"932 HARI RAM ’. HIRA SINGH & ORS.. “November 25, 1983
[S. Murtaza FAZAL. AL, Oo. CHINNAPpA REDDY. . AND E.S. VERNKATARAMIAH, JJ. ] .
Election Law—Secreey and Sacrosanct nature and maintenances thereof— In an election petition, whether a court, on an interlocutory application pass an ‘order directing the Returning Offler to produce the marked electotal Rolls for inspection and allow the election petitioner fo inspect the counterfoils—Conduct of Election Rules, 1961, Rale 93 rea: J with Section 165 0 f the Evidence Act.
“. In, the election held for the Metropolitan ‘Council from the, Narela Constituepcy, the appellant Hari Ram secured 12 369 votes” and’ was declared elected. The respondent Hira Singh who secured 12,131 votes filed an election petition before the Delhi High Court making a number of allega- . tions against the appellant. He preferred an interlocutory application praying. - for a diréction to the Returning Officer to produce the marked: electoral rolls for inspection and also for allowing inspection of the counter-foils: The High’
-Court granted both the prayers and hence this appeal. .. Allowing the appeal, the Court.
HELD : I. | Before allowing the prayers at an interlocutory stage, the
High Court must examine whether proper foundation was laid for inspection
_ and sufficient materials placed before it and pass an order which would result in adversely affecting the secrecy and ‘sacrosanct natuze of the electoral .process, Inspection Of ballot papers and counterfoils should be allowed very "-sparingly and only when it is absolutely essential to determine the issue. In the garb of seeking inspection, the defeated candidate should not be allowed
_to make a roving inquiry inorder to. fish out materials to set aside the election.
. ‘ : oe
| Bhabhi v. Sheo ‘Govind and Ors., [1975] Supl] SCR 202, followed. ” 1.2 The approach of the High Court, in the. instant case, at the very outset was legally incorrect. It was under ‘a wrong impression that it- had ample powers to ditect production of any document under Section 165 of the: . “Indian Evidence Act and over-looked the fact that. the. Representation of . |
People Act was a special Act and provisions of the Evidence Act or the Code of Civil Procedure would-only apply where they-are not excluded. (935° D-E]
| 2. 1 A perusal of Rule 93 of the Conduct. of Election Rules, 196t- Clearly shows that the Legislature intended to make a clear distinetion between
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(934.4-C] °
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HART RAM V. HIRA SINGH (Fazal Ali, J.) "933.
one set of documents and another. So far as the counterfoils and the marked copy of the electoral rolls were concerned, there was a strict prohibition for opening these documerits unless the court was fully satisfied, that a cost iron case was made out for the same; whereas documents mentioned in clauses (a)-
* and (b) of Sub Rule (2) of Rule 93 (as amended) eould be Jiberally allowed t to be inspected. (937 DE]
Ram Sewak Yadav ¥. Huisain Kamil Kidval & Ors, 1196416 SCR 238; . applied.
2.2: In the instant case, the attempt of the respondent sertonty te for. inspecting marked electoral role by making vague allegations was nothing but to fish out material for challenging the election of the appellant and it ‘Clearly : . ‘violated the sanctity and secrecy of the electoral process. (937 GS] ‘
Cw ApPELLATE. JURISDICTION : Civil: Appeal Nos.° 10062 & 10063 of 4983. an a og
_ Appeals by Special leave from the Judment and Order dated’ the 8th September & 19th September, 1983 of the Delhi High Court in Election Petition No. 2/83. 7
. FS: ‘Nariman, S. P. Pandey and”. N. N. Agarwal for the: - Appellant.
s. N. Marhva and K. C. Dua for the Respondent, " The Judgment of the Court was delivered by
’ Fazat Aut. J. By an Order dated 15th November, 1983 we had allowed the appeal of the appellant and set aside the order of: the High Court without making any order as to costs. This election peal arises out of an interlocutory by order passed _ by the Delhi * High Court on an application given by the respondent for directing .the Returning Officer to produce the marked electoral rolls for inspec- ‘tion. The Court also granted further prayer of the respondent for allowing inspection of the counterfoits. The High Court granted both the. prayers and - ‘hence this appeal. | _ ;
The appeal arises out of the election held for the Metropolitan Council . from the Narela Constituency. As a result of the -poll the . ~ appellant Hari Ram secured 12369 votes and Hira Singh (respondent) - 12131 votes; Thus the appellant was declared elected. The respondent-petitioner had made a number of allegations against. the ‘ appellant but in the present appeal we are only: concerned with the
: interlocutory prayer made by. the respondent for inspection of
_ marked electoral rolls and the counterfo, ils.
934 0 SUPREME COURT REPORTS (1984) sR,
In support of the appeal, Mr. Nariman submitted that the High Court gravely erred in allowing the prayers at -the interloeutory stage without examining whether proper foundation avas laid for inspection and sufficient meterial placed before the Court in order - to allow the prayer which would result in adversly affecting the secrecy and sacrosanct nature of the electoral process. In our opinion, the contention of the appellant is well founded and miust prevail.
srr . It is now well ‘settled - by a Jong course of decisions of this Court that inspection of ballot papers and -conterfoils should be allowed véry‘sparingly and only when it is absolutely essential to -
- detetmine the issue. This Court has further laid down that in the garb of seeking inspection. the defeated candidate should not be |
"allowed to make a roving inquiry in order to fish out’ materials to set aside the election. In the case of Bhabhi v. Sheo Govind & Ors.(*) this
Court clearly observed thus:—"
“Thus ona close and careful consideration of, the: various authorities of this Court from time to time’ it is manifest that the following conditions are imperative
‘before a Court can grant inspection, or:for that matter sample inspection, of the ballot papers :
(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed — to be violated’ on frivolous, ‘vague and indefinite allegations} .
(2) That before inspection is allowed the allegations made against the elected’ candidate must be clear and specific and, must be supported by adequate 7 statements of material facts;
aes aae one
(5) That the discretion conferred on the Court should not be exercised in such a way soas to enable the applicant to indulge in a roving inquiry with a view . to fish (out) materials for declaring the election to be void; and ~. (1% [1975] Suppl. S.C.R. 202.
. HARI RAM J, HIRA SINGH (Fazal Ali, J) 935
(6) That on. the special facts of a given. case sample inspection may be ordered to lend further ‘assuratice: to the prima facie satisfaction of the Court regarding the truth of the allegations made for. a -recount, and ‘Not for the purpose of fishing out materials.” °
_ After going through the judgment of “the High Court and the application .of the respondent-petitioner for inspection of the- documents concerned, we are satisfied that no case for inspection was at all made out and the the High Court erred in allowing the.
prayers of the respondent and acted against the settled 4 principles as " extracted above. >
To begin with, the High Court seems to have. been under the
- impression that the Court had ample powers to direct production of .-
-any document under section 165 of the Indian Evidence Act. In doing so with due‘deference, the High ‘Court overlooked that the Representation of People Act was a special Act and provisions of ” the Evidence Act or the Code of Civil Procedure would only apply where they are not excluded. Thus, at the very outset, with due |
“respect, the approach of the High Court was legally incorrect. Furthermore, in the case of Ram Sewak Yadav v. Hussain Kamil Kidwai & Ors.(*) this’: Court while interpreting the provisions of Rule 93 of the Conduct of Election Rules, 1961 framed under the Act, made the following observations:+-
By. rule 93 of the Conduct of Election Rules, 1961, it is Provided that:
“( 1) While i in the custody of the returning officer— - _ a) the packets of unused ballot papers;
(b) the packets of used ballot papers whether valid, ° . , tendered or rejectedy
() ‘the packets of the marked copy of the electoral .
. roli or, as the case may be, the. list maintained under. sub-section @ or t sub-section @) of section 152; and -
~. ) [1964] 6 5.CR 28.
.
936 SUPREME court REPORTS, . “i984 1s.
- a . d) the packets of the declarations by electors and 4° | i A. the attestation of their signatures; am > shall not be opened and their contents shall not be inspected by, or produced before, any person ~ or authority except under the order or a compe . B . ° ° tent court or tribunal.
-(2) All other papers relating to the election shall be .
_-open to public inspection subject to such conditions-.
. and to the payment of such fee, if any, ‘as the Election Commission may direct.
* (3) Copies « of the returns by the. returning officer forwarded under rule 64 or as-the case’ ‘may be under — sub- rule (3) of rule 84 shall be furnished by the chief . ‘electoral officer of the State concerned on payment of a } En a fee of two. rupees f for’ each such copy.
The rule makes a clear distinction between ballot a papers and other election papers; ballot papers may be. | , inspected only under the order of a competent court or | E . tfibunal, but other documents are, subject to certain ~ ; : conditions, open to public inspection.”
a
‘The Court further observed :
. “The Returning Officer is. ‘not a party-to an election :
F _ petition, and an order for production. of the ballot’ © =: &:
" * + papers cannot. be made under O.11 Code of Civil we
Procedure. But the Election Tribunal is not on. that’ - aA.
“account without authority. in respect- of the ballot. , a - papers. In a proper case. where the interests of justice
G - demand it, the Tribunal may call upon the Returning
- Officer to produce the ballot papers and may permit inswo pection by the. parties before it of the ballot papers...
Ani order for inspection may not be granted asa _ 7 #H E. matter of course: having regard to the insistence upon 4 - a the segrecy of the ballot papers, Court would be justified © in granting - an order for inspection provided two con- ditions are fulfilled: . ;
HARI RAM ¥. HIRA SINGH (Fazal Ali, Wo 987,
(i) | that the petition ‘for settingsaside an election contains ; . an adequate statement of the materiel facts on which + the petitioner relies in suppport of. his case; and
(ii) the Tribunal is prima. facie satisfied that in order to : decide the dispute and to do complete justice between the parties inspection of the ballot papers is neces- An order for inspection of ballot papers’ cannot. be granted to support vague pleas made in the petition not supported by material facts-or to fish out evidence to » support such pleas, The case of the petitioner must “be set out with precision supported by averments of material facts.”
A_ perusal of. this rule clearly shows that the Legislature in- » tended to make a clear distinction between one: set of documents ‘and another. So far as the counterfoils and the market copy of. the electoral rolls were concerned, there was a strict prohibition for
- opening ‘these documents unless the Court was fully satisfied that a . cast-iron case was made out for the same; whereas documents men-. ‘tioned i in clauses (a) & (b) of sub-rule. 2- of Rule 93 (as: amended)
could be liberally allowed to be inspected.
We are afraid thatthe High Court has not kept these principles in view while. allowing the prayers . of the’ respondent.- The main ground put forward by ‘the respondent was. that ‘there. were a number of dead ‘persons for whom also votes were cast, _ Despite this allegation no details and particulars were given nor was.it' evea mentioned whether the Polling Agent of the respondent had-made any note of the fact that votes were actually cast for dead ‘persons and the number of these votes, The allegations made by . the respondent-petitioner in: his application for inspection are -frights fully vague.’ There is no allegation as to whether any vote was cast _~ for the dead persons and this is what the respondent sought to find , . out by inspecting the marked electoral rolls. ‘It is manifest that’
‘this. attempt of .the responent was nottiing but to fish out -the - material for challenging the election of the appellant and’ it clearly violated the sanctity: and secrecy of the electoral process. Thus, the. .
High Court was clearly wrong in allowing such prayers for inspection. As'far as the inspection of counterfoils, was concerned, even the jogpondent did not press for the same realising that he had not : made nit any strong case for such. an action, :
938 mo SUPREME courr REPORTS a [1984] 1 s.c.r.
“For the reasons given above, we, therefore, allow the appeal and set aside the order of the High Court dated 19th September,
1983 and reject the prayers for inspection. of marked rolls and counterfoils. There will be no order as to costs.
SR. - 7 - Appeal allowed
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