HARI SHANKAR PRASAD versus SHAHID ALI KHAN AND ORS.

Citation: [2003] 2 S.C.R. 1113 · Decided: 13-03-2003 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

t· 
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HARi SHANKAR PRASAD 
A 
v. 
SHAHID ALI KHAN AND ORS. 
MARCH 13, 2003 
[R.C. LAHOTI AND BRIJESH KUMAR, JJ.] 
B 
Election Laws: 
Representation of People Act, 1951: Section /6(A)/Conduct of Election C 
Rules, 1961: Rules 39 and 56: 
Election Petition-Rejection of votes by the Returning Officer due to 
marking by wrong stamp-Petition dismissed by High Court-On appeal, 
Held: when only certain ballot papers in a booth were marked by wrong 
stamp; it goes to show that wrong stamp was supplied by the Polling Officer D 
and withdrawn thereafter as asserted by the petitioner-appellant-Returning 
officers did not conduct proper inquiry to find out facts regarding supply of 
wrong stamp by the polling/presiding officers before rejecting votes. Also 
ignored written direction of Election Commission for counting them as valid 
votes-Hence such votes are valid votes-Thus petitioner declared elected-
£ 
Directions· issued. 
Evidence Act, 1872: 
Ev_idence of Polling Officer~Re/iance thereupon-Held, since the 
statement of one of the Polling officers as to supply of wrong stamp to voters 
is in consonance with the circumstances and plea of the petitioner, such F 
statement is reliable. 
Words & Phrases: 
'felt satisfied'-Meaning and scope of in the context of rejection of G 
ballot papers-Election laws. 
Respondent No. I was declared elected to the Bihar State Assembly 
defeating appellant by a margin of 35 votes. In the counting, Returning 
Officer rejected 90 ballot papers as they were marked by a wrong seal. 
Appellant filed election petition on the ground of rejection of 90 votes cast H 
1113 
II 14 
SUPREME COURT REPORTS 
[2003] 2 S.C.R. 
A in his favour, ignoring the instructions of Election Commissioner and also 
ignoring provisions of law. The petition was dismissed by the High Court. 
Hence the present appeal. 
Allowing the appeal, the Court 
B 
HELD: I. I. From the relevant provisions viz. Rules 39 and 56 of the 
Conduct of Election Rules, 1961, it is clear that the ballot paper is liable 
to he rejected in case it bears a mark made otherwise than by th'e 
instrument supplied for the purpose i.e to say if the mark has been made 
by an instrument supplied by the polling staff, the ballot paper would not 
C be liable to be rejected. (1119-Fl 
1.2. Election Commission has very clearly instructed the Returning 
Officer that if the Presiding Officer or the polling staff had by mistake 
supplied the distinguishing mark stamp to voters, the ballot papers so 
marked should not be rejected. It was further directed to review the 
D matter and scrutinize those 90 ballot papers on merits and count them in 
favour of the candidate for whom they are validly marked. Ho'l\'.ever, the 
Returning Officer passed the order rejecting 90 ballot papers and declared 
the result. The order does not indicate at all if the Returning Officer had 
made any enquiry whatsoever from anyone regarding the fact of supply 
E of distinguishing mark stamp by mistake of the Presiding Officer or any 
of the polling officer. It is not at all indicated as to on what basis the 
Returning Officer "felt satisfied" that it was not due to fault of Presiding 
Officer ,or any of the polling officer that wrong stamp was supplied. The 
Returning Officer has neither indicated nor shown to have made any effort 
to find out as to in what circumstances wrong stamp was put on only 90 
F ballot papers out of the 440 votes polled. (1121-B-F) 
G 
1.3. PWS, one of the Polling Officers who was assigned the duty of 
providing stamp for putting the mark on the ballot papers, has very clearly 
stated that after about one and half hours of commencement of polling, 
the rubber stamp provided by the Presiding Officer was taken back saying 
that it was not the proper stamp and another stamp was given for the 
purpose. In cross-examination he denied the suggestion that he was 
making a false statement at the instance of the petitioner. The reason 
assigned by the High Court for not accepting the statement of PWS is that 
no other person was examined to support his statement, does not seem to 
H be a cogent reason. Non-mention of the fact of providing a wrong stamp 
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H.S. PRASAD v. S.A. KHAN 
1115 
in the diary of the Polling Officer too, cannot be taken to be a valid reason A 
for not accepting the statement of PW5. 11121-F, G; 1122-A, BJ 
1.4. The Polling Officer may or may not have attached any special 
importance to the fact that initially for some time wrong stamp was used 
or ma
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