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Himachal Pradesh High Court · body

2000 DIGILAW 291 (HP)

JAGJIVAN PAL v. BIPIN SINGH PARMAR

2000-11-10

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.—The applicant-petitioner (hereafter referred to as the petitioner) has filed this application under Rule 93 of the Conduct of Election Rules, 1961 read with Section 151 Civil Procedure Code praying that the electoral rolls contained in sealed packets concerning polling stations, 9-Panpari-l, 10 - Panpari (2), 13 Raipur, 21-Kural (1), 22-Kural (2), 44-Daroh (1), 58 Chhanchhri Khaira - (4) and 19-Nanoon relating to 1998 Vidhan Sabha Elections of 45 Sulah Legislative Constituency may be opened and copies of the same may be supplied to the petitioner on the admissible charges. 2. The petitioner has claimed in the application that in view of the Exhibits P-17 to P-47, it is proved that S/Sh. Rajinder Singh, Tinu Ram, Kanshi Ram, Karam Singh, Hari Singh, Udham Singh, Nihar Singh, Tulsi Ram, Durga Dass, Parma Nand, Smt. Kunga Devi, Smt. Begum Devi, Onkar Nath, Dumnu Ram, Narinder Kumar, Hukam Singh, Prakash Chand, Kalyan Singh, Gian Singh, Rakesh, Smt. Shakuntla Devi, Mast Ram, Kirlu Ram, Bhompa Ram, Smt. Jeevan Devi, Janak Singh, Meenak Ram, Smt. Sarita Devi, Smt. Kanti Devi, Sh. Kulbir Singh, Nasib Singh are dead. It is further averred that there had been irregularities at the time of voting and the votes have been shown to have been cast by dead persons and in order to prove these averments, this Court may direct that the sealed packets containing the relevant elector rolls may be ordered to be opened and copies thereof be supplied to the petitioner to enable him to prove his case. 3. The non-applicant, respondent No. 1 (hereafter referred to as the contesting respondent) has resisted the application and in his written reply, has denied the allegations made in the application. It has also been averred that the marked copies of the voters list cannot be opened or inspected unless and until a strong case is made out for its opening and the petitioner has led no evidence to show that ,the votes of dead persons were polled. It has further been averred that the marked copies of the voters list cannot be inspected/opened merely on the asking and the petitioner wants to make a roving and fishing enquiry in the matter which is impermissible in law. 4. I have heard the learned Counsel for the parties and have also gone through the relevant material on record. 5. It has further been averred that the marked copies of the voters list cannot be inspected/opened merely on the asking and the petitioner wants to make a roving and fishing enquiry in the matter which is impermissible in law. 4. I have heard the learned Counsel for the parties and have also gone through the relevant material on record. 5. Rule 93 of the Conduct of Elections Rules, 1961 classifies the documents relating to the conducting of elections into two groups, viz. (i) the documents which cannot be produced/inspected by anyone save and except with the orders of a competent Court and (ii) other documents which can be inspected and copies whereof can be obtained on application. By this application, the documents sought to be opened and copies whereof have been prayed for, are the marked electoral rolls kept in sealed packets. Thus, the concerned documents are of the (i) category supra and, therefore, cannot be opened/inspected without the orders of the Court. Evidently, these provisions have been made to ensure secrecy of voting process, therefore, even the competent Court cannot order opening and inspection of the documents of the (i) category as a matter of routine and without strong compelling reasons being shown to do so. By now it is well established that before a Court can order inspection of ballot papers/marked electoral rolls, certain conditions must be satisfied. The secrecy of such papers should not be allowed to be violated on flimsy allegations. The ground(s) on which such a relief is claimed must be specific and supported by facts and there must be primary satisfaction of the Court about the truthfulness of the ground(s) pressed into service, meaning thereby that the applicant has to lay a strong foundation to succeed. The Court in exercise of its powers under Rule ibid cannot permit the applicant to indulge in a roving inquiry to fish out materials. 6. In Bhabhi v. Sheo Govind and others, AIR 1975 SC 2117, the Apex Court while dealing with the subject under reference, held as under:— "15. The Court in exercise of its powers under Rule ibid cannot permit the applicant to indulge in a roving inquiry to fish out materials. 6. In Bhabhi v. Sheo Govind and others, AIR 1975 SC 2117, the Apex Court while dealing with the subject under reference, held as under:— "15. Thus on a 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 statements of material facts; (3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount; (4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance 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. If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper. 7. Similarly, in Hari Ram v. Him Singh and others, AIR 1984 SC 396, the Honble Supreme Court held as follows:— 5. If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper. 7. Similarly, in Hari Ram v. Him Singh and others, AIR 1984 SC 396, the Honble Supreme Court held as follows:— 5. 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 High Court erred in allowing the prayers of the respondent and acted against the settled principles as extracted above. 6. 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 the 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. Further more, in the case of Ram Sewak Yadav v. Hussain Kamil Kidwai, (1964) 6 SCR 238 : AIR 1964 SC 1249, 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 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 rejected; (c) the packets of the marked copy of the electoral roll or as the case may be the list maintained under sub-section (1) or subsection (2) of Section 152; and (d) the packets of the declaration by electors and the attestation of their signatures : shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the order of a competent 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. (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) or Rule 84 shall be furnished by the Chief Electoral Officer of the State concerned on payment of a fee of two rupees for each such copy The rule makes a clear distinction between ballot papers and other election papers; ballot papers may be inspected only under the order of a competent Court or Tribunal but other documents are, subject to certain conditions, open to public inspection." The Court further observed:— "The Returning Officer is not a party to an election petition, and an order for production of the ballot papers cannot be made under Order 11 Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers..... An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled: (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support 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 necessary. 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." 7. A perusal of this rule clearly shows that the Legislature intended to make a clear distinction between one set of documents and another. The case of the petitioner must be set out with precision supported by averments of material facts." 7. A perusal of this rule clearly shows that the Legislature intended to make a clear distinction between 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 documents unless the Court was fully satisfied that a cast-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) could be liberally allowed to be inspected." 8. In the case in hand, the petitioner has prayed for opening of the sealed packets containing marked electoral rolls and to supply him the copies thereof on the ground that the aforesaid dead persons are shown to have cast their votes as per such lists. The relevant allegations have been pleaded vide para 11 (ix) of the petition and the relevant portion thereof reads as follows: "11(ix)......It is submitted that: (a) that 31 votes were shown to have been polled by those persons who were dead; (b) that 7 voters were in military service and they have been shown to have cast their vote; (c) that 139 persons were not available for polling, either they were ill or outside the constituency, in service but their votes have been shown to have been polled; (d) that two voters cast their votes at two places in the Sulah constituency. In view of the above facts, 179 votes were found which were void because of the reasons given hereinabove. By this, the result of the election in favour of respondent has been materially affected and against the petitioner." 9. A bare perusal of the verification part of the petition reveals that the contents of para 11 (ix) of the petition have been verified to be true not on the basis of personal knowledge of the petitioner but on the basis of "information received and believed to be true." It is no doubt prima facie shown on the basis of the material which has by now come on the record that the persons aforesaid who are alleged to be dead are dead. However, despite the fact that the evidence of the petitioner is almost complete, there is no evidence on the record to be prima facie satisfied that votes were cast in the name of the aforesaid dead persons. It is not disclosed even in the statement of the petitioner as to who gave information to him about the casting of fictitious votes in the name of the said dead persons nor any such informant has been examined. The names of the dead persons in whose names the fictitious votes are alleged to have been cast are not mentioned in the petition. No contemporaneous record or written objection(s) having been made in this regard at the relevant time has been produced. Thus there is no material on the record to show prima facie that fictitious votes were cast in the name of the aforesaid dead persons. The petitioner, therefore, has not been able to make out a case to allow even sample inspection of the marked electoral rolls muchless to direct supply of copies thereof to him. 10. As a result, this application merits dismissal and is accordingly dismissed. 11. The observations made hereinabove are strictly for the purpose of disposal of this application and nothing contained therein shall be construed as an expression of opinion on the merits of the case. Application dismissed.