Fulena Singh Vs.
Vijay Kumar Sinha & Ors.  INSC 212 (5 February 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 719 OF 2009 (Arising out
of SLP(c) No. 23834 of 2008) Fulena Singh ...Appellant Versus Vijay Kumar Sinha
& Ors. ...Respondents
appeal is directed against the interlocutory order dated 15.9.2008 passed in
Election Petition No.1 of 2006 by the High Court of Judicature at Patna
(Election Tribunal) 2 wherein the High Court allowed the application filed by
the respondent under Rule 93 (1) (dd) of the Conduct of Election Rules, 1961
(hereinafter referred to as "the Rules").
The High Court vide
the impugned order permitted the parties to inspect registers 17A; prepared
under the said Rule.
facts leading to this appeal may have to be noticed before we proceed to
consider the validity and correctness of the impugned order. The first
respondent herein filed Election Petition No.1 of 2006 challenging the election
of the appellant herein on various grounds. The case of the first respondent/petitioner
is that he was defeated in the elections held in the month of October-
November, 2005 to the Bihar Legislative Assembly from 172, Lakhisarai Assembly
Constituency by a narrow margin of 82 votes only on account of several
irregularities and illegalities alleged to have been committed by the appellant
and his election agent together with his workers and 3 supporters. The precise
allegation, so far as we are concerned in the present appeal, relates to
enrollment of voters in more than one place in the Assembly Constituency.
It is alleged that
the family members of the appellant are enrolled as voters from three places in
the constituency and the appellant himself is enrolled as a voter in more than
is alleged that the election of the appellant may have to be declared void
"on the solitary ground that there are large number of voters roughly
about 600 were enrolled as voters from more than one place and majority of such
voters have voted twice in favour of respondent no. 1 In this regard, it is
curious to indicate that there are 250 persons of family of respondent no. 1
including the gotias (agantes) and co-villagers who were supporters of
respondent no. 1 have voted twice from both the places in favour of respondent
no. 1. Thus, 250 persons who are family members as well as agents and
co-villagers and the 4 supporters of respondent no. 1 and enrolled in more
than two places in voter list in the same constituency and they have cast votes
at both the places and as such 500 void votes have been counted in favour of
respondent no. 1 and if such void votes are deleted by simple arithmetical
calculations, respondent no. 1 has secured less number of votes than the
petitioner and therefore on this ground alone the election of respondent no. 1
is not only fit to be set aside but on the other hand the election petitioner
is entitled to declare election in place of respondent no. 1 by securing the
majority votes than the respondent no. 1." The details of enrollment of
some such voters stated to have been enrolled in more than one place in the
said constituency are mentioned in annexure 4 to the election petition.
appellant herein filed a detailed written statement inter alia denying the
averments made and allegations levelled in the election petition.
order to prove his case the respondent no. 1 herein adduced evidence on his
behalf and the matter is coming up for the evidence of the
appellant/respondent. It is at this stage the first respondent herein filed an
application under Rule 93 (1) (dd) of the Rules seeking inspection of the
packets containing registers of voters in Form 17A; in the said application it
is stated that inspection of the registers of voters in Form 17A is required
for the purposes of substantiating the allegations of double voting by the
relations and supporters of the appellant.
appellant herein in his objection resisting the prayer for inspection of the
registers inter alia submitted that inspection of the said documents if
permitted at this stage may amount to making a roving enquiry in order to fish
out the materials. Such inspection, if any, can be permitted only after
consideration of evidence of both the parties.
learned trial judge after referring to the pleadings and decisions of this
Court allowed the application and accordingly permitted the parties to inspect
the registers of voters in Form 17A.
Hence, this appeal.
Vikas Singh, learned senior counsel appearing on behalf of the appellant
submitted that the High Court has committed a serious error in ordering
inspection of Registers of voters in Form 17A, which contains identity of
voters and this inspection at this stage may have a serious bearing on the
trial of the election petition where the appellant is yet to lead evidence. The
learned senior counsel further submitted that orders permitting inspection of
any election paper mentioned in Rule 93 of the said Rules cannot be granted as
a matter of course unless a cast iron is made out for such inspection. It was
further submitted that secrecy of ballot is an important consideration that
should always weigh with the Court. Learned senior counsel submitted that the
7 evidence made available by the first respondent is not sufficient for
ordering any such inspection. Lastly, it was contended that the learned trial
judge ordered the application without recording any reason whatsoever and
therefore the impugned order is liable to be set aside on that ground alone.
Shri Ravi Shankar Prasad, learned senior counsel relying on the pleadings in
the election petition and as well as the evidence submitted that the
respondent/election petitioner made out a clear case for ordering inspection of
the said registers. Learned senior counsel also contended that registers of
voters in Form 17A do not enjoy the same immunity as that of other papers
mentioned in (a) to (d) and (e) of Rule 93 of said Rules. It was further
submitted that purity of elections is equally an important consideration that
has to be borne in mind and the courts are required to balance both the
principles namely secrecy of ballot and the purity of elections. Shri Prasad
made an attempt to contend that no detailed reasons as such are required to be
recorded by the learned trial 8 judge for the purpose of disposal of the interlocutory
We have carefully
considered the rival submissions and perused the material available on record.
93 of the said Rules mandates that election papers mentioned in the said Rule
shall not be opened and their contents shall not be inspected by, or produced
before, any person or authority except under the orders of a competent court.
It is fairly well-settled and needs no restatement at our hands that inspection
of election papers mentioned in detail in Rule 93 (a) to (e) is not a matter of
course. Inspection of those papers cannot be ordered and parties cannot be
permitted to inspect the same for the purposes of making a roving enquiry in
order to fish out the materials and to derive support one's own case. It is
equally well settled that a clear case is required to be made out for ordering
the production and inspection of election papers by the parties.
is true that the election petitioner adduced evidence on his behalf by
examining seven witnesses. The learned trial judge observed that all the
witnesses "have supported the allegation of double voting at more than one
booth by relations and supporters of respondent no. 1. Some of the witnesses
have specifically given the names of such voters whose names appear in voter's
list at more than one place."
That is all the
discussion about the evidence and material available on record. Learned trial
judge did not assign any reason whatsoever in support of his conclusion
permitting the parties to inspect the registers of voters in Form 17A.
The learned trial
judge allowed the application as a matter of course. We find it very difficult
to sustain such laconic and unreasoned order which may have a serious bearing
on the questions that arise for consideration in the main election petition
which is still awaiting trial and disposal.
do not propose to minutely examine the nature of evidence and express our
opinion as to whether any case at all is made out for permitting the parties to
inspect the packets containing registers of voters in Form 17A; for such an
exercise on our part may cause unintended prejudice to either of the parties in
the main Election Petition which is still awaiting adjudication. Be it noted
the prayer in the Election Petition is to set aside the election of the
appellant and declare the respondent/election petitioner to have been duly
elected from 172, Lakhisarai Assembly Constituency after scrutiny, inspection
and recounting of ballot papers.
Similar is the prayer
in the application disposed of by the learned trial judge resulting in passing
of the impugned order. The grant or refusal of the prayer in the election
petition to a large extent depends upon the decision as to whether parties have
to be permitted to inspect the registers in Form 17A. It would be appropriate
to decide the main election petition in order to finally resolve the lies
between the parties.
the aforesaid reasons, we set aside the impugned order and remit the
application filed by the first respondent/election petitioner for the
consideration of the trial court along with the election petition. Interests of
justice requires expeditious disposal of the election petition since the same
is awaiting its adjudication ever since 2006.
The appellant as well
as the respondents assure the court that they shall not make any unreasonable
request seeking postponement of the trial of the election petition. The
appellant herein undertakes to lead his evidence and complete the same
therefore request the learned trial judge to dispose of the election petition
and as well as the application filed by the respondent/election petitioner
within a period of four months from today. The learned trial Judge shall
dispose of election petition and as well as application uninfluenced by any of
the observations made in this order since we have 12 not expressed any opinion
whatsoever on the merits of the case.
is accordingly allowed, with no order as to costs.
(Lokeshwar Singh Panta)
(B. Sudershan Reddy)