J.K. Mohanty, J.
1. This election petition has been filed by Sri Harihar Sethi, a Congress (I) candidate against Sri Trinath Naik. a Lok Dal candidate who has won the election. It has been prayed that the election of respondent No. 1 Trinath Naik be declared void and that it also be declared that the petitioner has been elected as a member of the Orissa Legislative Assembly from Hindol No. 117 (SC) Constituency, The facts stated in the petition so far as it is relevant may be briefly stated thus:
2. Petitioner, who is a member of the Scheduled Caste, contested the election as a candidate of Congress (I) party from Hindol (S.C.) Constituency to the Orissa Legislative Assembly. Respondent No. 1 contested the same election to which polling took place on 31-5-3 980. Respondent No. 1 contested as a candidate of Lok Dal and respondent No. 2 contested as a candidate of Congress (U) party. The counting of votes was done on 1-6-1980 by the Subdivisional Officer, Hindol who was the Returning Officer. In this election respondent No. 1 was declared elected as he secured 16,670 votes as against 16,390 votes secured by the petitioner and 5,269 votes secured by respondent No. 2. According to the petitioner, some irregularities were committed in the counting. The details of the irregularities have been mentioned in paragraph 2 of the election petition. It is also alleged that several corrupt practices have been committed by respondent No. 1 and his election agents and by other persons with his consent and he has obtained and/or procured the assistance for the furtherance of the prospects of his election from the persons in the service of the Government and by such corrupt practices the result of the election has been materially affected. The alleged corrupt practices said to have been committed are as follows :--
(a) That under the Representation of People Act (hereinafter called the 'Act') and the Conduct of Election Rules (hereinafter called the 'Rules') respondent No 1 was allotted the symbol 'Mahila' (Woman) by the Government of Orissa, Home Department (Election Department Letter dated 1-5-1980), but in the posters and pamphlets published by respondent No. 1 he advertised his symbol as 'Maa' (Mother). By this publication appeal was made to the sentiment of the voters that 'Mother' was his symbol, The voters were misguided by the said publication of the posters etc. and the result of the election was materially affected.
(b) That on behalf of Lok Dal party which sponsored the candidature of respondent No. 1, advertisements to vote for 'Utkal Janani' were published in the daily Oriya news papers 'Samaj, Prajatantra and Dharitri' and the English daily 'News of the World'. The publication of the words 'Utkal Janani' was made intentionally to misguide the voters by appealing to their sentiment on the grounds of race, community and language;
(c) That the S. D. O. Hindol, Sri K. K. Bose with the consent of respondent No. 1 canvassed for respondent No. 1 by moving in Government Jeep ORD 3164 and appealed to the voters to vote for respondent No. 1 as respondent No. 1 represents the mother 'Utkal' and on his direction development work, particularly road work, was being carried on in the Constituency; and
(d) That one Khirod Kumar Acharya, an L. D. Clerk of the S. D. O's office openly worked and canvassed for respondent No. 1 in the constituency by moving in a Jeep No. ORS 2125. The canvassing was done by the above named public servant with the consent. of respondent No. 1 who was present at the time of canvassing.
Respondent No. 1 thus committed corrupt practices as provided in Sub-sections (2), (3), (4) and (7) of Section 123 of the Act. It has further been asserted that the Returning Officer should have allowed the application made by one of the counting agents of the petitioner for recounting the votes of all booths. The petitioner believes that he should have been elected by a majority of votes if the votes would have been recounted.
3. Respondent No. 1 alone filed written statement, but respondent No. 2 did not file any written statement. Respondent No. 1 in his written statement has denied all allegations made in the election petition regarding corrupt practiced, improper reception or refusal or rejection of votes and acceptance of void votes in favour of respondent No. 1 etc. According to respondent No. 1, the election petition is not maintainable as barred by limitation and is liable to be dismissed for non-compliance with the provisions of Section 83 of the Act. It is further alleged that the petition is vague and unspecific and that the irregularities in counting as alleged are false. It is further averred that an irregularity in counting in respect of Table No. 3. was detected by one of the Assistant Returning Officers who, therefore, returned all the counted bundles of votes in respect of Table No. 1 for recounting and the ballot papers were recounted by order of the Returning Officer. On scrutiny it was found that three votes which should have gone to respondent No. 1 were wrongly counted in favour of respondent No. 2 which fact has been admitted by respondent No. 1, but the petitioner has not been in any way affected by this. The petitioner or his counting agent never pointed out any irregularities in the counting process at any time. One of the counting agents of the petitioner applied for recounting of all votes on a suspicion only and on the ground that the difference in votes between the petitioner and respondent No. 1 was very small. Neither before the Returning Officer nor in the petition any allegation has been made that the result of the election in so far as it concerns the returned candidate has been materially affected by improper reception, refusal or rejection of any vote or acceptance of any vote which is void or by non-compliance with the provisions of the Act or Rules or Orders made thereunder.
It is averred that recounting cannot be claimed as a matter of right nor can it be ordered simply basing on mere suspicion or because the margin of votes is narrow. The Returning Officer rightly rejected the prayer for recounting. Further it is urged that the averment made in paragraph 2 of the petition that the counting agents of the petitioner could not be present at the time of counting of votes of first 24 booths as they could not enter the room due to stampede is false and, even if it is true, it is not a ground to justify recounting. The non-attendance of the counting agents at the place and time appointed does not in law invalidate the proceedings of counting before the Returning Officer. It is false to say that respondent No. 1 has published in any of the papers that his symbol represents 'Utkal Janani'. Assuming for the sake of argument that it is true, it is submitted that this is not an appeal on the ground of race, community or language and does not constitute a corrupt practice as envisaged un-under Section 123 of the Act. The allegations that the S. D. O. Hindol Sri K. K. Bose canvassed for respondent No. 1 and that on 20-5-1980 during canvassing respondent No. 1 was present with him in a Government Jeep are false. Similarly the allegation that one Khirod Kumar Acharya worked for respondent No. l is false.
The gravamen of the charge being 'obtaining' or 'procuring' the assistance of Government servants specified in Section 123(7) of the Act, and there being no allegation of 'obtaining' or 'procuring' against respondent No. 1 or any agent with his consent, it does not make a triable issue. It is further asserted that no corrupt practice was committed in the* election by respondent No. 1 or his agents and respondent No. 1 took all reasonable means for preventing commission of corrupt practice at the election and the election was free from any corrupt practice on the part of respondent No. 1 or his agents. On the above averments dismissal of the election petition is claimed.
On the aforesaid pleadings the following issues have been framed;---
1. Is the election petition maintainable as framed?
2. Whether respondent No. 1 is guilty of corrupt practices committed byhimself or by his agent or any otherperson with his consent or his election agent.
3. Whether the Returning Officer acted in contravention of law refusing the petition under Rule 63 of the Conduct of Election Rules of the petitioner for recounting the votes wholly and whether thereby the result of the election was materially affected.
4. Is the petitioner entitled to a direction for recounting of the ballot papers?
5. What relief, if any, is the petitioner entitled to?
For the sake of convenience, I may deal with the issues first.
Issue No. 1:-- The ground of attack is that the election petition is liable to be dismissed for non-compliance with the provisions of Section 81(3) of the Act as the copy of the election petition served on respondent No. l - was not attested. This amounts to violation of Section 81(3) of the Act. On a consideration of the facts and circumstances of the case, I do not see any reason to hold that the petitioneer has not complied with the provisions of Section 81(3) of the Act as the necessary attested copies were filed but each page was not signed which was subsequently done by order of the Court. Thus the election petition is maintainable and the issue is answered in favour of the petitioner and against respondent No. 1.
Issue No. 2 :-- The election of respondent No. 1 is sought to be challenged on the ground of corrupt practices falling under Sub-sections (2), (3), (4) & (7) of Section 123 of the Act. It is alleged that in the wall posters like Ext. 7 circulated in the constituency, respondent No. 1 published the symbol 'Maa' (Mother) which is false to his knowledge, as the symbol allotted to him was 'Mahila' (Woman). 'Maa' has religious and emotional appeal to the voters as in Hindu tradition in vogue from ancient times 'mother' has always been referred to as a religious symbol and worshipped with reverence. By publishing and circulating wall posters giving a false symbol respondent No. l made an emotional, and religious appeal to the sentiment the voters and for which the result of the election was materially affected.
It is further alleged that the S. D. O. Hindol with the consent of respondent No. 1 assisted him for the furtherance of his election prospects by openly canvassing the voters in the area with the Government Jeep and on 20-5-1980 he was found with respondent No. 1 propagating in village IS! uakote. The further allegation is that in the publications (like Ext, 5 series) made in Prajatantra the appeal was made to the voters in the name of 'Utkal Janani' to support the candidates set up by Orissa Leaders as against stooges set up from leaders outside Orissa for all-round development of Orissa. The stress was on the community, language and religion as provided under Section 123(3) of the Act. Respondent No. 1 also made a false publication about his symbol to prejudice the prospect of his (petitioner) election and this is a corrupt practice under Section 123(4) of the Act. The above facts have been supported by P. W. 4 (petitioner himself) and his witnesses in their evidence. P. W. 4 has stated :--
'In the election it was propagated on behalf of O.P. No. 1 that people should vote in the symbol 'Maa' (Mother) though the election symbol was 'woman'. This was also published in the daily Prajatantra like Annexures 5, 7 and 9. On behalf of O.P. No. 1 it was also propagated that if people would vote in the symbol 'Maa' and 'Utkal Janani' there would be all round improvement of the State. The voters were swayed away and the result of the election way materially affected by such propaganda. P. W. 6 in his evidence has stated:--
'I know Trinath Naik respondent No. 1, who was the candidate of Lok Dal. His symbol was 'Maa' (Mother) and they were propagating in the name of 'Utkal Janani'. Due to this propaganda in the name of 'Utkal Janani', 'Mother Utkal', I was not in any way influenced. I feel, some might have been influenced by this. The wall posters like Ext. 7 and hand-bill marked 'Z' for identification were used on behalf of respondent No. 1. In my view, the people were swayed away by the propaganda 'Utkal Janani', 'Maa'.' Respondent No. 1 in his evidence has specifically stated that 'there is not much difference between the wall posters published by me and Ext. 7'. He has also admitted that his symbol was 'mahila' but not 'mother'. He has further admitted that he had printed 5000 copies of wall posters in Dhenkanal Panchayat Press. His statement has been corroborated by P. W. 3, the Proprietor of Panchayat Press, Dhenkanal. Mr. Murty, the learned counsel for the petitioner, argued that respondent No. 1 has not published any other wall posters as alleged by him with the symbol 'Mahila' to refute the adverse inference and presumption that can be drawn in the circumstance. So there was an appeal by respondent No. 1 and his agent and other persons with his consent to vote for him on the ground of religion, caste and community for the furtherance of the prospects of his election and thereby prejudicially affecting the result of the election, in support of his contention Mr. Murty places reliance on the decisions reported in AIR 1959 Madh Pra 226, AIR 1967 SC 808, AIR 1970 SC 1889 and AIR 1958 Orissa 228. In AIR 1959 Madh Pra 226 (Jamuna Prasad Singh v. Shri Ramnivas) it has been held:-- (at p. 228) 'A court is not concerned with a false statement made by any person against any candidate but a false statement designed to better the prospects of a returned candidate.'
In AIR 1967 SC 808 (Kumara Nand v. Brijmohan Lal Sharma) it has been held (at p. 813):
'The main onus on an election petitioner under Section 123 (4) is to show that a statement of fact was published by a candidate or his agent or by any other person with the consent of the candidate or his election agent and also to show that the statement was false and related to his personal character or conduct. Once that is proved and the complaining candidate has sworn that the candidate publishing the statement believed it to be false or did not believe to be true, the burden shifts to the candidate making the false statement of fact to show what his belief was. The further question as to prejudice to the prospects of election is generally a matter of inference to be arrived at by the tribunal on the facts and circumstances of each case.'
In AIR 1970 SC 1889 (Om Prakash v. Lalchand) it has been held (at p. 1891);--
'The four elements necessary to constitute corrupt practice under Section 123(4) are :(i) publication by the candidate or his agent or by any other person with the consent of the candidate of any statement of fact; (ii) the statement of fact is false and a candidate or his agent or any other person either believes it to be false or does not believe it to be true; (iii) the publication is in relation to the personal character and conduct of any candidate; and (iv) the statement is reasonably calculated to prejudice the prospects of that candidate's . election.'
In AIR 1958 Orissa 228 (Prananath Pat-naik v. Banamali Patnaik) it has been held:-- (See H. N. Pt. C.)
'Where in an election petition the respondent denied that he or his party had printed a pertain pamphlet containing false allegations against the petitioner and distributed them at a meeting and his witnesses admitted in their evidence that the party and its officers maintained proceedings of work done such as printing and publishing of leaflets, holding of meetings etc. Held that the respondent in view of the evidence of his witnesses should have proved his denial by producing the proceedings in evidence. When the respondent failed to produce them the election tribunal was justified in drawing an adverse inference against him.'
Mr. Misra, learned counsel appearing for respondent No, 1 argued that the burden of proof of corrupt practices is on the petitioner seeking to have the election set aside on that ground. There is absolutely no evidence that there has been any appeal by respondent No. l or his agent or by any other person with his consent to vote or refrain from voting for him or any candidate on the ground of religion, race, caste, community or language etc. The election can be declared void only under the provisions of Section 100 of the Act. Further there is nothing to show that the publication by respondent No. l or his agent or by any other person, with his consent or his election agent of statement which has been made was in relation to the personal character or conduct of the petitioner and was reasonably calculated to prejudice the prospects of his (petitioner) election Mr. Misra further argued that even assuming that in the wall posters like Ext. 7 the symbol 'mahila' has been described as 'Maa' and that in the publication in Prajatantra like Ext. 5 series an appeal has been made to the voters in the name of 'Utkal Janani', this will not come under the purview of Sub-sections (3) & (4) of Section 123 of the Act. He submitted that appealing to the sentiment does not come under the purview of law. There is no evidence whatsoever that there was an appeal in the name of religion or community by respondent No. 1 or his agents and that the result of the election has been materially affected thereby.
Even assuming that 'Mahila' has been described as 'Maa', no corrupt practice has been committed thereby and further there is nothing to show that anybody was swayed away by such propaganda. There has been no propaganda in the name of 'Utkal Janani' as alleged. There is no allegation in the petition that there was an appeal to voters in the name of 'Utkal Janani'. In support of the above contentions he places reliance on the decisions reported in (1954) 10 ELR 30: (AIR 1954 SC 513), AIR 1965 SC 141, AIR 1964 Madh Pra 1, AIR 1965 SC 669, AIR 1959 Raj 280, (1958) 18 ELR 403 (Ele. Tri. Surat), AIR 1970 SC 1889 and AIR 1961 Pat 41. In (1954) 10 ELR 30: (AIR 1954 SC 513) (Vashist Narain Sharma v. Dev Chand) it has been held (at p. 515 of AIR 1954 SC) :--
'The words 'the result of the election has been materially affected' in this clause indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate. In AIR 1965 SC 141 (Kultar Singh v. Mukhtiar Singh) it has been held (at p. 144):--
'In considering the question as to whether a particular appeal made by a candidate falls within the mischief of Section 123(3), Courts should not be astute to read into the words used in the appeal anything more than can be attributed to them on its fair and reasonable construction.
The principles which have to be applied in construing such a document as an election poster are well settled. The document must be read as a whole and its purport and effect determined in a fair, objective and reasonable manner.
In reading such documents, it would be unrealistic to ignore the fact that when election meetings are held and appeals are made by candidates of opposing political parties, the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language, or the adoption of metaphors, and the extravagance of expression in attacking one another, are all a part of the game; and so, when the question about the effect of speeches delivered or pamphlets distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some allowance must be made and the impugned speeches or pamphlets must be construed in that light. In doing so, however, it would be unreasonable to ignore the question as to what the effect of the said speech or pamphlet would be on the mind of the ordinary voter who attends such meetings and reads the pamphlets or hears the speeches.'
In the above case the appeal to voters was that every Sikh vote should go to the representatives of the Akali Dal in order to preserve the honour of the 'Panch'. It was held that the appeal to voters in the name of 'Panch' did not come within the meaning of corrupt practice as envisaged under Section 123(3) of the Act. In AIR 1964 Madh Pra 1 (Bhagirath Bilgaiya v. Rishabh Kumar) it has been held that appeal to vote for a candidate to protect the 'mother cow' is not an appeal on the ground of religion. In AIR 1965 SC 669 (Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji) it has been held that though the (candidate was allotted 'Star' symbol the candidate describing the symbol as 'Dhruva Star' with its attributes in election pamphlets was not a corrupt practice as 'Dhruva Star' was not a religious symbol. In AIR 1959 Raj 280 (Khilumal Topandas v. Arjundas Tulsidas) it has been held (Paras 11, 12 & 13) :--
'The dictionary meaning of the word 'community' is very wide. It may even mean the body of men having common interest. Such interest may be social, economic or political. It is evident that the word 'community' cannot be construed in its wider sense when it is used in Section 123(3).
Communities organised for the purpose of cementing the citizens for the purpose of social, economic and politi cal progress of the country, do not come under Section 123(3).
Having regard to the intention of the legislature and to the association of words 'caste, race and religion' with the word 'community' the meaning of the word 'community' must be restricted and it should be read as meaning a body which has been formed, organised of has come into existence on the basis of caste, race or religion or any other factor contributing or leading to the division of the nation.'
In (1958) 18 ELR 403 (Ele. Tri. Surat) (Kataria Takandas Hemraj v. Pinto Frederick Michael) it has been held that an appeal to 'Maharasthrians' is not an appeal on the ground of race, caste or community. The word 'community' in Section 123(3) must be given a narrower meaning than the dictionary meaning a body of persons having a common interest. Mr. Misra also relied on the decision reported in AIR 1970 SC 1889 (supra), which has been cited by the petitioner, and submitted that the four ingredients necessary to constitute corrupt pratice under Section 123(4) of the Act bave not proved in this case, in AIR 1961 Pat 41 (Badri Narain Singh v. Kamdeo Prasad Singh), which is in the same line as the case reported in AIR 1970 SC 1889, the essential ingredients of corrupt practice have also been enumerated.
Law is now well settled that when a candidate for election either to the State Legislature or the Parliament is charged with the commission of any corrupt practice, the charge is in almost all respects similar to a criminal charge and, therefore, the evidence must establish the charge conclusively beyond all reasonable doubt. The law prescribes severe punishment for commission of corrupt practices. The case of the petitioner must stand or fall on its own leg and can derive little sustenance from the weakness in the defence set up by the respondent. The evidence must be such as would bring the charge home against the respondent beyond all reasonable doubt. Therefore, if the evidence adduced is not sufficient or trustworthy to prove the charge or establish a charge which is different from the charge levelled against the respondent the case of the petitioner cannot be said to be proved, and the election cannot be set aside on such evidence. The petitioner has to prove the alleged corrupt practices beyond., reasonable doubt and the respondent No. 1 has similarly all the privileges of an accused and is entitled to the benefit of doubt. Judging from the aforesaid standard and on the principles enunciated in the decisions cited above it is to be seen how far the petitioner has been able to prove his case. No doubt in the pamphlets like Ext. 7 the symbol 'Mahila' has been described as 'Maa' and in the publications in Prajatantra like Ext. 5 series the symbol 'woman' has been described as' 'Maa' and 'Bande Utkal Janani' has been mentioned at the top of the advertisement made in Ext. 5 series. It is the common knowledge that 'Mahila' (woman) is treated as 'Maa' by all concerned in our country. The argument of the petitioner is that this is an appeal in the name of community and language. Mr. Murty also tried to argue that appeal in the name of 'Maa' (mother) is also an appeal in the name of religion as Goddesses 'Durga, Chandi and Kali' are known as 'Maa'. This argument will not hold good as no such allegation has been made in the petition that there was an appeal to the voters in the name of Goodesses Durga, Chandi and Kali by respondent No. 1 or his agent or any other person with his consent. There is also no evidence to support this contention of Mr. Murty. The evidence adduced by P. Ws. 4 and 6 show that there was no such appeal in the name of religion. P. W. 4 is the petitioner himself and P. W. 6 was the counting agent and is a Surya Bandhu of the petitioner. It cannot also be said that appeal in the name of 'Maa' or 'Mother' is an appeal on the ground of 'community' or 'language' or 'religion'. It cannot also be held that the ingredients of Section 123(3) of the Act have been proved in this case in order to bring home the charge or corrupt practice allegedly made against respondent No. 1. The next argument of Mr. Murty is that though the symbol of respondent No. 1 was 'Mahila' he has made false publications that his election symbol was 'Maa' and this statement of fact is false, and so it must be held that respondent No. 1 has committed corrupt practice as envisaged under Section 123(4) of the Act.
As per the decision reported in AIR 1970 SC 1889 (supra) it must be proved that the publication by the candidate or bis agent or by any other person with the consent of the, candidate of any statement oi fact is false and is in relation to the personal character or conduct of any candidate and the statement is reasonably calculated to prejudice the prospects of the election oi the candidate. In the present case on a consideration of the evidence and the documents it cannot be held that all these ingredients have been proved There is absolutely no evidence that the publication of statement which has been made was in relation to the personal character or conduct of the petitioner and was reasonably calculated to prejudice the prospects of his (petitioner) election. After considering the argument and the evidence on record and the decisions cited above it cannot be held that respondent No. 1 has committed any corrupt practice as envisaged under Section 123(3) & (4) of the Act.
The next allegation of corrupt practice against respondent No. 1 is that the S. D. O. Hindol with the consent of respondent No. 1 assisted the latter in the furtherance of his election prospects by openly canvassing for him in the area in a Government Jeep on 20-5-1980. He was found with respondent No. 1 and was propagating in village Nuakote. It is argued by Mr. Murty that this is supported by P. Ws, 4. 7 and 8 and O. P. W. 2 has also admitted that the S.D.O. visited village Nuakote 10 or 12 days prior to the election. The presence of respondent No. 1 with the S. D. O. is enough to prove that the S. D. O. propagated with his consent. No amount of negative evidence can disprove the participation of the S. D. O. in the election work with the consent of respondent No. 1. P. W. 4, the petitioner himself, has stated :--
'On 20-5-1980 Kamalakanta Bose, S. D. O. of Hindol moved in the Jeep ORD 3164 belonging to the Government and propagated in favour of O.P. No. 1 in village Nuakote inside Hindol constituency. He was propagating that if the voters vote for O.P. No. 1 he would take up the development works of the village. This I heard from Chandra-rnani Pradhan (P. W. 8) and Dolgovind Pati (not examined) of village Nuakote.'
P. W. 7 in his deposition has stated:--
'I know K.K. Bose, the then S. D. O. of Hindol. 10 to 12 days prior to the date of polling I heard that the S. D. O. was there in our village. But I have not seen him. I heard from Dolagovinda Pati, Kulamani Pradhan (P. W. 8) and others of our village that the S. D. O. was propagating in favour of O. P. No. 1. But I have no personal knowledge about this.'
P. W. 8 in his evidence has stated:--
'On 20-5-1980 the S. D. O. of Hindol had been to our village Nuakote in a Jeep. Four to five persons including O. P. No. 1 were with the S. D. O. The S. D. O. told us (about 200 people had gathered) that we had been complaining about lack of communication to our village. If we voted in the symbol 'Maa' (Mother) roads would be completed within a short time. On his assurance all the people agreed to vote in favour of the symbol 'Maa'. After five to six days the work was done. Trinatb Naik (respondent No. 1) did not tell anything.'
The tour diary of the S. D. O. has been proved to show that the S. D. O. had been to village Nuakote on 20-5-1980 and this has been marked as Ext. 3. Basing on the aforesaid evidence it is argued by Mr. Murty that respondent No. 1 has obtained/procured the assistance of the S. D. O, who is a gazetted officer of the Government for the furtherance of his election prospects and as such is guilty of corrupt practice as envisaged under Section 123(7) of the Act. Mr. Misra, learned counsel for respondent No. 1, submitted that the election petition does not contain material facts with full necessary particulars as to the nature of the assistance, time and place where it was sought and doenot furnish any cause of action. According to him, the evidence of P. Ws. 4, 7 and 8 even if accepted as a whole, does not prove any corrupt practice as provided in Section 123(7) of the Act. Further P. W. 4 has admitted that P. Ws. 7 and 8 are congress (I) workers.
4. In this case P. W. 4 has admitted that he heard this from Chandramani Pradhan (P. W. 7), Kulamani Pradhan (P. W. 8) and Dolgovinda Pati, who has not been examined. P. W. 7 Chandramani Pradhan is a worker of the petitioner's party and has stated that he has no personal knowledge about the S. D. O. propagating in the constituency in favour of respondent No. 1. P. W. 8, Kulamani Pradhan is also a worker of the petitioner's party as admitted by the petitioner himself. But he has stated in cross-examination that he does not belong to any party. No independent witness has been examined to prove that the S. D. O. was propagating in favour of respondent No. 1 and this was done with the consent of respondent No. 1. So in my view, the petitioner half failed to make out a case against respondent No. 1 and the ingredients of Section 123(7) of the Act have not been proved.
It is further alleged that one Khirod Chandra Acharya, an L. D., Clerk of the office of S. D. O. was propagating in the constituency for respondent No. 1 between 27-5-1980 and 31-5-1980. To support this allegation petitioner in his evidence has stated that he heard this from one Sudarsan Panigrahi, Kapil Charan Sahu (P. W. 6) and Kahnu Charan Gadnaik. But Sudarsan Panigrahi and Kahnu Charan Gadnaik have not been examined. There is no other evidence to corroborate the statement ot P. W. 4. Even no question was put to P. W. 6 that he told P. W. 4 about Khirod Chandra Acharya's propaganda in the constituency in favour of respondent No. 1. Mr. Misra submitted that this also does not come under the purview of Section 123(7) of the Act as Khirod Chandra Acharya is not a person belonging to any of the classes mentioned in sub-section (7) of Section 123 of the Act. Mr. Murty, learned counsel for the petitioner, also did not seriously press this allegation and I see no merit in the above allegation against respondent No. 1.
For the aforesaid reasons, Issue Number 2 is answered against the petitioner and in favour of respondent No. 1.
Issues Nos. 3 and 4:-- These issues are taken up together for the sake of convenience. It is alleged on behalf of the petitioner that respondent No. 1 has been declared elected by securing only 280 more votes than the petitioner and this margin is very small. According to the petitioner, in the morning of 1-6-1980, i. e., the date of counting of votes, as there was a lot of commotion between the Congress (U) and Lok Dal supporters, he and his counting agents could not get inside the counting hall, in time and the counting commenced in the absence of his counting agents. He and his counting agents could not enter into the counting arena till the first round of counting was over. In Ext. 11, the proceedings of the counting, it has been mentioned that ballot boxes from Bantala had arrived at 7-30 A. M. which supports the petitioner's contention that there was commotion and disturbance etc. for which the ballot boxes could not be taken inside the counting hall. Before declaration of the result and during counting gome irregularity was noticed in counting of booth Nos. 1 and 3. One of the Assistant Returning Officers found that three votes which should have gone in favour of respondent No. 1 were wrongly counted in favour of respondent no. 2.
Further there was no sitting arrangement for the counting agents who were to keep standing and were moving about in the counting hall. There was congestion and disturbance making it impossible for the counting agents to perform their duties. In view of this, the counting agent Sri Sibanarayan Misra (P. W. 5) filed an application vide Ext. 1 for recounting of all votes under 'Rule 63 of the Conduct of Election Rules, 1961. But the Returning Officer by his order dt. 1-6-80 instead of directing recount of the entire votes, only directed recount of votes in respect of booth Nos. 1, 25, 49, 73 and 97 which were counted in Table No. 1. No specific reason was given by the Returning Officer as to why partial recounting was ordered. According to the petitioner in similar circumstances the Election Tribunals direct recounting of all votes even without filing of an application for recounting. In this connection it may be mentioned that an application has been filed on 18-12-80 by the petitioner in this Court on the identical grounds as stated in the petition for recounting of ballot papers rejected and those counted in favour of respondents l and 2 on the identical grounds as stated in the election petition. In order to prove the case petitioner has produced Ext. 1, the petition filed by P. W. 5 before the Return-in Officer for recounting of votes and Ext. 2, the order passed on Ext. 1 by the Returning Officer and has adduced oral evidence. P. W. 4 in his evidence has stated:--
'I along with my counting agents went to the counting hall on that day but in the entrance there was a lot of commotion between Congress (U) and Lok Dal supporters for which we could not enter into the counting hall for a long time. I could not enter inside, but my agents Sibanarayan Misra, Daya-nidhi Patnaik, Artatran Sahu and others entered. It was at about 8.00 A.M. when my counting agents could enter inside the counting hall. By then counting had been over for about 24 booths. At about 8.10 A. M. when I was outside the counting hall, Sibanarayan Misra came out of the counting hall and told me that there was shouting between the agents of Congress (U) and Lok Dal candidates and the votes were not being counted properly (vote epat sepat heuthila) (In oriya). On demand by the counting agent of Congress (U) candidate (O. P. No. 2) the Returning Officer recounted the votes of booth No. 1 only. On recounting it was found that three ballot papers which were wrongly counted in. favour of Congress (U) candidate, were in fact polled by O. P. No. 1. So my counting agent Sibanarayan Misra filed an application before the Returning Officer claiming re-counting of votes of all the booths that had been already counted by that time. The application was filed after the counting was over and before the declaration of the result was made. But the Returning Officer only directed recounting of votes of five booths.'
P. W. 5, who was the counting agent, has stated about the commotion at the entrance. He said that the ballot boxes from Bantala did not arrive in time, and they were prevented from entering into the counting place. According to him, though the counting started at 7.00 A. M. they could enter the hall at about 8 A. M. By then counting of 24 booths had already been over. There was no provision for sitting of the counting agents in the counting hall and in the absence of sitting arrangement they had to stand there and the counting agents and the parties were moving here and there, as a result of which there was commotion inside the counting hall. He stated:--
'In course of the second round of counting the votes polled by three different candidates were sent to the counting table of the Returning Officer. The normal practice is that the doubtful votes are to be checked by the Returning Officer or the Assistant Returning Officer. The Tahasildar, Hindol who was the Assistant Returning Officer went a little out of the procedure and he went to check up the valid votes of respondent No. 2 and it was objected to by respondent No. 2. The objection raised was not considered. The Assist tant Returning Officer (Tahasildar) by opening and counting the bundles of ballot papers found three valid votes of Lok Dal being included in the bundle of votes that were polled by respondent No. 1.'
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As there was narrow margin between the returned candidate (respondent Number 1) and the petitioner, and taking into consideration the three valid votes which were found inside the bundle of votes polled by respondent No. 2. I filed an objection before the Returning Officer to recount the votes. Ext. 1 is the petition I had filed. After I filed the petition before the Returning Officer he did not agree with recounting of all the votes but he passed an order that the votes of booth Nos. 1, 25, 49, 73 & 97 should be recounted.' .
P. W. 6 is another counting agent of the petitioner and has also corroborated P. Ws. 4 and 5 that there was commotion and disturbance by the supporters of Congress (U) and Lok Dal for which they could not enter the counting hall till 8.00 A. M. By this time the first round of counting of 24 booths had already been over. He also deposed about the commotion inside the counting hall. According to him, there was a mistake in the counting of votes of respondent No. 1 and so he doubted that there must be some mistakes in the counting of votes of the petitioner. He has further stated:--
'I had also doubt about the counting as I had detected that some ballot papers which would have gone in favour of the petitioner have been counted in favour of other candidates. This was in the table to which I was allotted. This doubt was fortified because before our entering some votes had already been counted.'
In support of his contention Mr. Murty cited a decision reported in ILR (1972) Cut 439 (Malla Kurumunaikulu v. Darapu Lachanna Naidu) wherein it was held:--
'Counting is an afficial act meant to be done by public officers. The Rules permit candidates and their agents to be present at the counting. An opportunity is thereby given to the candidate or his aeent to watch the counting and to inspect only those ballot paper? which are finally rejected. 'Opportunity' means only a chance and not an unfailing certainty to avoid accidental errors, Their presence is mainly intended to induce care and circumspection in the work of the counting officers and if any error occurs to have it corrected forthwith. It is imperative that the result is to be made known at the earliest opportunity after the election is over and it necessarily means brisk counting. In the name of quick counting, however, the correctness of counting cannot be sacrificed.
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It is true that the petitioner did not ask for a recount by the Returning Officer as provided in Rule 63 (2) of the Conduct of Election Rules, but that does not preclude the filing of an election petition and ask for that relief in a proper case. The reliefs asked for in this petition are as contemplated under Section 100(1)(d)(iii) and Section 101(a) of the Act.
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In this case, certain feature have now come on the record which prima facie rebut the presumption of correctness of the official act of counting. The mistakes in the ballot paper accounts and in the Form 16, the several corrections in the final result sheets (Ext. 13) the failure of the Returning Officer to explain as to how there was shortage of 2 votes in the final counting (with reference to the initial counting) or how there has been excess of ballot papers in some places; the admission of P. W. 8 that a few tendered spoiled ballot papers have been counted; the absence of the particulars of the ballot papers issued at one booth; corrections made m Form 16 without any authority along with the allegation of defective counting in general and with particular reference to the 946 votes establish prima facie that the counting has been defective and there is considerable force in the contention that the result as declared may not be truly representing the verdict of the electorate. This position certainly justifies a recount.'
In reply Mr. Misra submitted that there is no allegation in the petition in terms of Section 100(1)(d) (iii) & (iv) of the Act. There is also no allegation that the result has been materially affected. The material facts as required under Section 83 of the Act having not been given, the allegations must fail. The improper arrangement in the counting hall, narrow margin of votes and suspicion in counting etc. are not the grounds for recounting. He also submitted that the Court cannot order recount on mere possibility of error or only on the ground that the margin by which respondent No. 1 has succeeded is very narrow. Mr. Misra further argued that Section 51 of the Act has made it clear that where any act or thing is required or authorised by or under this Act to be done in the presence of the polling or counting agents, the non-attendance of any such agent or agents at the time and place appointed for the purpose shall not, if the act or thing is otherwise duly done, invalidate the act or thing done. The further argument of Mr. Misra is that an application for recount vide Ext. 1 was filed before the Returning Officer by P. W. 5. In that application the only ground taken was that three votes of booth No. 1 which were to be counted in favour of respondent No. 1 were counted in favour of respondent No. 2. No other ground was taken to justify recount of all votes.
In that application (Ext. 1) nothing has been mentioned about commotion inside or outside the counting hall or about any other irregularities now advanced in the election petition. In Ext. 2 the Returning Officer considered the application (Ext. 1) and directed recount of votes in respect of booth Nos. 1, 25, 49, 73 and 97 counted in Table No. 1. Mr. Misra also refuted all the allegations regarding commotion or disturbance etc. inside or outside the place of counting. He cited a decision reported in ILR (1975) Cut 472 (Jagannath Behera v. Raja Saheta Trilochan Singh Deo) wherein it has been held that even accepting that the arrangement of sitting was not according to the instructions issued by the Election Commission, still then no prejudice is caused to the counting agents and narrow margin and mere suspicion in counting are not the grounds for recount. In the decision reported in (1980) 2 SCC 537: (AIR 1980 SC 206) (N. Narayanan v. S. Semmalai) it has been held that the court cannot order recount on mere possibility of error and that the mere fact of small margin of victory is not a sufficient ground for the court to order recount. In AIR 1966 SC 773 (Dr. Jagjit Singh v. Giani Kartar Singh) it has been heldc--(Paras 31 and 32)
'It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. No hard and fast rule can be laid down in this matter; for, attempt to lay down such a rule would be unexpedient and unreasonable.
The scheme of the rules prescribed in Part V of the Conduct of Election Rules, 1961 emphasises the point that the election petitioner who is a defeated candidate, has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly ovrruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that Section 83(1) of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts.'
5. No doubt in this case evidence has been led on behalf of the petitioner that there was disturbance by Congress (U) and Lok Dal supporters at the entrance for which the petitioner and his counting agents could not get inside the counting arena and there was also disturbance inside the counting hall as there was no sitting arrangement for the counting agents. The other ground taken was that three votes were counted in favour of respondent No. 2 which should have been counted in favour of respondent No. 1 which was subsequently detected and corrected. This fact has not been denied by respondent No. 1. As already mentioned that an application (Ext. 1) was filed on behalf of the petitioner by P. W. 5 before the Returning Officer for recount of all votes and in that application the only ground for recount was that three votes were wrongly counted in favour of respondent No. 2 in respect of booth No. 1 which should have been counted in favour of respondent No. 1. The petitioner has also not filed any petition before the Returning Officer that his counting agents could not enter the counting hall in time due to commotion or disturbance at the entrance nor did he complain about the improper sitting arrangement inside the counting hall or about improper acceptance or rejection of any vote in respect of any other booth. So the argument of Mr. Misra that the allegatin now made regarding commotion or disturbance inside or outside the counting hall and regarding improper acceptance or rejection of votes is an afterthought has considerable force. The mere fact that the margin of votes by which respondent No. 1 succeeded is very narrow will not by itself vitiate the counting of votes and will not justify recounting.
An order for inspection of votes should not be granted as a matter of course and before granting a prayer for recounting the Tribunal prima facie must be satisfied that in order to decide the disputes between the parties and to do complete justice to the parlies, inspection of ballot papers is necessary. In deciding election cases oral testimony will have to be judged with greatest care and an electoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from an independent source.
6. Judging from the above principles and considering the facts and circumstances of the case, the evidence and the allegation regarding commotion or disturbance etc. which has been made in this Court for the first time, it is difficult to accept the oral testimony at this belated stage and allow the prayer for recounting. The issues are accordingly answered against the petitioner and in favour of respodent No. 1 and the petition dated 18-12-1980 for recounting of votes merits no consideration.
Issue No. 5:-- In view of the above findings, the petitioner is not entitled to any relief.