Lal Vs. Malti Thapar  INSC 123 (15 February 1994)
M.K. (J) Mukherjee M.K. (J) Agrawal, S.C.
1994 SCC (2) 579 JT 1994 (2) 66 1994 SCALE (1)605
Judgment of the Court was delivered by MUKHERJEE, J.- Special leave granted in
both the petitions.
these two appeals orders dated November 2, 1992
and May 28, 1993 passed by the High Court of Punjab
& Haryana in Election Petition No. 5 of 1992 are under challenge. Facts
leading to the filing of these appeals and relevant for their disposal are as under
appellant and the four respondents herein contested the election of 99 Moga
Assembly Constituency polling for which took place on February 19, 1992. When the results were declared it
was found that Respondent I had secured the highest number of votes - and
thereby won the election followed by the appellant, who secured 7 votes less
than her, and the other respondents. The appellant then filed the election
petition assailing the election on various grounds as detailed therein. The
ground, which is relevant for our present purposes, finds place in paragraph 18
of the Election Petition which reads as under:
twenty-two bogus votes of dead electors by impersonation were cast in favour of
Respondent I at the instance of Respondent 1 and her supporters. The relevant details
of these dead electors is annexed along with as Annexure P-9." 4.In course
of the trial that followed the appellant examined himself to substantiate the
allegations made by him in the petition and thereafter moved an application on
October 22, 1992 seeking production of Form No. 16 (Ballot- Paper Account) of
booth Nos. I to 125 and marked copies of the electoral roll of booth Nos. 8,
35, 44, 56 and 57.
hearing the parties the learned trial Judge allowed the prayer of the appellant
so far as it related to the production of Form No. 16 but rejected the other
prayer by the impugned order dated November 2, 1992. Thereafter on January 4, 1993 the appellant filed an application
praying for amendment of the Election Petition which was rejected by the other
rejecting the prayer of the 'appellant for production of the marked copy of the
electoral roll the learned Judge first observed that as that document was
included in sub- clause (d) of Rule 93(1) of the Conduct of Elections Rules,
1961 ('Elections Rules' for short) it should not be allowed to be produced to
maintain secrecy of the election. The other ground which weighed with the
learned Judge was that no case had been made out for summoning the.document.
Having considered the materials on record in the 581 light of the relevant
rules and circulars we are unable to sustain either of the above grounds.
Rule 93(1) of the Elections Rules provides that while in the custody of the
District Election Officer or the Returning Officer, the documents referred to
in various clauses thereof shall not be opened and their contents shall not be
inspected by, or produced before any person or authority except under the order
of the competent Court; and the documents referred to in clause (d) of the
above rule include the packets of the marked copy of the electoral roll.
manner in which the marked copy of the electoral roll is to be maintained is
provided for in Chapter V of the official handbook issued by the Election
Commission of India for use of its officers during election. It is provided
therein that as soon as an elector enters the polling station he has to proceed
directly to the First Polling Officer who is to be in charge of the marked copy
of the electoral roll and responsible for the identification of the electors.
After taking requisite steps to locate the name of the elector in the electoral
roll and after checking it with the particulars in the relevant entry in the
roll, he is to call out the page number, the part number, the serial number and
the name of the elector to the hearing of the polling agents and the Second
Polling Officer. If there is no challenge as regards the identity of the
elector he is required to underline in every case the entry relating to the
elector in the marked copy of the electoral roll with him and where the elector
is a female to put a () mark also on the left side of the name of the female
elector. With such marking the duty of the First Polling Officer ends and the
voter is then required to move to the Second Polling Officer whose duty is to
supply the ballot-paper and record on the counterfoil of the ballot paper the
electoral roll part number and the serial number of the elector, as entered in
the marked copy of the electoral roll. Considering the limited purpose for
which the marked copy of the electoral roll is maintained, namely, to identify
the elector, it cannot be said that production thereof would impair the secrecy
of the voters.
other observation of the learned trial Judge that no case was made out for
summoning the marked copy of the electoral roll is also not borne out by the
record. As has already been noticed the appellant has averred in the election
petition that against dead voters, votes have been cast and in support of his
contention he has not only examined himself but also examined his polling
agents of the respective booths wherein, according to him, false votes have
been cast. Besides, he has exhibited the electoral roll which those polling
agents maintained to ascertain the identity of the electors who had come to
vote. It must, therefore, be held that the appellant has made out a prima facie
case for production of the marked copy of the electoral roll of the five booths
referred to in his application.
Coming now to the other impugned order, we find that the learned Judge has
rejected the prayer for amendment of the petition principally on the ground
that by the proposed amendment the appellant was seeking to introduce 'material
fact' as distinguished from 'material particulars' of a 582 corrupt practice
which was impermissible. In so doing the learned Judge drew sustenance from the
following observations made by this Court in the case of F.A. Sapa v. Singora 1
election law is statutory in character as distinguished from common law and it
must be strictly complied with.
There is a clear and vital distinction between 'material facts' referred to in
Section 83(1)(a) and 'particulars' in relation to corrupt practice referred to
in Section 83(1)(b) of the Act.
86(5) of the Act empowers the High Court to allow particulars of any corrupt
practice which has already been alleged in the petitions to be amended or
amplified provided the amendment does not seek to introduce a corrupt practice
which is not previously pleaded.
By implication amendment cannot be permitted so as to introduce ' material
fasciculus of sections appearing in Chapter III of Part VI of the Act lays down
the procedure for trial of election petitions. Sub-section (1) of Section 87
thereof provides that subject to the provisions of this Act and of any rules
made there under, every election petition shall be tried by the High Court, as nearly
as may be, in accordance with the procedure applicable under the Code of Civil
Procedure ('Code' for short). That necessarily means that Order VI Rule 17 of
the Code which relates to amendment of pleadings will a fortiori apply to
election petitions subject, however, to the provisions of the Act and of any
rules made there under. Under Order VI Rule 17 of the Code the Court has the
power to allow parties to the proceedings to alter or amend their pleadings in
such manner and on such terms as may be just and it provides that all such
amendments shall be made as may be necessary for the purpose of determining the
real questions in controversy between the parties. But exercise of such general
powers stands curtailed by Section 86(5) of the Act, when amendment is sought
for in respect of any election petition based on corrupt practice. Since
Section 87 of the Act- and, for that matter, Order VI Rule 17 of the Code- is
subject to the provisions of the Act, which necessarily includes Section 86(5),
the general power of amendment under the former must yield to the restrictions
imposed by the latter.
therefore, if the amendment sought for in the instant case related to corrupt
practice we might have to consider the same in conformity with Section 86(5) of
the Act as interpreted by this Court in the case of F.A. Sapal and accept the
findings of the learned Judge as recorded in the impugned order; but then, the
learned Judge failed to notice that the amendments, the appellant intends to
bring in his election petition, do not relate to any corrupt practice and,
therefore, it has to be considered in the light of Section 87, and dehors
Section 86(5) of the Act.
the foregoing reasons the impugned order dated May 28, 1993 cannot also be sustained.
3 SCC 375 583
We, therefore, allow these appeals and set aside the impugned orders dated November 2, 1992 and May 28, 1993.
learned Judge will now issue necessary directions for production of the marked
copy of the electoral roll as prayed for by the appellant and also dispose of
the amendment application on its merits. However, there will be no order as to