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2002 DIGILAW 595 (KER)

A. Prabhakaran v. Surendran Nair

2002-09-10

K.A.MOHAMMED SHAFI

body2002
Judgment :- This C.R.P. is filed by the respondent in O.P.35/2000 on the file of the Munsiff’s court. Hosdurg challenging the order in I.A.864/2002 dated 13.6.2002. That O.P. was filed by the respondent herein under Section 89 of the kerala Panchayat Raj Act 1994 seeking decree for re-counting the ballot papers, for declaration that the election of the respondent- revision petitioner herein from No.6 Nayikayam Constituency is invalid and for declaration that the petitioner in the O.P. was declared elected in the place of the respondent and other allied reliefs. 2. The petitioner in the O.P. caused to produce certain documents as per the order in I.A.864/2002 including marked copy of the electoral roll as well as counter-foils of used ballot papers in respect of certain booths and wards in the Grama Panchayath. Thereafter the petitioner in the O.P. filed the above petition seeking permission for the petitioner’s counsel to inspect the documents produces before the court and in the custody of the court. By the impugned order the lower court allowed the petition. This C.R.P. is preferred by the respondent in the O.P. challenging that order. 3. The revision petitioner has contended that by seeking inspection of the counter-foils of the ballot papers and the electoral roll the respondent intends to make a roving enquiry into the matter in order to fish out materials to set aside the election in favour of the revision petitioner. He has also contended that secrecy of ballot and purity of election should be preserved and that count also the respondent cannot be permitted to inspect the documents produced in court in this case. 4. The lower court has extracted the documents sought to be examined by the respondent as stated in the above I.A. in the impugned order and permitted the counsel for the respondent to inspect the documents mentioned in item Nos.1,2 and 4 of the petition in the presence of revision petitioner’s counsel and Junior Superintendent of the court. 5. It is specifically alleged in the O.P. by the respondent that several persons mentioned in the O.P. have cast double votes which invalidated the votes cast by them. Therefore, the respondent has contended that he has made specific allegations. 5. It is specifically alleged in the O.P. by the respondent that several persons mentioned in the O.P. have cast double votes which invalidated the votes cast by them. Therefore, the respondent has contended that he has made specific allegations. In the O.P. and in order to substantiate those allegations those documents were cause produced and inspection of those documents by the counsel for the respondent is absolutely essential for the trial of the issues involved in this case. The lower court accepted the contention of the respondent negativing the objections raised by the revision petitioner and allowed the petition as aforestated. 6. The counsel for the revision petitioner vehemently argued that inspection of marked electoral rolls and counter-foils can be allowed only very sparingly and when sufficient material is placed before the court. In support of this contention he has relied upon the decision in Hari Ram V. Hira Singh (AIR 1984 SC 396) wherein the Supreme Court has observed as follows: “It is now well settled by along course of decisions of this court that inspection of ballot papers and counter-foils should be allowed very sparingly and only when it is absolutely essential to determine 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 elections.” 7. It has to be noted that the above ruling of the Supreme Court has no application to the facts of this case. The respondent has not made any prayer for inspection of the used ballot papers in this case. He only wanted the inspection of the marked electoral roll and counter-foils of the used ballot papers. Moreover, in the petition itself the respondent has given details of the persons alleged to have cast double votes whereby nullifying their votes. Therefore the lower court is perfectly justified in finding that the above ruling of the Supreme Court has no application to the facts of this case. 8. The revision petitioner has further contended that secrecy of the ballots and purity of election will be violated if the respondent’s counsel is permitted to inspect the documents as contended by him. This contention is also rightly repelled by the lower court. 9. 8. The revision petitioner has further contended that secrecy of the ballots and purity of election will be violated if the respondent’s counsel is permitted to inspect the documents as contended by him. This contention is also rightly repelled by the lower court. 9. In the decision in A. Neelalchithadasan V. George Mascrene (1994 AIR SCW 2198) the Supreme Court has observed as follows: “It was observed by this court in Raghbir Singh’s case (supra) at page 1320 (of SCR) : (at p.1372 of AIR) as follows: ‘Secrecy of ballot though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections, viz., purity of election. They can co-exist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play.’ 10. In view of the above it is the settled position that out of the two competing principles, the purity of election principle must have its way. Section 94 of the Act cannot be pressed in to service to suppress a wrong coming to light and to protect a fraud on the election process”. 11. Therefore, in view of the fact that double voting makes the vote cast ab initio void, the principle of secrecy of ballot cannot stand in the way of bringing to light the alleged fraud perpetrated by double voting in the larger interests of the public and the purity of elections. Hence this contention raised by the revision petitioner is also rightly repelled by the lower court. 12. Hence this contention raised by the revision petitioner is also rightly repelled by the lower court. 12. In the decision in Sunil Kumar V. K.Sudhakaran (1992(2) K.L.J. 483) this Court has held that in a case wherein the dispute is that some voters had cast more than one vote and that there was impersonation in voting and thus the votes had been cast against Section 62(1) of the Act and therefore void votes, in order to detect the valid nature of the ballot papers it is absolutely necessary to persue the ballot papers with utmost safeguard to protect the secrecy of ballot papers. 13. It is clear from the contentions raised by the revision petitioner and the respondent in the O.P. and the above petition that in order to secure the purity of voting and in the larger public interest, inspection of the marked copy of the electoral rolls and the counter-foils of used ballot papers sought for by the respondent is necessary and the lower court is perfectly justified in allowing the petition. Therefore, I find no ground to interfere with the impugned order passed by the lower court. Hence the impugned order is confirmed and the C.R.P. is dismissed.