IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No.  1539     OF 2012

@ SLP No. 30410 OF 2010

Markio Tado ...   Appellant

Versus

Takam Sorang & Ors. ...         Respondents

J  U  D  G  E  M  E  N  T

H.L. Gokhale J.   

Leave granted.

2. This  appeal  is  directed  against  the  Judgment  and  Order  dated  

14.9.2010 passed by a Learned Single Judge of Gauhati High Court in Misc. Case  

(E.P.) No. 05(AP)/2010 in Election Petition No. 01(AP)/2009 whereby the High Court  

has allowed the Interlocutory application filed by the first respondent herein, and  

directed  the  District  Returning  Officer,  Distt.  Papum Pare,  Arunachal  Pradesh  to  

produce the record of Register of voters’ counterfoils (in Form 17A) of 38 polling  

stations of 13-Itanagar (ST) Assembly Constituency in that State.

Brief facts leading to this appeal are as follows:-

3. The appellant and the respondent No. 1 herein contested the election  

to  the  Arunachal  Pradesh  Legislative  Assembly  from  20-Tali  (ST)  Assembly  

Constituency held  in  October  2009, wherein  the appellant  was declared elected,  

defeating his nearest rival respondent No. 1, by 2713 votes.  Respondent No. 1 filed  

Election  Petition  No.  01/2009  to  challenge  the  election  of  the  appellant  on  the  

ground  of  corrupt  practice  of  booth  capturing.  This  20-Tali  (ST)  Assembly  

Constituency consists  of  two circles  viz.  (i)  Tali,  and (ii)  Pipsorang.  Each of  the  

circles was having 10 polling stations.  The voting had taken place on 13.10.2009.  

It was alleged that on two polling stations viz. (i) 7-Roing and (ii) 2-Ruhi from circle  

Tali, boxes (containing EVMs) were illegally removed by the party workers of the  

appellant, and votes in favour of the appellant were cast by a single hand.  The  

common  voters  were  not  allowed  to  exercise  their  voting  rights  as  they  were  

threatened for their lives by the miscreants of the appellant.  It was claimed that  

polling agents of the first respondent at these two polling stations jointly reported  

about  the  happenings  in  these  polling  stations  on  15.10.2009  to  the  Assistant  

Returning Officer.  It  was alleged that such incidents  also took place on 6 more  

polling stations.  In para 9 of the petition, it was stated that, it was necessary to  

bring the EVMs and counter foils of Form 17A (register of voters) of these 8-polling  

stations (mentioned in para-7 of the petition) for forensic test and other examination  

etc. before the Hon’ble Court for proper adjudication of the case.  It was stated that  

the votes received by the appellant in these 8 polling stations were 3763, and if they  

were deleted from the votes of appellant, the first respondent would be declared as  

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elected.  It was prayed that the records of (i) register of voters counterfoils (Form  

17-A) of these 8 polling stations described in paragraph 7 of the petition, (ii) EVMs  

of  these  8  polling  stations,  and  (iii)  records  relating  to  20  Tali  (ST)  Assembly  

Constituency be called, and appellant be directed to show cause as to why those  

votes cast by booth capturing in 8 polling stations in favour of the appellant should  

not be declared as illegal, and the election order dated 22.10.2009 be not declared  

as void, and why the respondent No. 1 should not be declared as elected candidate.

4. The appellant contested this petition by filing a Written Statement.  He  

submitted that no unfair means were employed by him, or by his agents, and stated  

that the allegation of illegal practice adopted in 8 polling stations is completely false.  

He submitted that the election was conducted peacefully with free and fair means.  

The  polling  stations  were  guarded  by  police  personnel  who  carried  arms  and  

ammunitions.  There was no booth capturing or criminal intimidation at all.  EVMs  

and voters’ counterfoils were duly verified at the Receiving Centre, and there was no  

need to call for any of these documents, nor was there any question to declare the  

election void.

5. The learned Judge framed the necessary issues on 8th March, 2010  

including  as  to  whether  the  EVMs were  illegally  removed,  whether  any  election  

offence of booth capturing and criminal intimidation was committed, whether the  

election was liable to be declared void under Section 100 of the Representation of  

the People Act, 1951 (“Act of 1951”  or the said Act for short) and whether the first  

respondent was entitled to be declared as duly elected?

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6. Before the evidence could start, the first respondent filed Interlocutory  

Application No. 6/2010 in the said Election Petition on 29th March, 2010.  In para 1  

thereof he submitted as follows:-

“1. That your applicants  beg to state and submit  that   some thousand of voters of those 8 polling stations viz. (i) Giba,   (ii)  Tungmar,  (iii)  15-Richik,  (iv)  7-Roing,  (v)  10-Yarda,  (vi)  5- Guchi,  (vii)  8-Dotte,  (viii)  2-Ruhi  of  20  Tali  (ST)  Assembly   Constituency have double entry in different 38 polling stations of   13-(ST) Itanagar Assembly Constituency.  So far your applicant   knowledge is concerned about 80% of the voters of 20-(ST) Tali   Assembly  Constituency  from those 8  polling  stations  viz.  (i)  6- Giba,  (ii)  4-Tugnmar,  (iii)  15-Richik,  (iv)  7-Roing,  (v)  10-Yarda,   (vi) 5-Guchi,  (vii)  8-Dotte,  (viii)  2-Ruhi have cast their votes at   13-(ST) Itanagar Assembly Constituency and not at 20-(ST) Tali   Constituency.”

Thereafter,  he  gave  the  list  of  38  polling  stations  of  Itanagar  

constituency.  He claimed that the total number of such voters who had their names  

in those 38 polling stations was 1304.  He, therefore, prayed that the record of  

register of voters counterfoils (Form 17-A) of the above 38 polling stations of 13-

(ST)  Itanagar  Assembly  Constituency  from  the  District  Returning  Officer,  Distt.  

Papum Pare be called.

7. The  appellant  opposed  this  application.  The  learned  Single  Judge  

noted  the  submissions  on  behalf  of  the  respondent  No.  1.   He  also  noted  the  

submissions  on  behalf  of  the  appellant  that  there  was  no  allegation  of  double  

enrollment, and no issue had been framed in this respect in the election petition,  

and  therefore  the  application  was  liable  to  be  dismissed.   Having  noted  the  

submissions,  the learned Single  Judge rejected the said application  by his  order  

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dated 31.03.2010 observing “I am of the considered view that calling of records as  

sought for by the applicant is not justified at this stage.”

8. Thereafter, the evidence was recorded.  The first respondent went into  

the witness box on 4th April, 2010 and in his examination in chief, he stated that he  

had  sent  a  fax  message  to  the  Returning  Officer  of  20-Tali  (ST)  Assembly  

Constituency  on 15.10.2009 alleging  the booth  capturing  of  2-Ruhi  and 7-Roing  

polling stations.  He stated that he had complained about the booth capturing in 6  

more polling stations and produced copies of complaints.  He stated that there was  

single  handed  voting  in  favour  of  the  appellant,  and  respondent’s  voters  were  

threatened and not  allowed to cast  their  votes.   He further  stated that a  large  

number of voters had double entries in the electoral roll of 20 Tali (ST) as well as  

Itanagar  (ST)  Assembly  Constituency.   They had actually  cast  their  votes at  38  

different polling stations of 13-(ST) Itanagar Assembly Constituency, and in their  

place votes were cast in Tali Constituency by the miscreants of the appellant.  The  

electoral rolls of the two constituencies were to be exhibited.  He further pointed out  

that a vote was cast against a dead person by name Markio Tama from 2-Ruhi  

polling station and the death certificate of the person concerned was produced.

9. In  his  cross  examination  on  9th June,  2010,  the  first  respondent  

accepted that he had not made any averments in the election petition regarding  

double enrollment of the voters in the two Assembly Constituencies.  He accepted  

that he was aware that the final electoral rolls were published by the authorities  

concerned before the election was held, prior to which the draft roll was published  

for information of the voters concerned, and that he did not lodge any complaint  

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before  the  authorities  concerned  about  the  double  enrollment  in  the  two  

constituencies.  He explained it by stating that he did not know that such double  

enrollment had taken place.  He could not say who actually cast the vote for Markio  

Tama, who had already expired.  He accepted that he had appointed his polling  

agents for all the polling stations.  He knew about the duties of the polling agents  

which included raising objection in case of detection of any impersonation during the  

polling time, before the Presiding Officer concerned by filling up a prescribed form  

alongwith a fee of Rs. 2/-. He stated that his polling agents were not allowed to  

enter into the polling booths and the candidates appointed by the appellant acted as  

fake polling agents for the first respondent.  He however, accepted that he has not  

stated in election petition that the candidates appointed by the opposite party had  

acted as fake polling agents for him.  He further accepted that his complaint to the  

Returning Officer did not mention all the 8 polling stations. It mentioned only about  

2 polling stations.  He also accepted that he did not mention the names of persons  

involved in booth capturing.  The first respondent had alleged that in two polling  

stations viz. Ruhi and Roing, booth capturing had taken place which was on the  

basis that in Ruhi the first respondent got only 3 votes as against appellant getting  

697 votes and in Roing he got only one vote as against the appellant getting 1196  

votes.   On  this  aspect  it  was  put  to  him  that  there  were  two  circles  in  this  

constituency viz. Tali and Pipsorang.  The above two polling stations were in Tali   

Circle.  The first respondent accepted that the returned candidate secured no vote in  

11-Vovia polling station.  He also accepted that the returned candidate secured only  

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7 votes in 13-Zara polling station, both falling in Pipsorang circle.  Thereafter, he  

accepted that  

“It may be correct  that securing less vote by a candidate   may be due to his less attachment to the people of a particular   area  and it  may also be  the one of  the reasons for  losing  the   election.”

The  first  respondent  also  accepted  that  Micro  Observers  were  

appointed in all the polling stations and they were provided with digital camera for  

their use as and when required during election for all the purposes.   

10. It  was  at  that  stage  that  the  first  respondent  moved  another  

application viz. Mis Case No. 05(AP) of 2010 on 29th June, 2010.  In that application  

he repeated that some of the voters of the 8 polling stations mentioned earlier, had  

double  entries  in  different  38  polling  stations  of  13  Itanagar  (ST)  Assembly  

Constituency.  In para 2 he stated that 30% of voters of Tali Constituency from  

those 8 polling stations had cast their votes in Itanagar and not in Tali, and in their   

place the double voting was effected on behalf of the appellant, and therefore it was  

necessary to get the record of the voters’ counterfoils (in Form 17A) from the 38  

polling  stations  under  13-(ST)  Itanagar  Assembly  Constituency.   The  appellant  

opposed this application.  The counsel for the appellant submitted that this was a  

fishing inquiry to improve the case.  The learned Single Judge however observed:

“This  allegation  sounds  to  be  new one,  but  when  it  is   closely  examined,  it  also  comes  under  the  purview  of  booth   capturing  because  votes  by impersonation  is  one of  the  modus   operandi  adopted  towards  accomplishment  of  securing  votes  by   use of illegal method or illegal resource”.  

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11. The learned Judge referred to a judgment of this Court in Hari Ram  

Vs. Hira Singh reported in AIR 1984 SC 396, that electoral rolls and counter foils  

should be called sparingly and only when sufficient material  is placed before the  

Court.  He also referred to a judgment of this Court in Fulena Singh Vs. Vijoy Kr.  

Sinha reported in 2009(5) SCC 290 wherein it was held that inspection of register  

of voters in Form 17-A would be permissible where a clear case is made out.  The  

learned  Single  Judge  held  that  the  official  record  would  be  the  most  reliable  

evidence where there was impersonation, and thereafter passed the impugned order  

calling for the record of registers of voters counterfoils in form 17A of 38 polling  

stations of 13-(ST) Itanagar Assembly Constituency which order is challenged in the  

present appeal.

Submissions on behalf of the rival parties

12. Mr. Giri, learned senior counsel appearing for the appellant submitted  

that  the  learned  Judge  of  the  High  Court  clearly  erred  in  allowing  the  second  

application filed by the first respondent for the simple reason that he was making a  

roving and fishing inquiry.  Mr. Giri submitted firstly that if the respondent No.1 was  

concerned with the alleged double entries of the voters in the two constituencies, he  

ought to have challenged the double enrollment when the draft rolls were published.  

Secondly,  this ground of impersonation and double voting was not raised in the  

election  petition  at  all.   Then there were  no particulars  provided as  to whether  

anybody had seen the real voters not voting, and somebody else voting in their  

place.  Thirdly, he submitted that the application made by respondent No.1 earlier  

having been rejected, there could not be a second application for that very purpose.  

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Besides, impersonation or double voting would come in the category of ‘improper  

reception of votes’  which is a separate category of corrupt practice falling under  

Section 100 (1) (d) (iii) of the Act of 1951.  For invoking this ground one has to  

plead that the election was materially affected by such improper reception of votes  

which the first  respondent  had not done.   ‘Improper  reception’  is  different  from  

‘booth capturing’ which is a separate corrupt practice under Section 123 (8) read  

with Section 135 A of the Act of 1951.  The first respondent had filed the election  

petition only on the ground of booth capturing and not on the basis of improper  

reception of votes and he cannot be permitted to improve upon it from stage to  

stage.  The sanctity and secrecy of the electoral  process was important and the  

same could not be permitted to be violated.

13. Mr.  Rakesh  Dwivedi,  learned  senior  counsel  appearing  for  the  first  

respondent  on the other hand submitted that  the first  respondent  had filed the  

election  petition  on  the  ground  of  booth  capturing,  and  double  voting  or  

impersonation could be considered as facets of booth capturing.  The learned Judge  

could not be faulted for his order since impersonation is a link between the booth  

capturing  and  improper  reception.   If  purity  of  the  election  process  is  to  be  

maintained, and if the true result of the election is to be found out, the order which   

is impugned in the petition was a necessary order.

Consideration of the rival submission

14. The order impugned in the present appeal has been passed on the  

second application in this behalf which was Misc. Case No. 05(AP)/2010 filed on 29th  

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June, 2010 after the recording of the evidence of the first respondent.  It is material   

to note that in his evidence the first respondent did not dispute that he had not  

made any averment in the election petition regarding double enrollment of some  

voters of the two constituencies.  He also accepted that one has to object to such  

double  entries  when  that  draft  electoral  roll  is  published,  but  he  explained  his  

inaction in this behalf by stating that he did not know that such double enrollment  

had taken place.  With respect to impersonation, he cited the instance of only one  

person, namely Markio Tama who had expired, but he could not state as to who  

voted in his place.  He accepted that the polling agents have to object when such  

impersonation takes place, but explained inaction of his polling agents by saying  

that his polling agents were not allowed to enter into the polling booths and the  

candidates appointed by the opposite party acted as fake polling agents for him.  He  

however, accepted that such plea was not taken in the election petition.  He also  

accepted that his complaint about double voting was only about 2 polling stations,  

and that he did not mention all the 8 polling stations in his complaint.  He had to  

accept  that  he  did  not  mention  the  names  of  persons  involved  in  the  booth  

capturing.  The first respondent had emphasized the fact that in Ruhi he got only 3  

votes as against appellant getting 697 votes.  In Roing he got only one vote as  

against appellant getting 1196 votes.  He further had to accept that there were two  

circles in Tali constituency, namely, Tali and Pipsorang.  Ruhi and Roing were falling  

in Tali circle where appellant did get most of the votes.  As against that in Pipsorang  

circle the respondent No.1 got most of the votes.  Thus in Vovia polling station, the  

appellant  got  no vote  at  all  and if  we see  the  pleadings  we find  that  the first  

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respondent got 365 votes.  In Zara polling station, the appellant got only 7 votes as  

against 335 votes of the first respondent.  There are two more noteworthy polling  

stations.  Thus, in Keba polling station the first respondent got 346 votes as against  

the appellant’s one vote, and in Tedung polling station the first respondent got 361  

votes as against only 5 votes of appellant.  The first respondent had to accept that  

the securing of less votes may be due to the less attachment of the candidate to the  

people of a particular area, and may be one of the reasons to loose the election.  He  

has also accepted that there were micro observers in all the polling stations with  

digital cameras.

15. In  this  Misc.  Case  No.05(AP)/2010  the  first  respondent  once  again  

prayed for calling for the voters counterfoils in Form 17-A from 38 polling stations of  

Itanagar Assembly Constituency.  In para 2 of this application he now stated that  

30% of the voters’ of Tali Constituency from 8 polling stations had cast their votes in  

Itanagar,  and  in  their  place  double  voting  was  effected.   Thus,  in  this  second  

application, the first respondent’s grievance of such double voting came down from  

80% to 30%.  The question is as to whether the learned Judge was right in allowing  

this second application for getting this additional record on the background of the  

material that had then come on the record.

16. To begin with, one must note that in an election petition, one has to  

plead the material facts at the outset, and the failure to plead the same is fatal to  

the election petition.  For reference one may see the judgment of a bench of three  

judges of this Court in  Hari Shanker Jain Vs.  Sonia Gandhi reported in [2001  

(8) SCC 233].  Besides, no evidence can be led on a plea which is not raised in the  

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pleadings and no amount of evidence can cure the defect in the pleadings as held in  

para 7 of Ravinder Singh Vs. Janmeja Singh reported in [2000 (8) SCC 191].   

17. (i) In the present case the election petition filed by the first respondent  

made the grievance of booth capturing which is a corrupt practice covered under  

Section 123 (8) of the Act of 1951.  Committing a corrupt practice is a ground to  

declare an election void under Section 100 (1) (d) of the Act.  Booth capturing is  

also made an offence under Section 135 A of the Act, and the term ‘booth capturing’   

is spelt out in the explanation to that section.   

(ii) Section 135 A alongwith the Explanation reads as follows:   

135A.  Offence  of  booth  capturing  –  [(1)]  Whoever   commits an offence of booth capturing shall be punishable with   imprisonment for a term which [shall not be less than one year   

but which may extend to three years and with fine, and where such  offence  is  committed  by  a  person  in  the  service  of  the   

Government, he shall be punishable with imprisonment for a term   which shall not be less than three years but which may extend to five   years and with fine.

Explanation  –  For  the  purpose  of  [this  sub-section  and   section 20B], “booth capturing” includes, among other things, all or   any of the following activities, namely:-

(a) seizure of a polling station or a place fixed for   the  poll  by  any  person  or  persons  making   polling authorities surrender the ballot papers   or voting machines and doing of any other act   which affects the orderly conduct of elections;

(b) taking  possession  of  a  polling  station  or  a   place  fixed  for  the  poll  by  any  person  or   persons  and  allowing  only  his  or  their  own   supporters to exercise their right to vote and   [prevent  others  from  free  exercise  of  their   right to vote];

(c) [coercing or intimidating or threatening directly   or indirectly]  any elector  and preventing him  

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from going  to  the  polling  station  or  a  place   fixed for the poll to cast his vote;

(d) seizure of a place for counting of votes by any   person  of  persons,  making  the  counting   authorities  surrender  the  ballot  papers  or   voting  machines  and  the  doing  of  anything   which affects the orderly counting of votes;

(e) doing  by  any  person  in  the  service  of   Government,  of  all  or  any  of  the  aforesaid   activities  or aiding or conniving at,  any such   activity in the furtherance of the prospects of   the election of a candidate.

(2) An  offence  punishable  under  sub-section  (1)  shall  be   cognizable.

18. As far as impersonation or double voting is concerned, such actions  

would  amount  to  improper  reception  of  votes  which  is  a  separate  ground  for  

declaring an election to be void under Section 100 (1) (d) (iii) of the said Act.  This  

ground was not pleaded in the petition, nor was any issue framed thereon for the  

trial.  As can be seen from the explanation to Section 135 A, the main element of  

booth capturing is use of force or intimidation.  As against that impersonation or  

double voting involves cheating or deception.  Thus, these two grounds deal with  

two different aspects of corrupt practices.  That being the position, the question is  

as to whether the respondent No.1 could have been permitted to lead any evidence  

in this behalf without raising the ground in this election petition.  This is particularly   

on the background that the earlier application I.A. No.6/2010 calling for the register  

of voters’ counterfoils (Form 17-A) from the 38 polling stations of Itanagar had not  

been entertained at that stage under the order dated 31.03.2010 which was prior  

to recording of evidence.

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19. The evidence which had come on record clearly showed that the first  

respondent  received  overwhelming  votes  in  some  polling  stations,  whereas  the  

appellant  received  similarly  overwhelming  votes  in  other  polling  stations.   The  

statement  of  the first  respondent  that  the  appellant  had appointed  fake polling  

agents for the first respondent was a clear after thought, since if it was so, he would  

pleaded the same in the election petition itself.  He has not mentioned the names of  

the  persons  allegedly  involved  in  booth  capturing.   Even  with  respect  to  

impersonation, the only instance pointed out was that of one Markio Tama, but it  

was not stated in the petition or in evidence as to who voted in his place.  It is thus  

obvious  that  having  failed  to  place  any  material  with  respect  to  either  booth  

capturing  or  impersonation,  the first  respondent  was trying to make fishing and  

roving inquiry to improve his case by calling for the record of the voters register  

from Itanagar Constituency, in support of his grievance of double voting.  In the  

absence of any evidence with respect to the persons who at the instance of the  

appellant allegedly captured the booths or made double voting or impersonation in  

Tali Constituency, no such inference could have been drawn against the appellant.  

The learned Single Judge,  therefore,  was clearly  in error  in allowing the second  

application made by the first respondent.

20. Besides,  the  ground  of  improper  reception  requires  a  candidate  to  

show as to how the election in so far as it concerns the returned candidate was  

materially affected, in view of the requirement of Section 100 (1) (d) of the Act of  

1951.  First respondent has stated that there were some 1304 double entries of  

voters.  The allegation of respondent No.1 on evidence was only with respect to  

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Roing and Ruhi polling station.  The votes received by the appellant in both these  

polling stations put together come to 1873.  The appellant has won with a margin of  

2713 votes.  That being so the second application could not have been entertained  

even on that  ground  in  the  absence of  prima facie  case that  the  result  of  the  

election had been materially affected.

21. The learned Judge has referred to and relied upon the judgments of  

this Court in Hari Ram Vs. Heera Singh (supra) and Fulena Singh Vs. Vijoy Kr.  

Sinha (also supra) to hold that in a rare case an order of production of such record  

concerning the voters register could be passed.  Learned Judge however made no  

attempt to apply the principles laid down in those cases to the facts of the present  

one, as can be seen from the narration above.  In Hari Ram, (which is a decision of  

three judges)  the situation  was almost similar.   The High Court  had passed an  

interlocutory order directing the Returning Officer to produce the marked electoral  

rolls for inspection, which was on the background that the first respondent had won  

that election by a very small margin of 238 votes.  In para 3 of the judgment, this  

Court accepted the contention on behalf of the appellant as well founded that the  

High Court erred in allowing the prayers at an interlocutory stage without examining  

whether proper foundation was laid for inspection which would otherwise result in  

adversely affecting the secrecy and sacrosanct nature of electoral process.  In para  

6 of Hari Ram, this Court observed as follows:-

“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 People Act was a special Act   

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and provisions of the Evidence Act or the CPC 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…….”

In Hari Ram also there was a grievance that there were a number of  

dead persons for whom votes were cast.  No details and particulars were given that  

votes were actually cast for dead persons.  This Court held that it was nothing but a  

fishing  inquiry  and  it  clearly  violated  the  sanctity  and  secrecy  of  the  electoral  

process.  

22. (i) Rule 93 of the Conduct of Election Rules, 1961 governs the production  

and inspection of election papers.  Sub-rule 1 thereof is relevant for our purpose and  

it reads as follows:-

“93. Production and inspection of election papers –   (1) While in the custody of the district election officer or, as the   case may be, the returning officer –

(a) the packets of unused ballot papers with counterfoils   attached thereto;

(b) the  packets  of  used  ballot  papers  whether  valid,   tendered or rejected;

(c) the packets of the counterfoils of used ballot papers;

(d) the packets of the marked copy of the electoral roll   or, as the case may be, the list maintained under sub- section (1) or sub-section (2) of section 152; and

[(dd) the packets containing registers of voters in form 17- A;]

(e) 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.”

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(ii) Sub-rule (dd) above has been added in this rule by notification dated  

24.3.1992.   Form  17-A  mentioned  therein  is  related  to  Rule  49  (L)  which  is  

concerning the procedure about the voting by voting machines.  Sub-rule 1 (a) of  

Rule 49 (L) requires the polling officer to record the electoral roll  number of the  

elector as entered in the marked copy of the electoral roll in a register of voters  

which is maintained  in Form 17-A.  

23. This rule (as it then stood) came to be construed by a Constitution  

Bench of this Court in  Ram Sewak  Vs. H.K. Kidwai  reported in AIR 1964 SC  

1249.   This Court held in para 7 as follows:-

“7. 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  parties   inspection of the ballot papers is necessary.

But  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.  To establish  a case so pleaded an   order  for  inspection may undoubtedly,  if  the interests  of  justice   require,  be  granted.  But  a  more  allegation  that  the  petitioner   suspects or believes that there has been an improper reception,   refusal  or rejection of votes will  not be sufficient to support  an   order for inspection.”

The judgment in Ram Sewak has been followed all through out, and  

the  proposition  with  respect  to  inspection  have  been  repeated  in  a  catena  of  

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decisions  of  this  Court,  namely  that  inspection  of  ballot  papers  and counterfoils  

should  be  allowed  very  sparingly,  and  only  when  it  is  absolutely  essential  to  

determine the issue.  As held by this Court in Bhabhi Vs. Sheo Govind reported in  

AIR 1975 SC 2117, 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.   

24. The impugned judgment has relied upon the judgment of this Court in  

Fulena Singh  (supra).   In  that  matter  also  there  was  an  allegation  of  double  

voting, and the inspection of register of voters in Form 17-A was sought.  In para 13  

of the judgment the Court noted the submission on behalf of the respondent that  

the registers of voters in Form 17-A do not enjoy the same immunity as that of the  

other papers mentioned in clauses (a) to (d) and (e) of Rule 93 (1).  This Court did  

not accept that submission, and held that inspection of election papers mentioned in  

detail in the entire Rule 93 (1) is not a matter of course unless a clear case is made  

out.   The Court, therefore, disallowed the inspection of register of voters in Form  

17-A.  Thus, the reliance on Fulena Singh (supra) in the impugned judgment was  

also wholly erroneous

25. This being the position, in our view the order passed by the learned  

Single Judge is illegal and unsustainable.  We are, therefore, required to set-aside  

the same.   

26. Accordingly, we pass the following order:-

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(i) The appeal  is  allowed.   The judgment and order  dated 14.09.2010  

passed by the  learned  Single  Judge  of  Gauhati  High  Court  in  Misc.  Case  (E.P.)  

No.05(AP)/2010  in  Election  Petition  No.01(AP)/2009  is  hereby  quashed and set-

aside.

(ii) The Misc. Case (E.P.) No.05(AP)/2010 is hereby dismissed.  

(iii) Parties will bear their own costs.

     …………..……………………..J.           ( Deepak Verma  )

  …………………………………..J.  

        ( H.L. Gokhale  )

New Delhi  

Dated:  February 2, 2012

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