Mechanical recount must credit wrongly packed votes to the candidate; no recrimination notice needed where validity is undisputed.
Where a recount is confined to mechanical physical counting, votes admittedly cast for a candidate but wrongly placed in another packet must be credited to that candidate without a notice of recrimination under Section 97, because no fresh inquiry into vote validity is involved. A packing error does not justify excluding such votes from the candidate's total. The objection that postal ballot papers were printed in Hindi under Rule 22 of the Conduct of Election Rules, 1961 also failed, as no material showed that the irregularity materially affected the result. On a proper recount, the disputed votes belonged to the appellant and the election petition could not succeed.
Issues: (i) Whether, in a recount confined to a mechanical physical count, votes admittedly cast for the appellant but mistakenly placed in another candidate's packet could be credited to the appellant without a notice of recrimination under Section 97 of the Representation of the People Act, 1951; (ii) Whether the alleged irregularity in printing postal ballot papers in Hindi contravened Rule 22 of the Conduct of Election Rules, 1961 so as to materially affect the result.
Issue (i): Whether, in a recount confined to a mechanical physical count, votes admittedly cast for the appellant but mistakenly placed in another candidate's packet could be credited to the appellant without a notice of recrimination under Section 97 of the Representation of the People Act, 1951.
Analysis: The recount ordered by the High Court was directed to the physical counting of valid votes already cast for the candidates and did not require a fresh inquiry into the validity of the votes. The 250 ballot papers in question were never in dispute as votes for the appellant; they had merely been wrongly included in another candidate's packet because of a packing error. Crediting them to the appellant was part of the mechanical process of ascertaining the true total of votes received by each candidate. Section 97 becomes relevant only when a candidate seeks the further declaration that some other person should be treated as duly elected after the returned candidate's election has been found void. That stage had not been reached, and no challenge to the validity of those votes was involved.
Conclusion: The 250 votes had to be counted in the appellant's total, and no notice of recrimination under Section 97 was necessary; the High Court was in refusing to do so.
Issue (ii): Whether the alleged irregularity in printing postal ballot papers in Hindi contravened Rule 22 of the Conduct of Election Rules, 1961 so as to materially affect the result.
Analysis: The objection regarding the language of the postal ballot papers had been raised before the High Court and was not shown on the material before the Court to have materially affected the election result. The irregularity, even if assumed, did not furnish a basis for upsetting the election.
Conclusion: The objection under Rule 22 failed and did not affect the result of the election.
Final Conclusion: On a proper recount, the appellant was entitled to the benefit of the disputed votes, and the election petition could not succeed against him.
Ratio Decidendi: Where a recount is limited to the mechanical ascertainment of votes admittedly cast for a candidate, mistakenly bundled votes must be credited to that candidate without invoking recrimination under Section 97.
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