Narendra Nath Sen vs Moni Sanyal

Sankar Prasad Mitra, J.—In this petition the election of the Respondent No. 1 to the West Bengal Legislative Assembly from No. 136 Alipore Assembly Constituency has been challenged. The Petitioner was also a contesting candidate and had obtained the next highest votes. The total number of votes declared to have been polled by the Respondent No. 1 was 21,268 and those by the Petitioner was 21,029. There is no charge of corrupt practices in the petition. In para. 7 of the petition the grounds for challenging the election have been set out. The principal grounds appear to be (a) improper reception, refusal or rejection of votes or reception of vote or votes which is or are void or (b) non-compliance with the provisions of the Constitution or the Representation of the People Act 1951, or the rules or orders made thereunder.

On May 22, 1967, in the presence of Learned Counsel for both the parties the following issues arising out of the pleadings herein were settled:

(i) Has there been improper reception, refusal or rejection of votes or reception of vote or votes which is or are void as alleged in para. 7, sub-para, (a) or (b), Sub-clause (v) or (vi) of the petition?

(ii) Has there been non-compliance with the provisions of the Constitution of India or the Representation of the People Act, 1951, or the rules or orders framed thereunder as alleged in para. 7, sub-para, (b), Sub-clauses (i), (ii), (iii), (iv), (vii), (viii), (ix), (x), (xi), (xii), (xvi) and (xvii) of the petition?

(iii) Is the Returning Officer a necessary party to this petition as alleged in para. 2 of the written statement of the Respondent No. 1?

If so, is the petition liable to be dismissed?

(iv) Should the Court make an order for recounting on the facts alleged in the petition?

(v) To what relief, if any, is the Petitioner entitled?

At the hearing of the petition issue No. 4 was not pressed at all. Issues Nos. 1 and 2 were also restricted to certain specific allegations and I need not relate in this judgment all that has been stated in the aforesaid sub-paragraphs and Sub-clauses of para. 7 of the petition. At the appropriate time I shall deal with the Petitioner''s real grievances.

The Petitioner made an application to me for inspection of the valid ballot papers of the Respondent No. 1 and the ballot papers which the Returning Officer had rejected. Both at the hearing of that application and at the hearing of the petition itself the Learned Counsel for the Respondent No. 1 has urged before me that the petition should be dismissed in limine as it does not contain a concise statement of the material facts on which the Petitioner relies as provided in Section 83(1)(a) of the Representation of the People Act, 1951. In para. 7(b)(v) the Petitioner alleges that there was reception of votes (sic) to be in favour of the Respondent No. 1 which were void. In p. para. 7(b)(vi) it is alleged, inter alia, that the Returning Officer (sic) rejected ballot papers without allowing the Petitioner or (sic) counting agents a reasonable opportunity or any opportunity to inspect them. All these allegations have been verified as true to the knowledge of the Petitioner. That is why in the interests of justice (sic) made an order for inspection and the Petitioner, pursuant to my order, has inspected in the presence of the Respondent No. 1 or his agent all the valid ballot papers of the Respondent No. 1 and all the rejected ballot papers. He has placed before me numerous ballot papers which, according to him, should not have been accepted at all. He has also placed before me a large number of rejected ballot papers which, he contends, should have been accepted as his valid papers. The references to all these ballot papers and the Petitioner''s contentions thereon are in the Petitioner''s depositions before this Court. I do not accept the Petitioner''s case with respect to most of the valid ballot papers as also most of the rejected ballot papers; but so far as some of them are concerned, it seems to me, the Petitioner''s complaints are justified. I shall give details of the ballot papers in respect whereof I uphold the Petitioner''s contentions; but before I do that it should be convenient to discuss generally some of the grounds on which the Petitioner challenges the validity of some of the ballot papers of the first Respondent.

The Petitioner contends that about 25 ballot papers of the first Respondent should be rejected on the ground that the voters have put their marks on or near the name of the candidate. Before I come to the relevant legal provisions in our country it would be interest-ling to examine the corresponding English provisions. In England the system of marking by a voter on a ballot paper is that the voter on receiving the ballot paper must forthwith proceed into one of the compartments in the polling station and there secretly mark his paper; he should, with a pencil provided in the compartment, place la cross on the right-hand side of the ballot paper opposite the name of the candidate or candidates for whom he votes, thus X: 3 Halsbury, vol. 14, Article 227, p. 131; Parker''s Election Agent and Returning Officer, 6th ed., p. 513; and Rogers on Elections, vol. 2, 20th ed., pp. 426427.

In spite of these regulations English Courts have held that in every instance the Court is to see whether the voter intended to vote and is generally satisfied of this by the mere fact of his applying for and receiving a ballot paper; the Court then examines the ballot paper to see whether he had by any mark indicated for whom he intended to vote, and wherever such a mark existed within the candidate''s compartment on the ballot paper, the vote should be upheld regardless of the shape of the mark, its position, and whether made by ink, pencil, or indentation. Ballot papers, with the cross on the left side of the candidate''s name but within his compartment, have beer held good. Where, however, the cross is on the name of the candidate, English Courts have held that the ballot paper is bad, it being uncertain whether the intention was to strike out the name of (sic) vote for that candidate. But where a cross was put over the description of the candidate, the vote was allowed. The English principle appears to be that a cross on the name of a candidate will invalidate the vote unless there is some other indication of an intention to vote for him. Where the cross was put on the right outside the space intended for it, but opposite the name of a candidate, it was held a good vote for him. See Rogers on Elections, vol.2 20th ed., pp. 104-106; Parker''s Election Agent and Returning Officer, 6th ed., p. 177; and 3 Halsbury, vol. 14, Article 240, pp. 139-140.

We have to see how far these principles are applicable to India. There is no doubt that here a ballot paper is not valid if a mark is made otherwise than with the instrument supplied for the purpose. Vide Rule 56(2)(b) of the Conduct of Election Rules, 1961.

With regard to the marking of a ballot paper we have to consider Rule 30(2), Rule 39(a) & (b) and Rule 56(2)(d).

Rule 30(2) provides that the names of the candidates shall be arranged on the ballot paper in the same order in which they appear in the list of contesting candidates.

Rule 39(a) & (b) says that the elector on receiving the ballot paper shall forthwith proceed to one of the voting compartments and there make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbol of the candidate for whom he intends to vote.

Rule 56(2)(d) provides that the Returning Officer shall reject a ballot paper if the mark indicating the vote thereon is placed in such a manner as to make it doubtful to which candidate the vote has been given.

Taking all the three Rules together it seems to me that the provision as to the marking of the ballot paper on or near the symbol of the candidate for whom the voter intends to vote is directory and not absolute and, if substantially obeyed, is sufficient. A ballot paper cannot be rejected unless the manner in which the mark has been placed makes it doubtful to which candidate the vote has been given. In other words, if the Returning Officer finds on examining a ballot paper that the intention to vote for a particular candidate is there, the ballot paper should be accepted as valid.

Now, in the ballot papers produced before this Court I find there are three separate horizontal compartments for the three contesting candidates. On the left side of each compartment appears the name of the candidate, and on the right side his symbol. The compartments have been printed in such a manner that a mark with the instrument supplied within a candidate''s compartment on the ballot paper should make the vote a valid vote. The English principle of cross on the name of the candidate invalidating a ballot paper does not apply to our country, because here the voter is not required to put a cross with the pencil supplied, but he has to use an instrument which contains not a cross only but a cross within a circle. The fact that he has made the mark with the instrument supplied on or near the candidate''s name does not, in my view, mean that his intention was not to vote for the candidate concerned. The expression ''on or near the symbol'' in Rule 56(2)(d) should be construed to mean that the mark is nearer the symbol of the candidate than the symbol of any other candidate. In this connection reference may be made to p. 76 of the ''Hand-book for Returning Officers'' issued by the Election Commission of India. Paragraph 17(1) of this Hand-book runs thus:

Reject a ballot paper only--

(i) when there is no mark at all, on the front, or the mark is made by an instrument other than that provided for the purpose; or

(ii) when the mark is in blank area, that is to say, at the back or entirely in the shaded area; or

(iii) when there are marks against two or more candidates; or

(iv) when there is any writing or mark by which the voter can be identified; or

(v) when the ballot paper is mutilated beyond recognition; or

(vi) when the. ballot paper is not genuine.

These instructions to the Returning Officers are, in my view, consistent with, the true meaning of the expression ''on or near the symbol'' especially in view of Rule 56(2)(d) of the Conduct of Election Rules, 1961. A Returning Officer has no power to reject a ballot paper, if the voter''s mark with the instrument supplied is on or near the candidate''s name.

In the premises, I overrule the Petitioner''s contention that about 25 ballot papers of the first Respondent should be rejected on the ground stated above.

The Petitioner has shown to me quite a large number of ballot papers on which the voters'' marks are not with the instrument supplied. I have considered this point in my judgment in Election Petition Case No. 1/67: Bireswar Ghose v. Satya Narain Mitra and Ors. Election Petition Case No. 1/67, judgment unreported. These are the cases of ballot papers on which marks have been put by electors not with the rubber tip fixed on the small wooden block that the electors were provided with; but with different portions of the block itself or by other methods. Now, Rule 39(1)(a) & (b) of the Conduct of Election Rules, 1961, provides that the elector on receiving the ballot paper shall forthwith (a) proceed to one of the voting compartments and (b) there make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbol of the candidate for whom he intends to vote. Some of the instruments which were supplied to the voters of the Alipore constituency have been caused to be produced before me. The instruments are the usual rubber stamps fixed on small wooden blocks. Upon examination of the instruments it is evident that the rubber stamp is to be used for indicating the elector''s choice and a mark by any portion of the wooden block or by any other means cannot be treated as a valid mark in terms of Rule 39(1)(b) of the Conduct of Election Rules, 1961. As I have pointed out in Bireswar Ghose''s case Election Petition Case No. 1/67, judgment unreported that the view that I have taken is further supported by a publication of the Government of West Bengal (Home Department) and another publication by the Election Commission of India. The State Government issued printed ''Instructions for Presiding Officers''. In para. 2(g) (p. 1) of the ''Instructions'' it is stated as follows:

Every elector will record his vote by stamping a mark on the ballot paper by means of a rubber stamp. This mark will be a cross in a circle. The mark is to be made on or near the symbol of the candidate for whom the elector wishes to vote....

The Election Commission of India has also published a ''Hand-book for Returning Officers''. At p. 123 of the Hand-book--

Instructions to electors for marking ballot papers at simultaneous elections to the House of the People and the Legislative Assembly of the State--

have been printed as annEx. VII. One of the instructions is:

The rubber stamp makes this impression X (in a circle).

It is manifest, therefore, that when a mark is put on a ballot paper with any part of the ''instrument'' other than the rubber stamp itself or a mark is put by any other method the ballot paper has to be rejected. This contention of the Petitioner, therefore, must be upheld.

Then, the Petitioner challenges a few ballot papers which, according to him, do not bear any distinguishing marks. To examine this contention we have first to refer to Sub-rule (1) of Rule 38 of the Conduct of Election Rules, 1961. This sub-rule says that every ballot paper shall before issue to an elector be stamped with such distinguishing mark as the Election Commission may direct. In the ''Hand-book for Returning Officers'' issued by the Election Commission [para. 6(a), p. 58] runs thus:

In pursuance of Sub-rule (1) of Rule 38 of the Conduct of Election Rules, 1961, the Election Commission has directed that the Delimitation Order within which the polling station is situated as also the serial number of polling station as given in the list of polling stations for that constituency shall be rubber-, stamped on the reverse of each ballot paper, as for instance, all ballot papers issued in polling station No. 53 situated in the Assembly constituency No. 27 shall be stamped with a rubber-stamp as shown in the margin, whether the election is in respect of the House of the People, or the Legislative Assembly.

In the margin the example given in this sub-paragraph is illustrated thus:

27/53 (within a circle)

Then, Clause (c) of para. 6 of this Hand-book says that if it is not found possible to rubber-stamp for any unavoidable reason, the figures may be written by hand and the circle need not be drawn.

We now come to Rule 56(2)(h) of the Conduct of Election Rules, 1961. It prescribes, inter alia, that the Returning. Officer shall reject a ballot paper if it does not bear the mark which it should have borne under the provisions of Sub-rule (1) of Rule 38, provided that where the Returning Officer is satisfied that this defect has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect.

The position, therefore, is that every ballot paper shall bear on its reverse face the distinguishing mark directed by the Election Commission; if there is no such distinguishing mark on a ballot paper, it shall be rejected by the Returning Officer; but when the Returning Officer is satisfied that the absence of the distinguishing mark is due to any mistake or failure of the presiding officer or the polling officer, he shall accept the ballot paper as valid.

In the instant case, the ballot papers, which the Petitioner has challenged on the ground that they do not bear any distinguishing mark, have been accepted as valid. We have, therefore, to examine the evidence on record to ascertain whether the Returning Officer was satisfied that the defects complained of were due to any mistake or failure on the part of either the presiding officers or the polling officers concerned. Let us first take the evidence of Milan Bandhu Mukherjee who was the Returning Officer of the Alipore Assembly constituency (Q. 1); he says that he was in charge of counting for the Parliamentary constituency and by his side at the same table Sisir Kumar Sen, the Assistant Returning Officer, was given the authority to conduct the counting of votes for the Assembly constituency: Sen sought Mukherjee''s advice wherever necessary (Q. 10). In Qs. 57 and 58, Ex. A/4, which is one of the ballot papers without any distinguishing mark was shown to Mukherjee: Mukherjee relied on p. 78 of the Hand-book which contains, inter alia, the power of the Returning Officer to accept a ballot paper without the distinguishing mark in the circumstances stated above, and adds, "on that consideration it must have been accepted": he does not say how the Returning Officer was satisfied about the mistake or failure of the presiding officer or the polling officer: he merely quotes the relevant provisions. In Q. 175 he admits that what he said earlier in his deposition about Ex. A/4 was merely his opinion. In Q. 177 he frankly admits that he cannot say how satisfaction in this regard is to be derived by the Returning Officer. In Q. 178 when he is further pressed about ''satisfaction'' his answer is:

at the time of counting there was nothing adverse to presume otherwise, because there was the condition that one should not reject the vote. If such ballot papers were put to me I would have accepted them, because there was nothing adverse before me to reject such ballot papers.

His answers to Qs. 179 and 180 are as follows;

(179) How would you know whether it was spurious or not?

There was nothing on record to show. No candidate objected to it.

(180) The Rule says that provided that you are satisfied that the omission had been due to the mistake or failure on the part of the presiding officer or the polling officer you can accept--how the person who is counting has to be satisfied?

First, I was satisfied with the mark. Second, there was no mark on the opposite side with regard to the constituency and booth number. On that I have a definite direction and also the candidates were there. They did not object as there was nothing spurious. I would have come to the proper decision that this should be accepted.

I am constrained to say that the evidence of Milan Bandhu Mukherjee, the Returning Officer, is of no use to me. He could not tell me anything about the process or procedure that the Returning Officer should adopt for deriving the satisfaction referred to in the first proviso to Rule 56(2)(h) of the Conduct of Election Rules, 1961.

Let us now come to the evidence of Sisir Kumar Sen who was the Assistant Returning Officer (Q. 2), and, according to Milan Bandhu Mukherjee, the person in charge of counting the votes for the assembly constituency. He admits in Q. 39 that Ex. A/4 has no distinguishing mark on the back of the ballot paper. In Qs. 45, 46, 50, 51, 53, 54 and 55 he has referred to the Rule regarding the satisfaction of the Returning Officer. He asserts, "We ourselves were satisfied". But he did not say how he or anyone else derived the satisfaction. Question 53 and his answer thereto are as follows:

(53) Court: Quite a few ballot papers have been produced before this Court which do not bear the distinguishing mark of the presiding officer. Learned Counsel wants to know whether you personally, not anybody else, were satisfied with regard to the genuineness of each and every ballot paper containing the aforesaid defect and produced before this Court.

I cannot say that this particular ballot paper was examined by myself but I was present at the time of counting as Assistant Returning Officer. It may be that this particular ballot paper was not checked by me. It might have been checked by the Returning Officer himself and that is why I cannot say that this particular ballot paper was known to me.

In the following two questions he has said that there are no records of the alleged ''satisfaction''. Mr. Roy, Learned Counsel for the Respondent No. 1, submits that obviously there were mistakes in putting the distinguishing numbers. He submits further that having regard to the serial numbers of these ballot papers which fall within the serial numbers of ballot papers received by the presiding officers, there can be no doubt that ballot papers without distinguishing marks are genuine ballot papers.

I am unable to accept these contentions of Mr. Roy inasmuch as both the Returning Officer and the Assistant Returning Officer have deposed before me. They have failed to prove before this Court that they were satisfied that the absence of distinguishing marks On the ballot papers concerned were due to mistakes or failures of presiding or polling officers.

In these premises, I have to accept the Petitioner''s contention and reject the ballot papers which do not bear any distinguishing marks. It may be that the'' serial numbers of these ballot papers are within the serial numbers of ballot papers received by the presiding officers. But on this ground alone these ballot papers cannot be accepted as in that event the provision for putting distinguishing marks in addition to serial numbers would be wholly meaningless. The intention, obviously, is that the genuineness of a ballot paper must be ensured and that is why it is provided that apart from the serial number the ballot paper that is given to a voter must have a distinguishing mark.

The Petitioner has also shown to me several ballot papers on which both the distinguishing mark and the voters'' mark have been put with the same ink. The Petitioner submits that these ballot papers should be rejected. Learned Counsel for the Petitioner relies on Article 324 of the Constitution which provides that the superintendence, direction and control of elections are to be vested in an Election Commission. Learned Counsel then draws my attention to p. 2 of the ''Instructions for Presiding Officers'' published by the Government of West Bengal. Towards the end of para. 5 of these instructions it is stated:

The Returning Officer will supply you pads of two distinct colours one for the purpose of putting the distinguishing mark on the back of the ballot paper and the other for marking of vote by the voter thereon. Enquire from the Returning Officer as to which of these is to be used for putting the distinguishing mark and use the other pad accordingly for making of votes.

In view of these instructions the Petitioner''s counsel contends that ballot papers on which the distinguishing mark and the voters'' mark have been put with ink of the same colour and have been accepted as valid ballot papers of the Respondent No. 1 are, in fact, invalid and, as such, ought to be rejected by this Court.

I am unable to accept this contention. Sub-clauses (a) to (h) of Rule 56(2) of the Conduct of Election Rules, 1961, provide for the circumstances in which a Returning Officer is entitled to reject a ballot paper. These Sub-clauses do not provide that the Returning Officer has the power of rejecting a ballot paper on the ground that the same ink has been used both for the distinguishing mark and the voters'' mark. Rule 38(1) of the Conduct of Election Rules merely says that every ballot paper shall before issue to an elector be stamped with such distinguishing mark as the Election Commission may direct. It does not say that the distinguishing mark must be put with an ink different from the ink that is to be used by the voter. My attention has not also been drawn to any direction of the Election Commission to this effect. To me, it seems, the instructions to the presiding officers, which the Petitioner''s counsel wanted me to consider, were issued only for the sake of convenience. And violation of such instructions cannot invalidate a ballot paper. This contention of the Petitioner is, therefore, overruled.

I shall next deal with a few ballot papers which the Petitioner describes as ''unusual ballot papers''. In these ballot papers there are no printed serial numbers. The serial numbers have been written in hand and in most cases these writings have been initialed by the officer concerned. There is only one ballot paper bearing No. 171100 of Booth No. 91 on which the serial number has been written in hand and the person who has done so has not put his initials at all. Moreover, there is another ballot paper with the identical serial number printed thereon. These two ballot papers have been respectively marked as Exs. A/718 and A/719. Milan Bandhu Mukherjee, the Returning Officer, says that it was a case of oversight (Qs. 44, 45). In cases of the other ballot papers the initials of the officers have been identified before me.

Mr. Roy, Learned Counsel for the Respondent No. 1, has urged that Section 24 of the Representation of the People Act, 1951, provides that it shall be the general duty of the Returning Officer at any election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by this Act and Rules or Orders made thereunder. Mr. Roy on the basis of this provision submits that usually Returning Officers are supplied with a limited number of ballot papers. Now, if the Returning Officer finds that some ballot papers without any serial numbers have been delivered to him, he can in exercise of his powers u/s 24 of the Act of 1951 write out the serial number himself and ballot papers with serial numbers so written out can be given to voters for use.

To test these contentions of Mr. Roy we have to take into consideration some of the provisions of the Conduct of Election Rules and instructions to Returning Officers based on these Rules. Now, Rule 30(1) prescribes that every ballot paper shall be in such form, and the particulars therein shall be in such language or languages as the Election Commission may direct. The relevant direction in this behalf of the Election Commission is in para. 4(a)(ii) at p. 56 of the ''Hand-book for Returning Officers''. It says:

The reverse face of the ballot paper will contain the number of the ballot paper on the top left corner unless it is printed on the front side of the ballot paper. There will be no micro-printing or any other printing on the reverse face.

Then, again, para. 23 at p. 37 of this Hand-book runs thus:

On receipt of the ballot papers you should check all of them to ensure that--

(ii) the serial numbering thereon has been done correctly at the proper place.

In case you find any mistakes, omissions or discrepancies in the ballot papers supplied to you, you should immediately report it to the Chief Electoral Officer for necessary action.

These directions to the Returning Officers read with Rule 30(1) of the Conduct of Election Rules, 1961, lead me to the conclusion that the Returning Officer or his assistant has no power to put down the serial numbers of ballot papers in cases of mistakes or omissions. Their clear duty is to bring this matter to the notice of the Chief Electoral Officer. The ballot papers, therefore, bearing serial numbers written in hand and accepted as valid papers of the Respondent No. 1, have to be rejected by me. In this connection I intend also to refer to Sub-rules (2) and (3) of Rule 38 of the Conduct of Election Rules, 1961, which are as follows:

Rule 38(2): At the time of issuing a ballot paper to an elector, the polling officer shall record the serial number thereof against the entry relating to the elector in the marked copy of the electoral roll.

(3) Save as provided in Sub-rule (2), no person in the polling station shall note down the serial numbers of the ballot papers issued to particular electors.

In my view, the serial number that the polling officer is required to record in the marked copy of the electoral roll is the serial number given to a ballot paper in accordance with the directions of the Election Commission and not otherwise. A ballot paper bearing a serial number written in hand is not, in my opinion, a valid ballot paper.

While we are discussing in general the points that have arisen in this petition regarding the validity or invalidity of ballot papers, it would be convenient to discuss an argument of Mr. Roy on 17 ballot papers of the Petitioner which were found in the bundles of ballot papers which the parties had inspected under orders of this Court. In these 17 ballot papers the voters'' marks are not with the instrument supplied. Mr. Roy contends that, although in this case the first Respondent has not given any notice of recrimination u/s 97 of the Act of 1951, this Court should hold that these 17 ballot papers were wrongly counted in favour of the Petitioner and declare that the total number of votes which the Petitioner is alleged to have polled would be reduced by 17 votes. To support this contention the first Respondent''s counsel relies on the judgment of a Full Bench of the Allahabad High Court in Nathu Ram Vs. R.P. Dikshit and Others, . This was a petition for a writ of certiorari by a returned, candidate for quashing certain orders of an Election Tribunal. The Tribunal accepted a supplementary written statement of the returned candidate on an erroneous belief that the period of 14 days prescribed by the proviso to Section 97 commences on the date on which the evidence is led; its attention was not drawn to the relevant provisions relating to limitations for such notices. Subsequently the Tribunal reviewed its order and held that its previous order was erroneous. The returned candidate by a writ of certiorari challenged the second order of the Tribunal on the ground that it had no power of review. A Full Bench of the Allahabad High Court was of the view that Section 97 did not apply to the supplementary written statement at all and to the right of a returned candidate,, by way of rebuttal, to prove that the result of his election was not materially'' affected by the improper reception etc. of votes mentioned in the lists attached to the petition. The Tribunal, according to the Allahabad High Court, had rightly; allowed the returned candidate to file the supplementary written statement. The second order of the Tribunal was, therefore, set aside. The Allahabad High Court did not decide whether the Tribunal being a quasi-judicial body, could have reviewed its earlier order.

In para. 14 of this judgment at p. 462 the Allahabad High Court quotes the Supreme Court''s observations in Jabar Singh Vs. Genda Lal, and proceeds to say that these observations do not deal with a returned candidate''s right of rebuttal of the case made out prima facie by the election Petitioner as distinct from his right to recriminate. The returned candidate may defend an election petition by rebutting the prima facie case made out by the Petitioner and also by making a counter claim against him; it is the latter that requires a notice of recrimination. A returned candidate is a counter Petitioner only in respect of the counter claim set up by him and not in respect of the case set up by him in rebuttal of the case set up against him in an election petition.

The Supreme Court in Jabar Singh Vs. Genda Lal, has said:

If the returned candidate does not recriminate as required by Section 97 then he cannot make any attack against the alternative claim made by the Petitioner.

According to the Allahabad High Court this sentence means that if the returned candidate does not recriminate, he must fail if he is not able to rebut the case made out prima facie against him by the election Petitioner and not that he is not permitted to rebut the prima facie case. A notice of recrimination is required, only when the returned candidate wants to attack and not when he wants to defend, that is to do something in addition to what he has already done to defend the petition.

The Allahabad High Court says that whether the case set up by a returned candidate is one of recrimination or of mere rebuttal of the case prima facie made out against him depends upon the nature of the grounds taken in the election petition and in the returned candidate''s defence. If the election petition is based on the sole ground that the result of the election had been materially affected by reception or acceptance of void votes or by refusal or rejection of valid votes, the enquiry to be conducted by the Tribunal is whether the result had been materially affected or not by this fact. The election Petitioner applies the ground to certain ballot papers and the returned candidate may apply it to other ballot papers.

Since the result of the election depends upon a scrutiny of all the ballot papers, the enquiry about the ballot papers referred to in the petition and the ballot papers referred to in the written statement is but one enquiry. The enquiry in respect of the ballot papers referred to in the written statement, does not become another or a distinct enquiry merely because there are ballot papers other than those referred to in the petition. A plea by a returned candidate that some of his votes were erroneously rejected or that some void votes were counted in favour of the candidate for whom the seat is claimed is a plea falling outside the scope of Section 97 when the petition itself was based on the ground that the result of the election had been materially affected by erroneous reception or rejection or refusal of ballot papers.

The Allahabad High Court has distinguished Jahar Singh v. Genda Lal''s case Supra by stating that Supra, p. 457, para. 6--

It is not correct that in an election petition based on the ground of Section 100(1)(d)(iii) the Tribunal has suo motu to consider all votes counted in favour of all candidates, and all votes rejected and refused and that before deciding whether the result of the successful candidate''s election was materially affected or not it must see that no valid vote was rejected and no void vote or prohibited vote was received and accepted. The relevant rules show that every ballot paper that is not rejected is presumed to be valid. It was on account of this presumption, according to the Allahabad High Court, that the Supreme Court held in Jabar Singh Vs. Genda Lal, that the Tribunal is not required in a petition based on the ground of Section 100(1)(d)(iii) to scrutinize all the ballot papers. It does not follow, says the Allahabad High Court, that a Tribunal cannot scrutinize certain ballot papers at the instance of the returned candidate if he has not filed a notice of recrimination. The presumption is only in respect of ballot papers which are not rejected and only shifts the onus of proof. It is a rebuttable presumption and operates only if it is not rebutted. It can be rebutted by showing that certain ballot papers ought to have been rejected and were not erroneously rejected. As soon as this is shown the presumption is rebutted and the ballot papers have to be rejected.

I have stated in the foregoing paragraphs all the relevant points raised before, considered and decided by the Allahabad High Court in Nathuram''s case Supra, p. 462, para. 15 inasmuch as the entire argument of Mr. Roy is based on this decision. Learned Counsel for the first Respondent has invited me to follow this judgment and hold that 17 ballot papers of the Petitioner, which were not marked with the instrument supplied, were erroneously accepted by the Returning Officer.

I am afraid, it is difficult to accept the Allahabad High Court''s views in Nathuram''s case Supra. The Full Bench of the Allahabad High Court has placed reliance on an earlier Bench decision of the said High Court in Lakshmi Shankar Yadav v. Kunwar Sripal Singh 22 E.L.R. 47. In Lakshmi Shankar''s case the Allahabad High Court held that it was open to the elected candidate who was the Respondent in an election petition to take up the plea that some of his votes were improperly rejected and some of the votes of the Petitioner were improperly accepted even though he had not filed a separate recrimination petition u/s 97 of the Representation of the People Act or had not included such a plea in the recrimination petition filed by him. Such a plea, according to this judgment, does not fall within, the ambit of Section 97 of the Act.

A similar view was also taken by the Madhya Pradesh High Court in Inayatullah Khan v. Diwan Chand Mahajan 15 E.L.R. 219.

The Supreme Court in Jahar Singh''s case Supra, p. 1207, para. 14 has dealt with both the decisions. Gajendragadkar, J. (as he then was) has said:

It, however, appears that following its own earlier decision in Inayatullah Khan''s case...the High Court was disposed to take the view that the enquiry u/s 101(a) was wider and that, in making its finding under the said provision, it was open to the Tribunal to scrutinise the votes and determine whether, in fact, the Petitioner or some other person received a majority of valid votes. As I have already indicated, this would be the position only if the returned candidate had recriminated, in the absence of recrimination, it would not be open to the Election Tribunal to allow the returned candidate to challenge the validity of votes cast in favour of the Petitioner or any other candidate in whose favour a declaration is claimed by the election petition or to contend that any of his votes were improperly rejected. We ought to add that the view taken by the Madhya Pradesh High Court in the case of Inayatullah Khan...in regard to the scope of enquiry under, Section 101(a) does not correctly represent the true legal position in that behalf. Similarly the view taken by the Allahabad High Court in Lakshmi Shankar Yadav v. Kunwar Sripal Singh...cannot be said to interpret correctly the scope of the enquiry u/s 100 or Section 101....

In these premises, I have to hold that I have no power in the absence of the first Respondent''s notice of recrimination u/s 97, to reject the said 17 ballot papers of the Petitioner on the ground that they were not marked with the instrument supplied.

On the basis of the preliminary observations made in the foregoing paragraphs I give below the particulars of the first Respondent''s ballot papers which are to be rejected. These particulars are as follows:

Sl. No. Booth No. Sl. No. of ballot paper Ex. No. Ground for rejection

(1) (2) (3) (4) (5)

3 101771 A/3 Vote in favour of Narendra Nath Sen

3 101540 A/6 Multiple voting

4 102239 A/9 Multiple voting

6 103966 A/15 Not with instrument supplied

7 104913 A/29 No distinguishing mark

10 106943 A/42 Multiple voting

10 106785 A/48 Multiple voting

11 107824 A/51 Not with instrument supplied

11 107817 A/52 Not with instrument supplied

11 107789 A/59 Not with instrument supplied

11 107803 A/54 Not with instrument supplied

11 107849 A/56 Not with instrument supplied

12 108761 A/83 Multiple voting

13 109435 A/747 Multiple voting

13 109635 A/95 Vote for Narendra Nath Sen

14 110461 A/103 Sl. No. of ballot paper written by A.R.O.

14 110827 A/106 do.

14 110459 A/110 do.

16 111985 A/113 Not with instrument supplied

16 112203 A/114 Not with instrument supplied

16 112217 A/115 Not with instrument supplied

16 112232 A/116 Not with instrument supplied

16 112245 A/117 Not with instrument supplied

16 112212 A/119 Not with instrument supplied

16 112005 A/120 Vote for Narendra Nath Sen

16 112126 A/121 Not with instrument supplied

16 112201 A/122 Not with instrument supplied

16 112210 A/123 Not with instrument supplied

20 115456 A/125 Not with instrument supplied

21 115828 A/133 Multiple voting

24 118758 A/158 Not with instrument supplied

24 118650 A/165 Not with instrument supplied

27 121403 A/171 Not with instrument supplied

28 121921 A/172 Not with instrument supplied

28 122103 A/173 Not with instrument supplied

28 122099 A/174 Not with instrument supplied

28 121990 A/175 Not with instrument supplied

29 123141 A/177 Not with instrument supplied

30 123889 A/191 Multiple voting

30 124044 A/200 No distinguishing mark

34 126958 A/215 Not with instrument supplied

37 128972 A/229 No distinguishing mark

37 129077 A/231 Not with instrument supplied

37 128980 A/233 No distinguishing mark

37 129046 A/234 No distinguishing mark

37 128808 A/235 No distinguishing mark

37 128801 A/236 No distinguishing mark

38 129852 A/240 Not with instrument supplied

38 129749 A/241 Not with instrument supplied

38 129676 A/242 Not with instrument supplied

38 129889 A/244 Not with instrument supplied

38 129758 A/245 Not with instrument supplied (N.B. Also a slight mark with the wooden block on the symbol of the election Petitioner.)

38 129757 A/246 Not with instrument supplied

38 129735 A/247 Not with instrument supplied (N.B. Also mark with the wooden block on the symbol of Narendra Nath Sen.)

38 130027 A/248 Not with instrument supplied

38 130085 A/249 Not with instrument supplied

38 130109 A/250 Not with instrument supplied (N.B. Also mark with the wooden block on the symbol of Awshayabar Singh, the third contesting candidate.)

38 130091 A/252 Not with instrument supplied

38 130167 A/254 Not with instrument supplied

38 130038 A/256 Not with instrument supplied

38 130075 A/259 Not with instrument supplied

38 130168 A/260 Not with instrument supplied (N.B. Also a mark with a portion of the wooden block near the symbol of Awshayabar Singh.)

38 130012 A/261 Not with instrument supplied

38 130094 A/267 Not with instrument supplied

40 131759 A/272 No distinguishing mark

40 131706 A/273 Not with instrument supplied

40 131608 A/274 No distinguishing mark

40 131562 A/276 Not with instrument supplied

40 1.31501 A/280 Not with instrument supplied

40 131406 A/281 Not with instrument supplied

41 132274 A/285 Multiple voting

42 133031 A/289 Not with instrument supplied

42 132955 A/291 Not with instrument supplied

42 132918 A/292 Not with instrument supplied

42 133033 A/294 Not with instrument supplied

42 132968 A/295 Not with instrument supplied

42 133003 A/296 Not with instrument supplied

42 132979 A/297 Not with instrument supplied

42 133024 A/298 Not with instrument supplied

42 133015 A/299 Not with instrument supplied

43 134122 A/300 Not with instrument supplied

43 133869 A/301 Not with instrument supplied

44 134864 A/302 Not with instrument supplied

46 136501 A/308 Vote for Narendra Nath Sen

46 136257 A/309 No distinguishing mark

47 136990 A/311 No distinguishing mark

49 138782 D/71 Mark in blank area

50 139429 A/326 No distinguishing mark

52 140906 A/332 Not with instrument supplied

52 141085 A/337 Multiple voting

52 141174 A/340 Multiple voting

53 141953 A/342 Not with instrument supplied

53 141932 A/345 Not with instrument supplied

54 142773 A/349 Vote for Narendra Nath Sen

54 142326 A/350 Multiple voting

54 142442 A/353 Not with instrument supplied

54 142321 A/355 Nor with instrument supplied

55 143219 A/387 Not with instrument supplied

55 143173 A/358 Not with instrument supplied

55 143093 A/360 Multiple voting

55 143141 A/361 Not with instrument supplied

55 143203 A/362 Not with instrument supplied

55 143269 A/372 Not with instrument supplied

55 143419 A/375 No distinguishing mark

55 143300 A/376 Not with instrument supplied

56 144146 A/384 Multiple voting

56 144206 A/386 Vote for Narendra Nath Sen

56 144288 A/388 Not with instrument supplied

57 144984 A/760 Not with instrument supplied

58 145312 A/405 Multiple voting

58 145666 A/406 Multiple voting

58 145606 A/407 Multiple voting

58 145710 A/410 Multiple voting

58 145644 A/411 Multiple voting

58 145608 A/413 Multiple voting

63 149438 A/459 No distinguishing mark

64 150459 A/481 Mark in blank area

64 149973 A/484 Not with instrument supplied

64 149985 A/497 Not with instrument supplied

65 150815 A/498 Sl. No. of ballot paper written by A.R.O.

65 150816 A/499 do.

65 150908 A/501 Not with instrument supplied

65 151305 A/507 Multiple voting

67 152808 A/523 Vote for Awshayabar Singh

68 154055 A/528 Multiple voting

68 154146 A/533 Not with instrument supplied

68 154040 A/440 Mark in blank area

68 154057 A/541 Not with instrument supplied

70 155414 A/553 Not with instrument supplied

70 155505 A/558 Multiple voting

71 156482 A/566 Vote for Narendra Nath Sen

73 157422 A/581 Multiple voting

73 157564 A/587 No distinguishing mark

75 158803 A/592 Not with instrument supplied

75 158959 A/600 Not with instrument supplied

75 158857 A/603 Not with instrument supplied

75 159005 A/604 Not with instrument supplied

75 159120 A/ 608 Not with instrument supplied

75 159034 A/611 No distinguishing mark

75 159090 A/614 Not with instrument supplied

75 159039 A/615 Not with instrument supplied

75 159018 A/618 Not with instrument supplied

75 159001 A/619 Not with instrument supplied

75 158756 A/620 Not with instrument supplied

75 158964 A/621 Not with instrument supplied

75 159240 A/622 Multiple voting

75 159066 A/623 Not with instrument supplied

75 158818 A/624 Not with instrument supplied on the symbol of Narendra Nath Sen, counted as vote of Moni Sanyal

75 159052 A/626 Not with instrument supplied

75 159176 A/628 Not with instrument supplied

75 159183 A/629 Not with instrument supplied

75 158769 A/630 Not with instrument supplied

75 158820 A/631 Not with instrument supplied

75 159174 A/632 Not with instrument supplied

75 158733 A/633 Not with instrument supplied

75 158969 A/634 Not with instrument supplied

75 159193 A/635 Not with instrument supplied

75 158759 A/636 Not with instrument supplied

76 159604 A/638 Multiple voting

77 160183 A/641 Multiple voting

80 162500 A/648 Multiple voting

82 164357 A/653 Multiple voting

86 167485 A/672 Mark in blank area

87 168237 A/676 Not with instrument supplied

87 168195 A/677 Not with instrument supplied

87 168231 A/679 Not with instrument supplied

87 168099 A/681 Not with instrument supplied

87 168208 A/683 Not with instrument supplied

87 168278 A/684 Not with instrument supplied

87 168014 A/685 Not with instrument supplied

87 168312 A/686 Not with instrument supplied

87 168350 A/687 Not with instrument supplied

87 168395 A/688 Not with instrument supplied

87 168398 A/689 Not with instrument supplied

87 168347 A/690 Not with instrument supplied

87 167980 A/691 Not with instrument supplied

87 168069 A/692 Not with instrument supplied

87 168123 A/693 Not with instrument supplied

87 168281 A/695 Not with instrument supplied

89 169963 A/707 Not with instrument supplied

89 169189 A/709 No distinguishing mark

90 170573 A/712 Not with instrument supplied

91 171100 A/718 Sl. No. of ballot paper written in hand without any initials. There is another ballot paper with the same serial No. marked Ex. A/719

92 171819 A/702 Multiple voting

92 172308 A/729 No distinguishing mark

92 172303 A/736 No distinguishing mark

These 188 votes counted in favour of the first Respondent would have to be deducted from the total number of votes declared to have been obtained by him.

Some of the witnesses including the first Respondent stated before me that there was a tripartite agreement between the Returning Officer, the election Petitioner and the Respondent No. 1 that all ballot papers in respect whereof the intention of the voter was clear should be accepted as valid irrespective of any defects that they might contain. And 17 ballot papers of the Petitioner I have referred to were tendered in support of this tripartite agreement. At the time of his argument, however, Mr. Roy for the Respondent No. 1 did not press this point at all which was firmly denied by the Petitioner.

Therefore, on the basis of my observations aforesaid, the total number of votes obtained by the Respondent No. 1 was 21,268 - 188 = 21,080. I now proceed to give particulars of the Petitioner''s ballot papers which, to my mind, the Returning Officer had erroneously rejected. The particulars are as follows:

Sl. No. Booth No. Sl. No. of ballot paper Ex. No. Ground for acceptance

(1) (2) (3) (4) (5)

3 101771 A/3 Ballot paper of Narendra Nath Sen counted as ballot paper of Moni Sanyal.

4 102312 D/8 Clear mark with instrument Supplied on the symbol of Narendra Nath Sen. Another mark in the blank area between the symbol of Narendra Nath Sen and that of Moni Sanyal, but a very small portion of the circle has touched the compartment meant for Narendra Nath Sen.

5 102732 D/12 Major portion of the cross and the circle is within the shaded area between the symbols of Narendra Nath Sen and

Moni Sanyal, but a portion of the circle is within the area of Narendra Nath Sen. Ballot papers with similar markings have been accepted as valid for Moni Sanyal, e.g., Exs.A/2, A/14 and A/551.

8 105750 D/23 There are two crosses within circles. One of the circles including portions of crosses are within the area of Narendra Nath Sen. The other circle and the cross except very small portion of the circle is within the shaded area between the names and symbols of the two candidates.

8 105659 D/25 Portions of the circle and the cross are within the area of Narendra Nath Sen. Similar ballot papers of Moni Sanyal have been accepted as valid as stated above.

13 109635 A/95 Ballot paper of Narendra Nath Sen counted as ballot paper of Moni Sanyal.

15 111414 D/34 Portions of the circle and the cross are within the area of Narendra Nath Sen. Similar ballot papers of Moni Sanyal have been accepted as valid as stated before.

16 112005 A/120 Ballot paper of Narendra Nath Sen counted as ballot paper of Moni Sanyal.

39 130726 D/60 Portions of the circle and the cross within the area of Narendra Nath Sen. Similar ballot papers of Moni Sanyal have been accepted as valid as stated before.

40 131851 D/63 Portions of the circle and the cross within the area of. Narendra Nath Sen. Similar

ballot papers of Moni Sanyal have been accepted as valid as stated before.

46 136501 A/308 Ballot paper of Narendra Nath Sen counted as ballot paper of Moni Sanyal.

53 141801 D/77 Marked with instrument on the face of the ballot paper on the symbol of Narendra Nath Sen. There is another mark with the instrument supplied, at the back on the symbol of Moni Sanyal. But the latter mark should be ignored being in a blank area.

54 142773 A/349 Ballot paper of Narendra Nath Sen counted as ballot paper of Moni Sanyal.

56 144206 A/386 Ballot paper of Narendra Nath Sen counted as ballot paper of Moni Sanyal.

57 144953 D/85 Portions of the cross and the circle within the area of Narendra Nath Sen. Similar ballot papers of Moni Sanyal have been accepted as valid as aforesaid.

69 154803 D/106 Portion of the circle and the cross within the area of Narendra Nath Sen near his name.

71 156482 A/566 Ballot paper of Narendra paper of Moni Sanyal.

73 157565 D/113 Portions of the circle within the area of Narendra Nath Sen. Similar ballot papers of Moni Sanyal have been accepted as valid as stated before.

76 159861 D/117 do.

81 163424 D/127 do.

81 163621 D/129 do. (vide particular Ex. A/1 of Moni Sanyal)

81 163444 D/130 do.

81 164114 D/133 do.

88 168789 D/140 do.

90 170691 D/145 do.

These 25 votes should be added to the total number of votes which, according to the Returning Officer, the Petitioner had obtained. In other words, the Petitioner has actually received 21,029 + 25 = 21,054 votes.

I have given above the instances of improper acceptance of the first Respondent''s votes and improper rejections of the Petitioner''s votes. The result is that there is still a difference of 26 votes (21,080 - 21,054) in favour of the first Respondent. If the matter had rested here, there was np question of setting aside this election; but my attention has been drawn to some other facts which I now propose to discuss.

The Petitioner has drawn my attention to 72 ballot papers in five several booths which he describes as

ballot papers beyond the account of ballot papers issued to voters as per the presiding officer''s statement in Form No. 16.

In an abbreviated form the Petitioner calls them B.P.B.A., that is, ballot papers beyond account. In Q. 576 the Petitioner was asked as to what happened before the ballot boxes were opened for counting. The Petitioner''s answer was:

14 ballot boxes were brought at a time; they were opened mostly by the class IV staff; our agents were not. allowed to see the labels, seals etc., which should have been inside the ballot boxes, and these ballot papers were not also verified with the return of the presiding officer.

There are similar allegations in para. 7(b)(vii) of the petition.

In order to appreciate this point of the Petitioner it would be necessary to refer to various legal provisions as" well as instructions or directions to Returning Officers, presiding officers and polling officers.

Section 169(1) of the Representation of the People Act, 1951, provides that the Central Government may, after consulting the Election Commission, by notification in the Official Gazette, make Rules for carrying out the purposes of this Act. These Rules have been duly framed and are known as the Conduct of Election Rules, 1961. Then, Article 324(1) of the Constitution, inter alia, says that the conduct of all elections to the Legislature of every State shall be vested tn the Election Commission.

It follows, therefore, that the Conduct of Election Rules, 1961, and the directions or instructions that are issued by the Election Commission to give effect either to the relevant provisions of the Act of 1951 or the Rules made in 1961, must be strictly adhered to for carrying out an election in accordance with law.

Now, Rule 30(1) of the Conduct of Election Rules, 1961, as we have seen above, provides that every ballot paper shall be in such form and the particulars therein shall be in such language or languages as the Election Commission may direct.

The directions of the Election Commission in regard to the Form of the ballot paper can be found, as we have already seen, in the ''Hand-book for Returning Officers'' which the Election Commission of India published in 1966 for the General Election of 1967. At p. 56 of this Hand-Book in para. 4(a)(ii) it is stated that the reverse face of the ballot paper will contain the number of the ballot paper on die top left corner unless it is printed on the front side of the ballot paper. There will be no micro-printing or any other printing on the reverse face.

Then, at p. 37 of this Hand-Book in para. 23 it is stated that on receipt of the ballot papers the Returning Officer should check all of them to ensure that, inter alia, the serial numbering thereon has been done correctly at the proper place. It is stated further that in case, the Returning Officer finds any mistakes, omissions or discrepancies in the ballot papers supplied to him, he should immediately report it to the Chief Electoral Officer for necessary action.

We then come to Rule 38, Sub-rule (2) of this Rule says that at the time of issuing a ballot paper to an elector, the polling officer shall record the serial number thereof against the entry relating to the elector in the marked copy of the electoral roll. Sub-rule (3) of Rule 38 says that no person in the polling station shall note down the serial number of the ballot papers issued to particular electors obviously for preserving the secrecy of voting. Then, under Rule 42(3)(a) a tendered ballot paper shall be the same as the other ballot papers used at the polling except that it shall be serially the last in the bundle of ballot papers issued for use at the polling station.

I find that the Government of West Bengal had issued certain instructions to presiding officers, who (or officers under them) are required to observe the provisions aforesaid. These ''Instruction for Presiding Officers'' were printed in 1966. At p. 3 of the Instructions in para. 12 certain duties of polling officers have been stated For instance, it is said that, as each voter comes in, the first polling officer will locate the voter''s name in his copy of the electoral roll check the name and other particulars with the relevant entry in the roll and call out the page number, the serial number and the name of the voter: he will then underline the entry in full with a pen of a copying pencil and write in the margin against the name the seria number of the Assembly ballot paper to be issued to the voter, anc pass on the ballot paper to the second polling officer.

At p. 10 in para. 33 of these Instructions it is stated:

Take care to see that two or more ballot papers do not stick to each other and as a result more ballot papers than one are issued to a voter. The best way to check this is for the polling officer in charge of ballot papers to take out the ballot paper meant for a voter while the voter''s identity is still being checked. While doing so, that polling officer will compare its serial number with that of the ballot paper which now appears on the top of the bundle. These two ballot papers must be consecutive.

At pp. 15 and 16 of the ''Instructions for Presiding Officers'' in para. 53 there are provisions for ''preparation of the diary'' of the presiding officer. The presiding officer is asked to draw up the proceedings connected with the taking of the poll in the polling station, in the diary to be maintained for the purpose. There is no printed form prescribed for the diary, but it is stated that certain important ''events'' should be mentioned in this diary. Some of these ''events'' have been specified in the twenty-two sub-paragraphs of para. 53. In sub-para. (10) of para. 53 at p. 16 it is stated that the presiding officer''s diary should contain--(a) the number of Assembly ballot papers issued according to the marked copy of the roll, (b) number of ballot papers actually issued at the polling station, (c) number of Parliamentary ballot papers issued according to the marked copy of the electoral roll and (d) number of ballot papers actually issued at the polling station. In sub-para. (17) of para. 53 the presiding officer is asked to preserve a record of the number of votes cast (i) from 8 a.m. to 10 a.m., (ii) from 10 a.m. to 12 noon, (iii) from 12 noon to 2 p.m., (iv) from 2 p.m. to 4 p.m. and so on. In sub-para. (22) of para. 53 at p. 17 the presiding officer is instructed to mention in this diary reports of mistakes and irregularities committed, if any, at the" polling station. Then, we come to para. 51 at p. 13. It is said here that at the end of a day''s poll the first two polling officers should check that the total of electors to whom ballot papers including tendered ballot papers have been issued by them according to the marked copy of the electoral roll tallies with the number of ballot papers actually issued, and they should record it in the presiding officers'' diary with their signatures. The second polling officer should also be required to find out the number of women voters and put it in the records. I am referring to these instructions merely to show that mistakes, if any, in observance of the relevant provisions of Rules 30, 38 and 42 of the Conduct of Election Rules and the directions of the Election Commission in pursuance of these Rules can be easily detected and the presiding officers'' diary ought to show if due to some reason or other ballot papers were not issued to voters serially.

Next we come to Rule 45 of the Conduct of Election Rules, 1961. Sub-rule (1) of this rule prescribes that the presiding officer shall at the close of the poll prepare a ''Ballot Paper Account'' in Form No. 16 and enclose it in a separate cover with the words; ''Ballot Paper Account'' super scribed thereon. In Form No. 16 the presiding officer has to state the serial numbers of (i) ballot papers received, (ii) ballot papers not used, (iii) ballot papers issued to voters, (iv) ballot papers cancelled, if any, and (v) ballot papers used as tendered ballot papers, if any. We have already seen that Rule 42(3)(a) provides that tendered ballot papers should be issued serially from the last in the bundle of ballot papers issued for use. The duty of the presiding officers to fill in Form No. 16 in compliance with the provisions of Rule 45 have been specially mentioned in para. 52 at p. 14 of the ''Instructions for Presiding Officers'' issued by the Government of West Bengal. And Sub-rule (2) of Rule 45 says that the presiding officer shall permit a polling agent who so desires to take a true copy of the entries made in the ''Ballot Paper Account'' and shall attest it as a true copy.

I may also refer to another instruction to presiding officers in para. 29 at p. 8 of the ''Instructions for Presiding Officers'' published by the Government of West Bengal. This instruction has been taken out of a similar publication by the Election Commission of India, which was shown to me at the time of hearing. Paragraph 29 at p. 8 runs thus:

Before commencing the poll you should allow the polling agents to note the first and last of serial numbers of the ballot papers which will be used at the polling station. The polling agents should not, however, be permitted to take notes of the serial number of any ballot paper issued to any voter. Nor should they take any other notes which may enable one to work out these serial numbers as this would destroy the secrecy of the vote. You have the authority to prevent any one from taking any such notes as this amounts to a misconduct as being an attempt to violate the secrecy of the vote. You are competent to seize and forfeit any document on which a polling agent may have taken any such note. If any polling agent persists in taking such notes in spite of warnings, you should not allow him to remain in the polling station as a penalty for his misconduct. Also show to the polling agent and others present at the polling station the copy or copies of electoral roll intended to be used as the marked copy or copies that the same do not contain any entries other than those made in pursuance of Clause (b) of Sub-rule (2) of Rule 20 and Sub-rule (2) of Rule 23.

To complete the picture I ought to mention that Clause (b) of Sub-rule (2) of Rule 20 refers to a polling officer, presiding officer or other public servant who is on election duty and wants to exercise his votes; an ''Election Duty Certificate'' is issued to such a person, and in the marked copy of the electoral roll the letters ''EDC are to be written. Rule 23 relates to issue of postal ballot papers. In these cases also the serial numbers of postal ballot papers have to be recorded against the voter''s name in the marked copy of the electoral roll.

I have discussed in the foregoing paragraphs the relevant provisions of Rules 30, 38, 42 and 45 of the Conduct of Election Rules and the relevant directions of instructions to Returning Officers and presiding officers just to show the importance that is attached to the ''number'' of a ballot paper. The authorities responsible for conducting elections have warned the Returning Officers that on receipt of ballot papers they should satisfy themselves that the serial numbering thereon has been correctly done at the proper place and they have been further instructed to report to the Chief Electoral Officer in cases of irregularities. Elaborate instructions have also been given to presiding officers and polling officers as to how they should comply with the requirements of Sub-rule (2) of Rule 38 of the Conduct of Election Rules. The manner in which presiding officers and polling officers are expected to proceed, should eliminate the possibilities of a break in serial numbers while issuing ballot papers to voters. If in spite of all precautions the serial numbers are broken, there ought to be records of such incidents in the presiding officers'' diary. The presiding officers are also asked to maintain properly the ''Ballot Paper Account'' according to Form No. 16 in compliance with Rule 45 of the Conduct of Election Rules. It appears that the observance of these Rules and the aforesaid directions or instructions is essential to ensure the purity of elections generally and the sanctity of ballot papers in particular.

Mr. Roy, Learned Counsel for the Respondent No. 1, has contended before me that there is no Rule making it obligatory on the part of the presiding officers to issue ballot papers to the voters at a polling station serially. Mr. Roy says that if a presiding officer chose to issue ballot papers without paying any attention to the serial numbers thereon, he would not contravene any of the provisions of the Act or the Rules made thereunder.

I am unable to accept this argument of the first Respondent''s counsel. To my mind, the necessary implication of the direction of the Election Commission pursuant to Rule 30(1) of the Conduct of Election Rules, 1961, that each ballot paper must contain a number; its further direction to the Returning Officers to ensure on receipt of the ballot papers that "the serial numbering thereon has been done correctly at the proper place"; and the references to serial numbers of ballot papers in the various Rules I have referred to as well as in Form No. 16 is that, ballot papers are to be used or issued at the polling stations serially except that a tendered ballot paper under Rule 42(3)(a) shall be serially the last in the bundle of ballot papers issued for use at the said station. If Mr. Roy''s contentions were correct, the presiding officer would be at liberty to issue ballot papers from the last serial number, and when he does that, it would be impossible for him to comply with the requirements of Rule 42(3)(a). It is evident, having regard to the size and thickness of ballot papers, that unless they are issued serially there is always the possibility of a voter getting more than one ballot paper. The presiding officers who have been summoned as witnesses in this petition have also admitted that the correct procedure is to issue ballot papers according to serial numbers.

Bearing these principles in mind I have now to discuss certain matters brought to my notice in this petition.

In several booths in this constituency, I find that the presiding officers have not prepared the ''Ballot Paper Accounts'' in accordance with Form No. 16. I shall discuss what has happened in the instant case booth by booth. In Booth No. 56 the presiding officer has not filled in From No. 16 at all, but it is possible to trace the serial number of the first ballot paper which the presiding officer received from a register (Ex. 11) containing against the relevant entry the signature of the presiding officer. The total number of ballot papers found in the ballot box, at the time of counting, has been recorded in Pt. II of Form No. 16. Now, if we add the total number of ballot papers found in the ballot box to the first serial number mentioned above all the ballot papers, which the parties had inspected for this booth, would come within the range of ballot papers which should have been issued. The same remarks apply to Booth No. 65. That is why the Petitioner''s counsel at the time of argument did not urge that any of the ballot papers in these two booths was outside the ''Ballot Paper Accounts''. His arguments were confined to Booths Nos. 12, 57, 60, 63 and 92, and he has challenged altogether 72 ballot papers which he described as ''B.P.B.A.''

I would first take up Booth No. 57. In this booth the presiding officer in From No. 16 has mentioned the serial number of ballot papers--(i) received, (ii) not used, (iii) issued to voters, (iv) used as tendered ballot papers. According to this presiding officer the serial numbers of ballot papers not used are Nos. 145068 to 145228; but in the ballot box ballot papers bearing the following serial numbers with voters'' marks on or near the symbol of the returned candidate were found:

145099, 145094, 145088, 145096, 145089, 145087, 145082 and 145098.

These eight ballot papers, the Petitioner submits, should be rejected on the ground that they are ''beyond account''.

I have no doubt that one of them, namely, ballot paper No. 145089 has to be rejected straightway on the ground that the voter''s mark is at the back of the ballot paper and it can be described as a ballot paper with the mark in the blank area. This rejection reduces the first Respondent''s majority to 25 votes only. Regarding the other ballot papers we have to examine the depositions of Arup Kumar Sengupta who was the presiding officer of Booth No. 57. This witness has said that when he went to receive the ballot papers he was given several bunches of ballot papers tied in rubber garters each counting 100 ballot papers: he then came to another room and took about two hours to check them up and found that they were arranged serially (Qs. 54 to 56). Question 57 and his answer thereto is as follows:

When you issued the ballot papers to voters, did you issue serially or did you issue at random?

We had all along tried to issue ballot papers serially. Each ballot paper had to be stamped on the back. In that process it might be that the serial numbers in one or two cases have been broken. We tried to maintain the serial number all right but might not have succeeded in cases of haste.

In Q. 65 he was asked about the materials on which he relied to fill in From No. 16. His answer is:

Before we started the election I had checked up the first serial number of the ballot papers received by me as also the last. I had also counted the ballot papers that were received by me and found that they were 650 and, thereafter, we started the poll. Then when the election was continuing I was handing over to my polling officers bunches of ballot papers containing 100 each. When one bunch was exhausted the other bunch was given to them by me, and in this way when the voting came to an end I asked my polling officer as to how many ballot papers were remaining unused. Then I counted also the marked copy of the electoral roll and found out as to how many votes had actually been polled in that booth. I added the total number in col. 2 and the total number in col. 3, viz., in the column ''ballot papers not used'' and in the column ''ballot papers issued to voters''. When added up, these tallied with the total number of ballot papers received by me. When the total in col. 2 added up with the total in col. 3 tallied with the total in col. 1. (ballot papers received) I asked my polling officers to see the first serial number of the ballot papers used and unused and the last serial numbers thereof and hurriedly took down those two serial numbers. I could not check up the serial numbers then and, if there was a mistake, the same might have crept in.

He gave similar answers in Qs. 40 to 42 also. In Q. 33 he was specifically asked about the serial numbers in col. 2 (ballot papers not used). His answer is:

I have just checked up the serial numbers given in col. 2 and found that these serial numbers were correct. The next question and his answer thereto are interesting. These are as follows:

(34) How do you explain that these ballot papers were in fact used?.

We have issued ballot papers from the total number of ballot papers received by us. It may be that the serial numbers stated here may be wrong. It may be that we failed to maintain properly the serial numbers.

In Q. 58 he says:

I made over the ballot papers to polling officers Nos. 1 and 2 who were in charge of Parliamentary and Assembly constituencies respectively. It might be that they committed mistakes with regard to serial numbers. It might be that the mistakes committed by them could be in respect of 15 or 20 ballot papers.

Then in Q. 60 after his attention had already been drawn to the ballot papers beyond account he says:

I find now that the putting down of serial numbers in col. 2 may be a mistake.

In Q. 61 he admits that if the ballot papers beyond account were not shown to him he would have thought that his recordings in Form No. 16 were correct.

The effect of Arup Kumar Sengupta''s evidence is that he has failed to explain adequately the discrepancies between ''Ballot Paper Accounts'' prepared by him at the end of polling and the ballot papers actually found in the ballot box. He has only suggested to me certain possibilities He did not rely on any records to show that in his booth ballot papers were not serially issued.

Let me now come to Booth No. 12. Here, the presiding officer in Form No. 16 has recorded the serial numbers of ballot papers--(a) received, (b) not used, (c) issued to voters and (d) used as tendered ballot paper. The presiding officer has also made an endorsement on the right-hand side that "serial Nos. of ballot papers issued were not correct". The Petitioner has shown to me 16 ballot papers of this booth which, if Form No. 16 were correctly filled in by the presiding officer, were not issued to voters at all, but were found in the ballot box. These facts naturally raise doubts as to how these ballot papers came into the ballot box. Ordinarily if the relevant rules and instructions were adhered to what has happened would have been an impossibility.

Narendra Kishore Dhar, the presiding officer of Booth No. 12, was examined before me. He said that he was given ballot papers from serial Nos. 108521 to 109400 (Q. 4) He was given the ballot papers in bundles of 100 each and he put his signature in the register (Ex. 11). In each bundle there were about 100 ballot papers: he did not remember how the ballot papers were tied: he was given about eight bundles and ''some loose bundles'': the ballot papers were issued to voters by the polling officer: he first issued two of the bundles, one for the Assembly and one for the Parliament starting from the first serial number (Qs. 5 to 14)

I now intend to quote Narendra Kishore''s depositions in Qs. 15 to 22 These are as follows:

(15) Suppose you had ballot papers numbered 1 to 800, you would first of all give 1 to 100; then you will give 101 to 200, and then you would give 201 to 300--isn''t that so?

Yes.

(16) You would not give 1 to 100 and then 300 to 400? Generally we use first from the first serial number.

(17) You would give to the polling officer who was distributing the ballot papers two bundles at a time--one bundle for the Parliamentary constituency and one bundle for the Assembly constituency?

Yes.

(18) When this one bundle gets exhausted he will ask for another bundle from you?

Yes.

(19) And you will give him the next bundle to be disposed of amongst the voters?

Yes.

(20) While giving these bundles were you strictly following the serial numbers?

Yes.

(21) Would you give him 1 to 100 and then 201 to 300?

No.

(22) You would give him 1 to 100, then 101 to 200, then 201 to 300, and then 301 to 400--is that correct?

Yes.

According to Form No. 16 the serial numbers of ballot papers received in Booth No. 12 were 108521 to 109400. The total number being 880. The presiding officer has recorded that the serial numbers of ballot papers not used were 108959 to 109399. The total of such ballot papers, if the serial numbers have been correctly taken down, would be 441; but the presiding officer puts it as 341. According to him the serial numbers of ballot papers issued to voters were 108521 to 108958. The total is 438; but the figure mentioned in Form No. 16 is 538. It is also mentioned that one ballot paper was used as a tendered ballot paper and the serial number thereof quite correctly [Rule 42(3)(a)] was 109400.

The point is that this presiding officer has said that he was issuing the ballot papers serially. Now, supposing he had made mistakes in writing out the serial numbers of ballot papers (a) issued to voters and (b) not used, it is common case that altogether 538 ballot papers were found in the ballot box of Booth No. 12. On this basis if we proceed to correct the serial numbers of ballot papers--(a) issued to voters and (b) not used, the following figures would be arrived at:

(1) Serial numbers of ballot papers issued to voters 108521 to 109058 = 538.

(2) Serial numbers of ballot papers not used 109059 to 100399 = 341.

But the 16 ballot papers in this booth which the Petitioner has called ''B.P.B.A.'' bear serial numbers beyond 109058. Their numbers are.

(1) 109079, (2) 109098, (3) 109075, (4) 109088, (5) 109081, (6) 109074, (7) 109067, (8) 109078, (9) 109090, (10) 109076, (11) 109092, (12) 109065, (13) 109073, (14) 109070, (15) 109082, (16) 109089.

The question is how did these 16 ballot papers come into the ballot box? Narendra Kishore in Qs. 55 to 63 speaks of the mistakes he had made in writing out the serial numbers as well as the total numbers. In Qs. 65 and 66 he says that since the 16 ballot papers aforesaid were within the serial numbers 108521 to 109400 they were actually issued to voters. In Qs. 69 and 70 he reverts to his previous answer that ballot papers should have been issued seri ally. In Q. 63 he has said:

I suppose there must be some mistake in the serial number in respect of ballot papers not used.

In Q. 74 he has said:

I started using or issuing ballot papers from serial No. 108521 as stated in col. 3 upto No. 109058 this would account for the total number of ballot papers issued to be 538. 1 think that the serial number stated in col. 2 has been broken for some reason or other and that would be a bunch of ballot papers numbering 100 and these ballot papers were issued to voters and used by them. Had that not been so, the total number of ballot papers issued to voters could not have been 538.

In answer to Q. 76 Narendra Kishore''s evidence is:

I say that the serial number taken in col. 2 against ''ballot papers not used'' is not quite right. The serial numbers are wrong. It might have been broken. I further say that if any ballot papers could be produced and shown to me beyond the serial No. 109400 then I should say that such ballot papers were not issued to nor used by the voters.

In Q. 80 Narendra Kishore wanted to explain his endorsement on Form No. 16 that "serial numbers of the ballot papers issued were not correct". He refers to this endorsement and says:

This is my endorsement. When the serial number stated in col. 2 was broken I was unable to make it tally, and so I made this endorsement. But actually the ballot papers issued by me were 538 and I had 341 ballot papers in hand and the ballot papers received by me according to the marked copy of the electoral roll were 880. These figures tally.

Narendra Kishore was again asked about this endorsement in Qs. 93 to 97. These questions and their answers are as follows:

(93) So far as item No. 2 (ballot papers not used) in this Form No. 16 of Booth No. 12 is concerned, is it correct according to you?

There is a mistake in serial number.

(94) If your statement is correct, you said you made endorsement, is there any endorsement?

Yes.

(95) You are positive about it?

I have already said that when the serial number in col. 2 was not tallying I had to make that endorsement. The total numbers were tallying.

(96) Look at the endorsement of yours--read it out....

Serial numbers of the ballot papers issued were not correct.

(97) You stick to that statement?

No, I do not stick to this endorsement.

The sum and substance of Narendra Kishore''s evidence, to my mind, is that he was not definite that serial numbers were broken while issuing ballot papers to voters. And the only reason why he said that the 16 impugned ballot papers were actually issued to voters was that they were within the serial numbers of ballot papers received by him. He did not rely on his diary or any other document to show that the serial numbers were, in fact, broken.

I now come to Booth No. 60. In this booth there are two ballot papers which, according to the Petitioner, were beyond account. In this case the presiding officer has stated in Form No. 16 the serial numbers of ballot papers received by him. These serial numbers are 146721 to 147460, the total number being 740. He does not give the serial numbers either of ballot papers not used or of ballot papers issued to voters. He merely says that 164 ballot papers were not used and 576 ballot papers were issued to voters. The total number of ballot papers found in the ballot box was 577. Hemanta Kumar Roy was the presiding officer of this booth and has been examined before me. I give below his depositions in Qs. 87 to 97:

(87) After you brought those ballot papers to the polling station how did you keep them?

I put them on the table before me.

(88) That was serially arranged at that time?

So far as my recollection goes they were.

(89) That means that the ballot paper in the bundle which contains the number 146721 was at the top?

Yes.

(90) And you started giving to your officers ballot papers in bundles from the top?

I think so.

(91) Because that is the usual procedure? Yes.

(92) And there was no unusual procedure followed under your supervision, because you were the presiding officer?

Yes.

(93) You followed your duties strictly and carried out your duties?

I did so, otherwise chaos would have started.

(94) You are saying that because these ballot papers shown to you in your examination-in-chief were found in the ballot box your assumption is that they are genuine as the numbers fall, according to you, within the numbers, of ballot papers received?

I call these ballot papers genuine on two counts first, the serial numbers fall within the serial numbers of ballot paper received by me and secondly, these two ballot papers bear the distinguishing marks.

(95) Therefore, if a ballot papers is given to you and the serial number falls within the serial numbers of ballot papers received by you, you will assume that to be genuine if found in the ballot box?

Yes, I will come to the conclusion only if those ballot papers were found inside the ballot box?

(96) You have no personal knowledge whether these two ballot papers were actually found inside the ballot box?

No, I have no personal knowledge.

(97) I put it to you that these two ballot papers were not authorised for issue to the voters and not in fact issued to the voters?

That cannot be, because a voter would not be able to obtain any ballot paper unless given by my polling officers and if my polling officer unnecessarily gives away a ballot paper then such an action is liable to be challenged by the agents of both the parties.

The point is that if in this polling booth ballot papers were issued to voters serially, two ballot papers beyond account could not have been found in the ballot box. The presiding officer''s evidence is that the ballot papers were issued in his booth serially. He says that if a polling officer gave an extra ballot paper to any voter, his action would have been challenged by the agents of both the parties. I agree that the agents might have protested, if they saw the polling officer delivering more than one ballot paper to a particular voter; but if it escaped their notice, there would be no occasion to point it out. From the presiding officer''s evidence my doubts about these two ballot paper''s have not been resolved.

I now come to Booth No. 92. In this booth it appears from Form No. 16 that 870 ballot papers bearing serial Nos. 171811 to 172680 were received by the presiding officer. The serial numbers of ballot papers (a) not used, (b) issued to voters and (c) cancelled, have not been stated. According to this ''Ballot Paper Account'' 593 ballot papers were altogether issued. Of these 593 ballot papers one was cancelled. In the ballot box 592 ballot papers were found. The election Petitioner tells me that by adding 593 to the serial number of the first ballot paper which the presiding officer had received, the Petitioner has discovered 20 ballot papers beyond account. The presiding officer of this booth was Sukumar Ghosh whose evidence I would now discuss.

Sukumar has said that ballot papers were supplied to him In bundles of about 100 ballot papers each (Q. 11). He does not exactly remember whether these ballot papers were arranged serially; he says, ''probably they were'' (Q. 12). In Q. 13 he says:

We tried to issue ballot papers serially but now and then the serial number might have been broken.

In Q. 14 he tells the Court:

I have no recollection as to that, but I believe that such breaking of the serial numbers might have taken place in an hour of unusual rush.

In Q. 15 his evidence is:

My polling officers were issuing ballot papers to the voters. I could not definitely say how the serial numbers were broken. But my conjecture is that in one or two cases it might so happen that the bundles had slipped out of the hand of the polling officer issuing the ballot papers and he in his attempt at gathering the bundles and issuing the ballot papers to voters again might have broken the serial numbers.

All the questions mentioned above were put to Sukumar in examination-in-chief. His answers, it is needless to observe, do not lead me to any positive conclusions. In his cross-examination in answer to Q. 91 he has said:

I gave to my polling officers ballot papers according to serial numbers from the very beginning.

I would now quote Qs. 92 to 94 and Sukumar''s answers thereto. These are as follows:

(92) That is you started from 171811--that is, the first number?

Yes, if that would be the serial number then I started voting with that serial number and ballot papers onwards serially.

(93) You can look at the form--that is the number there? Yes.

(94) Whenever ballot papers were required by the polling officers you handed over to them the ballot papers?

That is so.

Sukumar Ghosh''s evidence also is as unsatisfactory as the evidence of the other presiding officers I have already referred to. Nobody could say to me how, when and in what manner the serial numbers were broken and whether any records were kept of such occurrences contemporaneously.

I have discussed above the cases of 46 ballot papers in Booths Nos. 12, 57, 60 and 92 which would not have been found in the ballot boxes if the presiding officers and polling officers had followed the admittedly usual procedure. I have also said that one of such ballot papers being ballot paper No. 145089 in Booth No. 57 has to be rejected in any event as the mark is in a blank-area. In other words, from the evidence on record discussed so far we find that ort the one hand the first Respondent has a majority of 25 votes, but on the other hand, there are at least 45 ballot papers which, if issued to voters at all, were issued by transgressing the necessary implications of the Election Commission''s directions regarding the serial numbers of ballot papers.

I would now go to Booth No. 63. I am treating this booth separately because the Returning Officer of this booth was not examined before me but on commission. In this booth, it appears from Form No. 16, that the presiding officer received 820 ballot papers bearing serial Nos. 149111 to 149930. There are no serial numbers in Form No. 16 of ballot papers--(i) not used, (ii) issued to voters, (iii) cancelled and (iv) used as tendered ballot papers. In Pt. II it is stated that in the ballot box 598 ballot papers were found. After adding 598 to the first serial number, the Petitioner tells me, 26 ballot papers beyond account would be found. The presiding officer in this case was Nihar Ranjan Shome who, as I had said, was examined on commission. This witness says that he counted the ballot papers which he received from the Returning Officer or the Assistant Returning Officer: not only he, but his polling officers also counted them: he was satisfied that the serial numbers were correct. Before starting the poll he entered these serial numbers in Form No. 16; he then kept the ballot papers on his table. They were in bundles of 100 each tied in rubber garters: he put the distinguishing marks himself on about 200 ballot papers: he also put the distinguishing marks ''on certain other ballot papers being assisted by'' his ''other polling officers'': he started issuing ballot papers from the first serial number, that is, serial No. 149111 (Qs. 37 to 45). In Q. 46 this witness was asked as to whether the usual practice was followed: his answer is:

Yes. But subsequently there was some trouble. Ballot papers were issued by myself and another polling officer and in that process the serial number was broken,

but in the very next question (Q. 47) he says:

I was not actually issuing the ballot papers, I was putting the distinguishing marks on the ballot papers and in this I was assisted by the fourth polling officer to a certain extent; but I was making the ballot papers over to the first polling officer,

In Q. 48 he has said:

At the beginning ballot papers were being issued according to serial numbers; but later on we found that they had not been so issued throughout. We found that in certain cases the numbers which were before had been issued later and the numbers which were after had been issued before.

It is interesting to compare these answers of Nihar Ranjan with those he had given to Qs. 37 to 45. In Q. 54 he was asked:

Did you think that it was your official duty to fill up the form (Form No. 16) about ballot papers not used if the serial numbers had been broken or even if it had not been so?

His answer is:

Even if I knew that, there was hardly any time left to do so.

I do not think a responsible presiding officer can make such a statement particularly if he knew at the time of polling that serial numbers of ballot papers had, in fact, been broken. He has himself stated that the polling was over at 4-30 p.m. (Q. 50) and 5 persons who were there to assist him stayed upto 7 p.m. (Qs. 34 & 35). Be that as it may, Nihar Ranjan is the only presiding officer (who was examined on commission after all other presiding officers had deposed in Court) who has made a positive case that in his booth ballot papers were not issued to voters serially throughout the day. All other presiding officers have merely spoken of their conjectures. We have, therefore, to test Nihar Ranjan''s evidence on this point rather carefully. In Qs. 51 and 52 he has said that the serial numbers were broken at about 12-30 or 1 p.m. I find while answering Q. 72, however, he has forgotten what he stated in answer to Qs. 51 and 52.

Question No. 72 is:

How much time would you have taken to put in the serial number of 598 ballot papers?

The answer is:

If the ballot papers were issued serially, it would not have taken a long time, but as I have already stated the ballot papers were not issued serially towards the close and for that a Long time Was necessary.

If the polling went on till 4-30 p.m. it cannot be said that either 12-30 p.m. or 1 p.m. was ''towards the close'' of the poll.

Then, as I have already observed, his case in Q. 47 is that he was not actually issuing the ballot papers. He was putting the distinguishing marks on the ballot papers assisted by the fourth polling officer to a certain extent and he was making the ballot papers over to the first polling officer. In Q. 49 he says that he could not tell whether the breaking of serial numbers was caused by him on by the fourth polling officer who had assisted him. I cannot appreciate this part of his evidence. I do not see how the fourth polling officer could be responsible for breaking the serial numbers. The duty of the fourth polling officer has been described in para. 12 (iv) at p. 4 of the ''Instructions for Presiding Officers'' issued by the Government of West Bengal. It says:

The fourth polling officer will take both the ballot papers from the voter, hand over the Assembly ballot paper and an inked rubber stamp to him explaining how to record his vote, and pass on the Parliamentary ballot paper to the fifth polling officer who will be sitting opposite to him at the same table....

If these are the duties of the fourth polling officer, I do not see how he could be a party to the breaking of serial numbers at the time ballot papers were originally issued for use.

This witness in Q. 95 has said that he had not enough time at his disposal to check the marked copy of the electoral roll and the numbers of ballot papers issued and unused in order to fill in the serial numbers in cols. 2, 3 and 4 of Form No. 16. In Q. 109 also he more or less repeats this answer; but these answers are somewhat contrary to what he has stated in answering Qs. 79 to 84 and Q. 108. I give below these questions and answers:

(79) From the marked copy of the electoral roll you could have easily found out the numbers of the ballot papers not used?

In the marked copy of the electoral roll we made entries in respect of the last three digits of the ballot papers issued to voters by the side of the name of such voter.

(80) You always consulted the marked copy of the electoral roll when you made the first count and also when you made the checking?

What you mean by checking?

(81) Was there any checking after you made the first count?

There might be checking.

(82) You are not sure?

I have no recollection.

(83) On those two occasions you had consulted the serial numbers of ballot papers in the marked copy of the electoral roll?

Yes.

(84) Did you first count the unused ballot papers?

First we counted the marked copy of the electoral roll and then the unused ballot papers.

(108) When did you check up the marked copy of electoral roll?

I checked it after the voting was over when I counted the ballot papers.

The point is that if he knew that the ballot papers were not serially issued in his booth and if he had checked the marked copy of the electoral roll, it was natural to expect that he would have taken care in filling up cols. 2, 3 and 4 of Form No. 16 especially when he had more than two hours and a half at his disposal with five persons to assist him to wind up his affairs.

Lastly, I wish to deal with Nihar Ranjan''s answers to Qs. 87, 88 and 89. These are as follows:

(87) If a ballot paper bears a serial number within the serial numbers of ''ballot papers received'' by you and also the distinguishing mark, you will presume the genuineness of that?

Yes. I should say that the said ballot paper was used in my booth. There is one more thing--the serial number of such a ballot paper must be on the marked copy of the electoral roll which was with me.

(88) You definitely remember that?

How can I say that after the lapse of a year? But I say that the ballot papers issued by me must be on the marked copy of the electoral roll.

(89) And also the serial numbers would appear?

Yes. The last three digits of serial numbers.

The comments that I have to make on this part of the evidence of Nihar Ranjan Shome are more than one. Firstly, Learned Counsel for the Respondent No. 1 did not put to the election Petitioner in cross-examination that the serial numbers or any portions thereof of the alleged ballot papers beyond account would appear from the marked copy of the electoral roll. P.B. Mukharji, J. (sitting with Bose, J., as he then was) observed in A.E.G. Carapiet Vs. A.Y. Derderian, :

The law is clear on the subject. Whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that it is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses.

These observations of their Lordships of the Division Bench do not require further elaboration.

Secondly, the presiding officer first said that he did not definitely remember after the lapse of a year whether the relevant entries were made in the marked copy of the electoral roll. And then he said that these entries ''must be'' there.

Thirdly, I do not know what Nihar Ranjan means by "the marked copy of the electoral roll which was with me". As far as I can make out from para. 12(i) at p. 3 of the ''Instructions for Presiding Officers'' the marked copy of the electoral roll for the Assembly remains with the first polling officer and it is his duty to write out the serial numbers of ballot papers therein. The first polling officer was not called as a witness.

In any event, the marked copy of the electoral roll cannot be inspected at this stage by any of the parties. The CPC and the Indian Evidence Act apply to these proceedings, subject to the provisions of the Representation of the People Act, 1951 (vide Section 87). And one of the most important provisions of the Act of 1951 is that secrecy of voting must not be infringed (vide Section 94).

The position, therefore, is that from Nihar Ranjan Shome''s evidence it is difficult for me to come to the definite conclusion that in his booth ballot papers were not issued to voters serially and, as such, 26 ballot papers which should not have been ordinarily issued, have been found in the ballot box. Nihar Ranjan said that he knew that serial numbers were broken, but as to the time of the occurrence he has made inconsistent statements. Secondly, if he had known of these irregularities as a man of ordinary prudence, he should have taken special care to fill in Form No. 16 properly. At any rate the fact that the serial numbers were broken, should have been noted in the presiding officer''s diary; but Nihar Ranjan did not in his evidence refer to this diary at all.

We are, therefore, faced with the situation that the first Respondent has a majority of 25 votes over the election Petitioner. (When I say 25 votes, I include ballot paper No. 145089 in booth No. 57 which I have rejected on the ground that the mark is on the back of the ballot paper: this ballot paper has also been challenged on the ground that it is a ballot paper beyond account.) As against the first Respondent''s majority of 25 votes, we have 71 ballot papers (excluding ballot paper No. 145089 of booth. No. 57) which, if the admitted procedure of issue of ballot papers according to serial numbers had been followed could not have been used by voters at all. The doubts that have arisen about these ballot papers have not been removed by the presiding officers who came to give evidence in this Court. The question is whether an election can be set aside when the Court entertains a doubt of this nature.

Learned Counsel for the Petitioner drew my attention to the relevant portions of Rule 56(2)(g) of the Conduct of Election Rules, 1961, and the first proviso thereto which are as follows:

56(2) The Returning Officer shall reject a ballot paper--

(g) If it bears a serial number,...different from the serial numbers,...of the ballot papers authorised for use at the particular polling station,:...

* * *

Provided that where the Returning Officer is satisfied that any such defect as mentioned in Clause (g)...has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect.

The Petitioner''s counsel submits that all the aforesaid ballot papers were improperly received and should be rejected because their serial numbers were different from the serial numbers of ballot papers which were issued or which should have been issued to voters in the booths concerned. Learned Counsel wants me to construe the expression ''authorised for use'' as ''issued to voters'' in view of the particulars the presiding officer is required to give in Form No. 16. The presiding officer, as we have seen, has to state the serial numbers of ballot papers (i) received, (ii) not used, (iii) issued to voters, (iv) cancelled and (v) used as tendered ballot papers.

Mr. Roy, Learned Counsel for the Respondent No. 1, contends, however, that the expression ''authorised for use'' cannot mean ''issued to voters''. He relies on the Representation of the People (Conduct of Election and Election Petitions) Rules, 1951. In Rule 47(1)(c) of these Rules also there were similar provisions. It said:

47(1) A ballot paper in a ballot box shall be rejected if--

* * *

(c) It bears any serial number...different from the serial number...of ballot papers authorised for use at the polling station or the polling booth at which the ballot box in which it was found was used;

Mr. Roy points out that when these old Rules were in force, in the ballot paper account, the presiding officer was not required to mention the serial numbers of the different categories of ballot papers mentioned above. In other words, the expression ''authorised for use'' could not have meant in the old Rules ''issued to voters'' inasmuch as at that time no records of serial numbers of ballot papers ''issued to voters'' were maintained. If, therefore, Mr. Roy contends, the intention was that in Rule 56(2)(g) of the new Rules the term ''authorised for use'' should be given a different meaning the necessary changes in the language of the Rule should have been made. Mr. Roy urges that the Returning Officer has no power to reject a ballot paper so long as its serial number falls within the serial numbers of ballot papers received by him.

Prima facie Mr. Roy''s contention appear to be sound. But I do not intend to decide this point of the Petitioner''s counsel in these proceedings. Milan Bandhu Mukherjee, the Returning Officer, was called by the first Respondent: he said in answer to Q. 10 that he was in charge of the ''Parliamentary counting'' and by his side at the same table Sisir Kumar Sen, the Assistant Returning Officer "was given the authority to conduct the counting of votes for the Assembly constituency". Milan Bandhu adds further that Sisir Kumar, where necessary, sought Milan Bandhu''s advice.

In spite of the last statement of Milan Bandhu Mukherjee the Petitioner''s counsel did not ask any questions in cross-examination with respect to the ballot papers beyond account.

Sisir Kumar Sen, the Assistant Returning Officer, was called by the Petitioner; but to him also no questions were put by either side on the ballot papers beyond account.

From the attitudes of Learned Counsel for both the parties it seemed to me that at the time of counting this aspect of the matter went unnoticed. The Petitioner''s answer to Q. 575, quoted above, also justifies this conclusion. The Petitioner has said that when the ballot boxes were opened the ballot papers were not verified with the presiding officer''s returns. In these circumstances, in the total absence of any evidence as to the Returning Officer''s satisfaction it is useless to discuss in this petition his powers of rejection, if any, with reference to Rule 56(2)(g) of the Conduct of Election Rules, 1961.

Assuming that the Returning Officer did not have the power to reject these ballot papers and, as such, they were not improperly received by him, Learned Counsel for the Petitioner has rightly contended that, the Court has power u/s 100(1)(d)(iv) of the 1951 Act to declare an election void if the Court is of opinion that the result of election, in so far as it concerns a returned candidate, has been materially affected, inter alia, by any non-compliance with the provisions of the Act or any rules or orders made under the Act.

We have seen that the failure to issue ballot papers according to the serial numbers thereof is a non-compliance with the necessary implications of the directions of the Election Commission in pursuance of Rule 30(1) of the Conduct of Election Rules, 1961.

We have, now to examine, what is meant by the expression "the result of the election, in so far as it concerns a returned candidate, has been materially affected". In England, Section 16(4) of the Representation of the People Act, 1949, runs thus:

No parliamentary election shall be declared invalid by reasons of any act or omission by the Returning Officer or any other person in breach of his official duty in connection with the election or otherwise of the Parliamentary election if it appears to the Tribunal having cognizance of the question that the election was so conducted as to be substantially in accordance with the law as to elections, and that the act or omission did not affect its result.

For the sake of convenience I would repeat the relevant provisions of Section 100(1)(d)(iv) of our Act of 1951. The provisions are as follows:

100(1). ...if the High Court is of opinion--

* * *

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--

* * *

(iv) by any non-compliance with the provisions...of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.

Now in Abdul Rauf v. Govind Ballabh Pant 8 E.L.R. 240 an Election Tribunal of Lucknow has held that under the English law if non-compliance with any of the provisions of the Rules is proved, the onus lies on the Respondent to show that it did not affect the result of the election: under the Indian Act, even though the Petitioner succeeds in proving non-compliance with the Rules, the onus still remains on him to prove that it has materially affected the result of the election, that is to say, it has caused the returned candidate to obtain a majority of votes: it is not enough to show that the result of the election might have been affected. This Election Tribunal at pp. 263-64 quotes Baron Martin in the Warrington case: Crozier v. Rylands 1 O''M & H 42. Baron Martin said:

a Judge to upset an election ought to be satisfied beyond all reasonable doubt that the election was void; the return of a member is a serious matter and not to be lightly set aside.

The question of onus does not present any difficulties in this petition. The election Petitioner has proved, as we have observed, that although the first Respondent has a majority of 25 votes, there are 71 ballot papers beyond account; but the circumstances that are required for the Court to the conclusion that the result of the election has been materially affected, have to be further discussed in this judgment in the light of principles recognised by English and Indian Courts and Tribunals.

In Sudhansu Sekhar Ghosh v. Satyendra Nath Basu 4 E.L.R. 73 an Election Tribunal in Calcutta has said that in most cases, from the facts proved, the Court will have to determine whether the presumption that the result of the election has been materially affected should or should not be raised. Where, for instance, it was found that in several polling booths, polling started late and closed at 5 p.m. instead of continuing for the full statutory period of 8 hours; that a large number of votes were not polled, that there was refusal to record votes of certain registered electors and that there was a difference of only 92 votes between the two principal contestants, it was held that in the circumstances the refusal to record votes of the registered electors coupled with the non-compliance of the law in starting late and not continuing for the statutory period must be deemed to have materially affected the result of the election, and the election should be declared void.

The Election Tribunal has followed the judgment of a Division Bench of this Court presided over by Sir Asutosh Mookerjee in Shyam Chand Basak v. The Chairman of Ducca Municipality 24 C.W.N. 189.

The Madras High Court in K.S. Subramania Goundar v. Election Tribunal, Vellore 8 E.L.R. 66 (82) has come to similar conclusions with respect to the presumption aforesaid. The judgment was delivered by Subba Rao, J., as he then was. It is stated in this judgment that under the English law the burden of proving that the result of the election has been materially affected by any irregularity or contravention of the rules is on the party who seeks to sustain the election, whereas under the Indian law, it is upon the person who impugned the election: though it is necessary to prove that the result of the election has been materially affected, not only that it might have been materially affected, a finding of fact that the result has been materially affected can be arrived at as an inference from circumstances and probabilities where direct evidence is not available. Subba Rao, J. has quoted an observation of an Election Tribunal in R.S. Ram Jawaya Kapur v. R.B. Ganga Saran 2 Doabia 226. The observations are as follows:

In our view the onus of proving that the result of the election would have been materially affected is upon the Petitioner but that onus could be discharged, and a Judicial Tribunal could expect it to be discharged, only by establishing circumstances and facts, justifying the probability or inference that the balance might well have been tilted. If that is to be established as a certainty, we are asking for the impossible.

After quoting these observations Subba Rao, J. says:

...What the Tribunal really meant was that in such cases where direct evidence would not be available to prove how many would have been present but for the irregularity and how many would have voted for one or other of the candidates, the only possible methods was to infer from the facts and circumstances placed before it whether the result of the election was affected by the said irregularity. It is saying nothing more that what a Court of facts should and would do in the absence of direct evidence....

Subba Rao J. has said Supra, p. 78:

The third method is for the Tribunal to come to a conclusion on the facts placed before it and the probabilities arising therefrom. In arriving at a conclusion on this basis the critical considerations may enter, but nonetheless the finding is one of fact.

We see, therefore, that so far as the expression "the result of the election has been materially affected" is concerned, the general trends of Indian decisions are as follows:

(1) The onus is on the Petitioner to prove that the result has been materially affected. See also Mahadeo Vs. Babu Udai Pratap Singh and Others, .

(2) The Petitioner can establish by direct evidence that the result has been materially affected.

(3) Where direct evidence would not be available the Petitioner must place before the Court or Tribunal, as the case may be, facts and circumstances justifying the probability or inference that the result has been materially affected.

The third principle enumerated above appears to have been based to a great extent on English decisions which have been summarised in Halsbury''s Laws of England (3rd ed., vol. 14, Article 161, pp. 149-150), Parker''s Election Agent and Returning Officer (6th ed., p. 276), Rogers on Elections (vol. II, 20th ed., p. 41) and Schofield''s Parliamentary Elections (2nd ed., pp. 534-536).

The basic English principles relevant to the point involved in the instant petition are that no election is to be declared invalid by reason of any act or omission by the Returning Officer or by any other person in breach of his official duty in connection with the election or otherwise of the Election Rules, if it appears that the election was so conducted as to be substantially in accordance with the law as to the elections, and the act or omission did not affect the result: an election ought not to be held void by reason of transgressions of the law committed without any corrupt motive by the Returning Officer or his subordinates in the conduct of election if the Tribunal is satisfied that the election was, notwithstanding those transgressions, an election really and in substance conducted under the existing election law, and that the result of the election was not and could not have been affected by those transgressions: if, on the other hand, the transgressions of the law by the officials being admitted, the Court or Tribunal sees that the effect of the transgressions was such that the election was not really conducted under the existing election laws, or it is open to reasonable doubt whether those transgressions may not have affected the result, and it is uncertain whether the candidate who has been returned has really been elected by the majority of persons voting in accordance with the laws in force relating to elections, the Court or Tribunal is then bound to declare the election void.

With respect to the ballot papers beyond account Mr. Roy, Learned Counsel for the Respondent No. 1, has urged that: (a) there is no pleading that spurious ballot papers were inserted into the ballot boxes at the time of polling; (b) there is no conclusive evidence, that these ballot papers were spurious: simply by looking at Form No. 16 this conclusion cannot be reached: an examination of Form No. 16 for the different impugned booths merely shows, that it was not properly maintained; (c) Exhibit 11 which is the ballot paper account maintained by the Returning Officer shows that all the ballot papers challenged as B.P.B.A.'' were actually received by the presiding officers concerned; and (d) in the circumstances, the only explanation is that ballot papers in those booths were not issued to the voters serially.

Mr. Roy also made an application to me for Inspection of the packets of unused ballot papers of Booths Nos. 12, 57, 60, 63 find 92. The application was originally moved on or about November 27, 1967; but it was not pressed at that time as the election Petitioner did not allege that ballot papers bearing the same serial numbers would also be found in the packets of unused ballot papers. On December 20, 1967, Mr. Roy submitted to me that he should be allowed formally to move the application. I gave him permission to do so and the application was eventually heard on January 8, 1968, after the affidavits were completed. The election Petitioner in his affidavit-in-opposition resists this application, inter alia, on various technical grounds. It is stated, for instance, that the petition has not been signed by the first Respondent; the petition does not state under which provision of law the application has been made; and no court-fee stamps have been affixed. Leaving aside these technical points which are no doubt substantial, the ground on which the application is based has been set out in para. 3 of the petition. The paragraph runs thus:

That the packets of unused ballot papers of the said booths have been sent to this Hon''ble Court by the District Election Officers. An inspection of the unused ballot papers of these booths would show whether any of the said ballot papers with serial numbers of ballot papers which have been challenged by the Petitioner as outside ballot paper accounts, but which were counted as valid votes of the Respondent No. 1, can be found among unused ballot papers of the said booths.

Learned Counsel for the election Petitioner made it clear to me that it was not his case that ballot papers bearing the same serial numbers would be found in the packets of unused ballot papers. His case is that there has been an infringement of statutory rules and orders materially affecting the result of the election.

In view of these submissions of the election Petitioner''s counsel it is wholly unnecessary to make any order for inspection of unused ballot papers.

I would have been inclined to accept Mr. Roy''s contention that ballot papers were not issued serially in Booths Nos. 12, 57, 60, 63 and.92 and ballot paper accounts of these booths had not been properly maintained; if the presiding officers who were called as witnesses had satisfactorily explained the position particularly with Reference to their diaries. From the rules and directions I have already referred to it is clear that ballot papers are intended to be issued to voters serially and for a tendered vote the ballot paper bearing the last serial number has to be used. All the presiding officers who have deposed in this case have admitted that this is the correct procedure and have stated further that in their respective booth they, in fact, started ballot papers serially. Except Nihar Ranjan Shome none of the presiding officers stated definitely that in their booths the serial numbers were broken--they were merely suggesting certain possibilities. Nihar Ranjan''s evidence on this point, as we have seen above, is also shaky. Moreover, the impugned ballot papers of Booths Nos. 12 and 57 clearly come within the serial numbers of ballot papers stated to have been ''not used'' in Form No. 16. Here is a case in which the first Respondent has a bare majority of 25 votes over the election Petitioner and there are 71 ballot papers which ordinarily could not have been issued to voters at all, but were, in fact, found in the ballot boxes. The impact of all these facts taken together seems to me that it is open to reasonable doubt whether transgressions of certain rules and the directions to give effect to those rules may not have affected the result of the election and it is uncertain whether the Respondent No. 1 has really been elected by the majority of persons voting in accordance with the laws in force. In the premises, this election cannot be sustained.

But before I make any final orders it would be necessary to deal with Issue No. 3. Mr. Roy for the first Respondent has urged that in this election petition various allegations have been made against the Returning Officers and other officers engaged in counting. These persons, according to Mr. Roy, should have been made parties to the petition and, in their absence, the petition should be dismissed. Reliance was placed on the judgment in Dwijendra Lal Sen Gupta Vs. Harekrishna Konar, .

The same point was raised before me in Election Petition Case No. 7/67, Rama Prosad Roychowdhury v. Baidya Nath Bandopadhya ILR (1968) Cal. 281, I had considered in that case Section 82 of the Representation of the People Act, 1951. The section runs thus:

Parties to the petition. A Petitioner shall join as Respondents to his petition--

(a) where the Petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the Petitioner, and where no such further declaration is claimed, all the returned candidates; and

(b) any other candidate against whom allegations of any corrupt practice are made in the petition.

These provisions make it clear that the Returning Officer or any other officer is not a necessary party to an election petition. The Court has no power to dismiss a petition on the ground that these officers have not been added as parties. [Vide Section 86 of the Act of 1951.] Indeed, the same observations were made by P.B Mukharji, J. sitting with N.K. Sen, J.) in Dwijendra Lal Sengupta''s case Supra, p. 928. His Lordship says:

It is quite true that Section 82 does not require the Returning Officer to be added as a party Respondent It is also not unreason able to infer that by necessary implication as well as by obvious exclusion, Section 82 does not make the Returning Officer a ''necessary'' party to the election petition. But that only at best shows that the Returning Officer is not what is called a ''necessary'' party to the extent that his non-joinder will not lead to the penalty of dismissal of the petition But the Returning Officer may nevertheless in an appropriate case be a ''proper party'' who may be added as party to the election petition....

It is clear, therefore, that the Returning Officer is not a necessary party as alleged in para. 2 of the written statement of the first Respondent and the petition is not liable to be dismissed on this ground. This contention of Mr. Roy is, therefore, overruled.

The only other question that remains to be considered is the relief that the Petitioner is entitled to. In his prayers he has asked for (a) a declaration that the election of the Respondent No. 1 is void and (b) a declaration that the Petitioner has been duly elected. The second declaration cannot be made unless the Court is of opinion that, in fact, the Petitioner received a majority of valid votes. [Vide Section 101 of the Representation of the People Act, 1951.] I have said earlier in this judgment that this election cannot be upheld as is open to reasonable doubt whether the transgression of certain Rules in the Conduct of Election Rules, 1961, and the directions of the Election Commission to give effect to those Rules may not have affected the result of the election, and it is uncertain whether the Respondent No. 1 has really been elected by a majority of votes. I cannot, therefore, form the opinion that,-in fact, the Petitioner has obtained a majority of valid votes. The second declaration, the Petitioner has asked for must, therefore, be refused.

In the result, there will be a declaration that the election of the Respondent No. 1 for the 136 Alipore Assembly Constituency, Calcutta, of the West Bengal Legislative Assembly is void. There will be no order as to the costs of this petition. I also make no order on the application for the inspection of unused ballot papers or as to the costs thereof.