SURESH PRASAD YADA V versus JAI PRAKASH MISHRA & ORS.

Citation: [1975] 3 S.C.R. 21 · Decided: 13-12-1974 · Supreme Court of India · Bench: A. ALAGIRISWAMI · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

21 
A 
SURESH PRASAD YADA V 
v. 
JAI PRAKASH MISHRA & ORS. 
December 13, 1974 
[A. ALAGIRrsWAMI, v. R. KRISHNA IYER AND R. s. SARKARJA, JJ.] 
B 
Election Law-Recou/l/ of Ballot papers-Court, when justified in ordering 
c 
D 
E 
F 
G 
H 
recount. 
Condurt of Election Rules, Rules 38 (1) and 93(1 )-Custody of "Unused baliot 
papers" with District Election Officer a post-election custody-Opening of pacK'et 
and i11spec1i11g and coullfing of unused ballot papers, if illegal. 
In the election from 168-Katoria Bihar legislative Assembly constituency, 
the Respondent No. 1 was d1:clared elected having secured 16649 votes as against 
16074 polled by the appellant. 
The votes rejected as invalid were 12!9. The 
appellant filed an election petition challenging the election of the ret ned can-
didate on the ground that several irregularities and illegalities were committed in 
the counting of votes. The petition was resisted by the returned candidate. The 
High Court framed issues, recorded the evidence produced by the parties and held 
that the allegations had not been substantiated. 
It declined the request for a 
recount and dismissed the petition. Hence this appeal by the petitioner. 
I! was contended for the appellant: (i) Four unauthorised persons were 
aliowed to work as Counting Supervisors at tables 4, 5, 7 and 9 in breach cf the 
ru!es and this had vitia·'.ed the counting, (ii) When the fact, that, 50 unsigned 
ballot papers relating to polling station No. 74 were in excess of those actually 
polled, was brought to the notice of the Assistant Returning Officer, he, in violation 
of Rule 93(1) of the Ccindu:t of Election Rules and to cover up the irregularity, 
opened that packet and inspected those unused ballot papers; (iii) The detailed 
resultsheet prepared tablewise in accordance with the instructions of the Election 
Commission has been deliberately suppressed to prevent detection of mistakes and 
manipulations made in the counting, and (iv) Despite protest, 600 votes were 
counted twice in favour of Respondent No. I. 
Rejecting the contentions and dismissing the appeal, 
HELD : The court would be justified in ordering a recount of the ballot 
papers, only where : 
(I) the election-p,etition contains an adequate statements of all the 
material facts on which the allegations of irregularity or illegality 
in counting are founded; 
12) 
(3) 
On the basis of evidence adduced such allegations are prima facie 
established, affording a good ground for believing that there has 
been a mistake in counting and; 
the Court trying the petition is prima facie satisfied that the mak-
ing of such an order is imperatively necessary to decide the dis-
pute and to do complete and effectual justice between the parties. 
[23H; 24A-B] 
(i) There is not even an oblique hint in the election petition that any un-
authorised person was allowed to act as Counting Supervisor or Cou11ting Assistant. 
It was made at the stage of final arguments in the application seeking a recount. 
Questioning the Returning Officer and the Assistant Returning Officer in this re-
gard during cross-examination, could hardly constitute an adequate notice to the 
Respondent of this new plea. 
That apart, neither the petit'·Jne;· nor his chief 
Counting Agent alleged anything of this kind. 
All the four persons are Govt. 
G.fic ials. The fact that their names do not appear in Ex. 6 does not exclude the 
prob:1bility of their having been appointed and kept in reserve by a separate order 
or orders to act as counting Supervisors in case of need. That such appointments 
were made and a waiting list was prepared is disclosed in the evidence of the 
Returning Officer, and it receives further support from the evidence of R.W. 18 
22 
SUPREME COURT REPORTS 
[1975] 3 s.c.R. 
and R.W. 19. The circumstances of this case fully attract the maxim omnia prae-
sumumur rite esse acta, and it would be presumed that the aforesaid four persons 
were rightly and regularly appointed and admitted into the Counting Hall to act 
as Counting Supervisors, by the Returning Officer. 
On this score n.o violation 
of Rule 53 or any other statutory provision has been established. [24F-H; 24A-E] 
(ii) The act of the Returning Officer in opening the packet, and inspecting and 
counting the unused ballot-papers found therein, far from amounting to an ille-
gality, wa~ necessary for the due performance of the duty enjoined on him by 
the Rules.· The language of Rule 93 is clear enough to indicat

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