Assembly Constituency bags of another constituency. How the bags were taken out and brought in loim 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 Uiemse.ves 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 inchaige of the baga 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 it 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 tht: 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 ox 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 In the treasury triple lock was motivated to facilitate the tampering ot the ballot papers. What is being suggested is that the ballot papers relating to the Gonaa East and Gonda West constituencies had been removed from the treasury triple lock on the 8th o( March, 1962 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 ua 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 oast on the bona ftdea of such movement of bags. In order to appreciate the movement ol bags, it is necessary to see first the slips under which the ballot papers wore kept in the treasury triple lock by the different officers. Ext. P-U8-E is a note addressed by Shrl 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 18 sealed boxes and 5 bags containing ballot papers. The next is the slip of Shri S. P. Mlsra (Ext. P-U8-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 this 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 glass and I am clearly of the opinion that there is no substance in the suggestion that 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 Jayharl 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 Shrl R. B. Jauhari. But later another endorsement was made stating "deposited 13 bags in D.L.." and this time it -was signed by Shrl 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, six related to the Parliamentary constituency and seven to the Assembly constituency since Shri 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 In the treasury strong room. He therefore, brought all the 13 bags which he had in his. 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 be 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 the assembly constituency. ThL* he came to know when at the time of the re- count all the parliamentary baga had been taken for that purpose but the seven

bags remained inside the triple lock armoury strong room. He then aakari why they had not been taken for a recount and he was informed that they weie assembly bags. They were thereafter removed from the treasury triple iock ajmoury 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 sagments. 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 tew uncounted balloi papers were brought back in the treasury room on the 5th of March, 1962. On tne tith of March, 1962, again five Lags were taken out including the small bag with the result that three bags which had been "taken out on the 5th of March, 1962 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 little more were counted on the first day and three bags and a title more were counted on the second day. If the to"tal number of bags had been only three, there was no possibility for the recount going on for two days and the cintention of the learned counsel for Shri N. Dandekar that there were only three bags for this parliamentary constituency is based on mere surmise and a desire to find fault where there is no iota of evidence In support of it. It was then contended that from the account of Shri R. B Jauhari 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 after 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 bags remained '*' and not '8' as suggested. Since Shri R, B. Jauhari had not been called to the witness box by any party 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 the account fully proves that there was six bags of parliamentary constituency which had been counted on the 5th and fith 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 end the recount actually started from the 5th of March, 1962. Three bags were, there- fore, handed over Immediately for the recount. The Treasury Officer has ex- plained that he did nut 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 and therefore Shri R. B. Jauhari took away three sealed bags, 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-H8A) 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, 1962. 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, ]962 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 bags i.e. why they were taken out and fresh bags brought In after tht 5th of March, 1962, when the recount started, was justified or, as has been alleged on behalf of Shri K. Dandekar, there was no genuine necessity for this movement and an occasion was created for the unnecessary movement to facilitate tampering of the

could not do the work and it was verv important that the arms be cleaner! 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 H-fi it apoeara that on the same day Shri R. B. Jauhari made a note addressed to the District Magistrate saying that the bncrs erf ballot papers of the 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- chanre of arms then made a final order to the nazir as follows: "Inform the tashttdar to take the bags of recounted constituencies to tnhsil and Inform T.O. (treasury officer) to transfer the rest of the double lock." The last entrv on this neper is an endorsement by the nazir "corrmlied with In the presence of D. M. and D E O" and after that it a note bv Shrl K M. Saran treasure officer statin? that the bPffs were kept in t*" double lock and IS bass were handed over to the officers HH follows "5 bags to S*>H R. B. Jauhari 8 bads to Shri Devanand Gaur and 2 hats to Shri S R Misra." These removals are also corroborated bv the entries Jn the register (Ext R-211) showing the account of bacs of each officer. The witness further states that Shri R. B, Jauhari sent for him on the morning of the 8thi of K 1P62 and Informed him U,".t the DktrM Magistrate had approvedI o! th fa nrocedure and asked htm to inform the tahslldar to ™cb the^"asury at abov-t i in nr •> n m nnri tnke nwfiv fh" baffs which had already been counted. ne

also stated that when t*- ballot r,nwrs were keot i* the m p i e^ "

The case on behalf of Shri N. Dandekar is that the whole of this process start- Ing with a note Ext. R-8 was a faked procedure strrmlv for th* nurrjose of getting an opportunity to remove the bates outside th" t-e^suvy ind to create some confusion so that two baes could be taken out n^ong with ntheri for the purpose of tampering the ballot papers. In support of 4hla contention, it is first pointed out that the Commissioner was tn visit on the 23rd of March, 19fl? and there was no hurry to start cleeninf o' th*> arms at one. Tt could easily be taken up after th<" recount of Gondq Co"-sH*uenrv w^ finished. T have considered this -irirument carefully and I find that it U bs-=ed imon circumstances which have bewme known now after the events. On the flth of March mm'when the re- count of BalramiHir constituency w"! pomg oi. tt w"i not nnssible to ^oroteM when the recount of both the cor"=titni>nc1'¹'= would come to an pnd. In fact, it camp to an end on the 11th of March. 1 tak^n in cleaning fnd vertfleation of the arms-" As events have hanoened it is now known that it took six d av in cipinin^ ^nrf thre" dnvi to vprifv the same but it was not possible on the "th of March. 1902 to Vnnw tb" fxecf tirne likely to be taken *n thpse orjfratlinc. It had become known fhat Shri R. B Jauhari was "*olng on I"wo "™ +he mth of March. 1962 and from the 6th of March, 1902 to the 19th of March. 1962 there were hardly IB days at hand. I am. therefore unable to see that in these S S mS when the arms had not been Heanerf f or n - re than *.year "od1 the vrho> operation was really overdue, the nazir who w

*W for tho nurnos*- o' w n H n- the "V-v* assembly b a^ W bv 8hv\I H B^ lZhnri amnns th" 13 bags which he had kent there on the 1st of March I96J find to remove whichever hip" they wanted to t"Ve nwov. All this nrocess of rf"rHn"7^ioto on the 6tb of March 1R62. and taking It tUmifih the officers con-

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 oJ! 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 whv 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 -clear answer to this question has been given by the learned counsel for the other side by putting another ouestion as to why this application could no1 be made on the 3rd or the 4th of March. 1P62 and thereby enable the conspiring officers to do the s'amo thln^ which was done on the 9th of March, 1962 and such an imaginary argument, to my mind, leads us no where and It deserves no consideration. The next contention of the learned counsel is that the tribunal was hearing the case. No attempt was made to prove that these to his own returning officer and not to the District Magistrate. This argument also overlooks that the District Magistrate was an offleer-in-ehar^e of tho treasury and without his orders nothing could be placed in the treasury. The application was, therefore, rightly addressed to the District Magistrate. Th~ next objection of the learned counsel is that the orders for keeping them In the treasury had been passed on the 7th of March. 1962 and the tahsildar had come on the 8th of March, 1982 to take away certain bags from the treasury. Why did he not at that time also brin^ these eight bass for being kept In the treasury This again Is an imaginary argument without trying to bring in the reason for this conduct- The tahsildar was the proper person to be put In the witness-box and to ask this question. If he was unable to give a good explanation, an urgument could be advanced on It There Is nothing on the record to Indicate that the tahsildar had come to know by the time he came to the treasury according to the orders of the District Magistrate to take away certain bags of ballot papers, thpt he had also to deposit these ballot papers in the treasury. Moreover- other difficulties may have stood In his way. These ballot papers may ha"f> been locked somewhere, keys of which were not available immediately to the tahsildar when he learnt thnt he had to come and pick up some bags from the treasury and he could not at the same time bring these bags for being kept there. There may have been several other good reasons for- his not bringing eight bags to the treasury on the 8th of .March, 1962 and I am unable to make out any adverse inference. The hollowness of this argument is seen clearly when we find from the register (Ext. 2111 that these eli7ht bags havp been deposited on the Bth of March, 1H62 remained lying in the treasury till December when they v/ere re- moved. If these eight bag? which had been brought on th°t date were not the eltfht bai?s of the assembly constituency but contained at l^R.st two bags of Gcnda parliamentary constituency whirb were removed on thp 8th for being tampered with, then onlv six bags should hnve remained in the treasury after the re- count. Moreover, the fact that these eicbt ba?s belonged +o the assembly con- stituency concerned, could h a v\ In fart been ascertained af the time when the tribunal was hearing the case. No attempt was madP to prove that these assembly ballot papers were eontal-ierl 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 nwessary for the District Magistrate and; the sub-divisional Magistrate Gonda to come to the treasure for keening these ba< th" billot, papers were brought. All trnt be his st.n*-+f*1 !•; that at th^> tf-nr +^i->ot sur^lsM" tbqt +he District Mapt^-ile who was <-r>"rluc+In<* the reciim* Wmwlf nnH SbrI A S. M Szc. S(ll)] THE GAZETTE OF INDIA EXTRAORDINARY 431

attached to this fact and I am unable to find any cause whatever to hold that the movement of the bags in and out of the t easury triple lock or of Die 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 4th 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 alated 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 Marchu 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 trip'e 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 whm 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, 19G2 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 ou 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 dav he had also passed orders so for placing the ballot papers In the treasury double lock and the ballot papers had been so deposited in the armoury strong room by 8.50 p.m. On the 2nd of March, 1902, 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 stooped 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 telegram which was received at Gonda is Ext- R. 145 and reads as follows, "E. 3S23/CEO. Chief Election Commissioner India accompanied by the Deputy Chief Electoral Officer reaching Gonda at ten hours on Monday morning March Bth 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 be held up¹' Iti pursuance of this orde^. no action was taken by the returning officer regarding recounting of the ballot papers. The Chief Election Commis- sioner reach" 1 Gonda on the 5th of March, 1Q62 and he heard all the parties conc^rnpd. on the question whether a recount should be ordered. He passed an order the same dav confirming the order of the returning officer that a recount shoull be held and that it should Include a rescrutlny of all the ballot patiers- Thjs order is Ext. R. 144. Thereafter, Jots were drawn in order to decide whe- ther the r?countln£ should start first of 33 Balrampur constituency or of 34 Gonda parliamentary constituency and It so happened that 33 Balrampur con- stituency was to be recounted first and the recount of Balrampur constituency thereupon becan in the presence of the Chief Election Commissioner in the after- noon of the 5th of March, 1962.

thrv could with the ballot par>erg before the Chief Election Commissioner arrived arrl would not have waited on the off chanre of the counting of th's Gonda con- stituency to start a few days after the arrival of the Chief Election Commissioner. As it happened it was merely on the taking of lots that the recount of Gonda constituency came afterwards otherwise 5f lots had decided that Onnda constituency should be recounted first, the recount of this constituency would have started r*n the 5th of March. 1962 itself nnd there would have been no opportunity to anybody to even allege that the baFot papers had been tampered with. This, to mv mind, was not the attitude of the officers who had from the very first dav. 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 fret 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 Retting prejudiced against them-

33 BalramPUr constituency continued to be recounted on the 5th 6th and 7th nf March 1962. The Chief Election Commissioned, however, returned but left th* Deputy Chief Electoral Officer to Ret the recounting done In his presence, and the recounting of 34 Gonda constituency parliamentary started on the 9th of March, 1962 and continued upta the 11th of March, 19H2- On the 9th of March, 19fl2, the entire Mankapur assembly segment and 70 polling stations 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 assemblv segment started which as stated above, had been first ccftmted in the (combined office on the 27th of February. 196'3 in the conditions mentioned above- While this counting was going on. It was dCovered that among the ballot papers which had been rejected at the first count <"-n adcOunt of there being no voting marks or because they had votimj marks on th" blank space, were found to have marks against the bull cage, the symbol of the congress candidate. It was slso found that a large number.of ballot papers had been counted as valid votive for Shrl N. Dandekar whose svmbo¹ -was that of "Star" and those were liable to be rejected on the ground of multiple voting. When a large number of such wrong counting was 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 thp lead which Shrl N. Dandekar had pcnuirod at the first count was dwindling awav like ^his and as Shrl N- Dandekar ¹¹ or) already envisaged that there would be a tampering of ballot papers after the flr.it rount, it was treatM as a positive proof of the fact that the ballot papers had been tampered with and. therefore, this recounting did not indicate a true nofUion of voting. On the other hand, persons who) were watching the recount, oi behalf of Shri Rrnn Ratan Gupta must have felt that there was the reason why Shrl N- Dandekar had got the largest number of votes pf the first courting. According to them, there had been deliberatelv 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 Deputv Chief Electoral Officer as well as the re- turing officer observed the situation, drafted out n 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 directed that such ballot papers he kept separately. This action naturallv must have been taken so that such ballot papers may be easily available a+ any subsequent proceedings that may bo taken by the authorities or by the Chief Election Commissioner- The recount in this way went eta till 8 p-m- when It was stopped for the day as some of the Packets of the constituency were not available pnd they had to be searched out. However nothing turns upon this non-avail ability 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 nacked with the assembly ballot papers and upon the recount it we,e found that the ballot papers contained in these packets whfch had been subsequently recovered, did not contain such ballot papers as hud been yiTonglv counted dur- ing the first count, and therefore, even according to Shri N. Dundekar 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 stonped on the 10th of Mar^h. 1062. Shrl N- "Dandekar sent a telegram to the Chief Election Com- missioner which is attached as Annexure 6 to the election petition. In this tele- gram, Shrl Dandekar writes, " The recount rf this segment disclosed

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

200 blank ballot papers previously rejected because bearing no marking thereby overtaking in the aggregate the margin of 1.57ft votes bv which mvself had won the election on first counting". The recounting aeain started nn the 11th of March, 19f52 at 10 a.m. as usual and the courting went on till lunch. It mav be noted here that at th* time of this recount the Returning Office? Fhri C M- Nigam himself was scrutinising the ballot naperfl which were considered doubtful by the count- ing clerks and the Supervisors. Shri Subramanh-am W P? also sitting bv his sid* And supervising the whole process. Gn the 11th of March. 19(52 a letter w?s honied over to Shri Subramanlyam on behalf "f Shri N Dnndekar requesting that -n thorouTh investigation be made Into the tampering of the ballot papers E^ m the mennwhile the declaration of the result of t hP election bo wJthheM. After th-> refou"t wns over the position of voting with regard to 1he two contest- ing r-r>ndMntf.s ir the Gonda East and Gondn Wpst segments of the parliamentary contit'iDnc'"ti has been reproduced in the election petition as follows: In Gonda Wast, Shrl R.im Ratpn Gupta had originnlW obtained lfi 9P0 valid votes while nt the recount h= obtained 17.025 valid votes- Thus he obtained 125 more valid votes at the recount. Shri N. Dandekar had r e e v ed 13.449 valid votes In that segment at *he first count but at the recount he obtained 11,658 valid votes. Ho thus lost 1,791 votes in this segment alone.

The position In Gonda West was as follows:

Shrl Rfim Ratnn Gunta h id orirnnallv ohtai^nd 11.435 vote 434 T HE GAZETTE OF INDIA EXTRAORDINARY [PART I I-

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 any orders and inspite of the objection made by Shri N. Danctekar declared the result. The only direct evidence on this point is that of Shri Subramanian, Chief Deputy Election Commissioner, who \vas examined as P.W- 3- He stated that on the 10th of March, ] 9(32, certain ballot papers originally held valid in favour of Shri N. Dandckar had to be rejected on the ground that they also contained another faint mark against the symbol at one or more of the other candidates and therefore, amounted to multiple voting, also found certain other ballot papers comparatively a few in number which had originally been rejected over the signature of the ARO- On the ground that there were no marks or marks on the blank area, then 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 8 he states, "I then immediately took the Returning Officer to an adjoining room and had discussions with him. I went to the Co^eci-nr's residence along with Returning Officer at about 5 p.m. CoHector/R-O. himseli rang up the Chief Election Commissioner, New Delhi and told him about these happenings and thereafter I was told by Shri Nigam, RO- that the Chief Election Commissioner wanted to speak to me on the phone. I gave the Chief Election Commissioner a gist of what had hap- pened here and a so told him that we were keeping an 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 should let him have the report when the counting is over. "From this statement of the witness, it is apparent that he had informed the Chief Election Commissioner about the facts that had already happened and had premised to report later. He had also informed him that he was going to direct the Returning Officer not to declare the result 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