Bhabhi Vs. Sheo Govind & Ors
[1975] INSC 102 (21 April 1975)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
UNTWALIA, N.L.
CITATION: 1975 AIR 2117 1975 SCR 202 1976 SCC
(1) 687
CITATOR INFO :
R 1980 SC 206 (26) RF 1980 SC1362 (33) E 1983
SC1311 (9,10) F 1984 SC 396 (4)
ACT:
Representation of People
Act-Election-Inspection of ballot papers-Principles.
HEADNOTE:
The appellant was elected to the U.P.
Legislative Assembly.
The appellant defeated respondent No. 1 by a
margin of 94 Votes. The respondent No. 1 in his election petition made an
application for inspection of the ballot papers on the ground that there were
improper reception and rejection of votes. That the election staff was
suffering from serious physical strain as they had to work without any rest.
There were arithmetical mistakes in the counting. That the staff was drowsy and
was dozing.
The respondent no. 1 made an application
praying for a sample inspection of the ballot papers. He examined some
witnesses and counting agents, and filed some affidavits.
The appellant also produced some evidence.
The respondent did not give serial number of a single ballot paper which is
said to have been improperly accepted or rejected. Nor did he file an
application for recounting of votes.
The High Court without going into the merits
of the application ordered a sample inspection of the ballot paper.
The High Court did not give any finding
whether the evidence or the material adduced by the respondent no. 1 was
sufficient for the prima facie satisfaction of the High Court.
HELD : An order for inspection could not be
granted as a matter of routine, but only tinder special circumstances.
Inspection of ballot paper should not be
allowed in such a way so as to make a roving or fishing inquiry in order to discover
material for declaring the election void. [205F-G, 206D] The following
conditionss are imperative before a Court can grant inspection or sample
inspection of the ballot pepers :(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 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 (5)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. [230E-H, 231A-B] Further held that what
appeared to have weighed with the High Court was the solitary circumstance that
the appellant bad succeeded by a narrow margin and that was a sufficient ground
for ordering sample inspection. The Court, however, was unable to agree, with
this broad statement of the law by the High Court because if a person is duly
elected even by a narrow 203 margin of votes there is no presumption that there
has been illegality or irregularity in the election. This is a fact which has
to be proved by a person who challenges the election of the duly elected
candidate. After all in a large democracy such as our's where we have a
multiparty system, where the number of voters is huge and diverse, where the
voting is free and fair and where in quite a few cases the contest is close and
neck to neck, a marginal victory by a successful candidate over his rival can
sometimes be treated as a tremendous triumph so as to give a feeling of
satisfaction to the victorious candidate. The Court cannot lightly brush aside
the success of the duly elected candidate on an election petition based on
vague and indefinite allegations or frivolous and flimsy grounds.
[212B-C DE] Held further, in the instant
case, the High Court while passing the order of sample inspection made no
attempt to apply the above principles. The High Court actually noticed some of
the important decisions and yet did not apply them.
The High Court did not record any
satisfaction. Allowing the appeal, the matter was remanded to the High Court
for disposing of the application for inspection of the ballot papers in the
light of the observations made in the judgment. [205 D-F. 211 C-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 63 of 1975.
Appeal by special leave from the Judgment and
order dated the 20th September, 1974 of the Allahabad High Court in Election
Petition No. 19 of 1974.
J.P. Goyal, Pranab Chatterjee and G. S.
Chatterjee, for the appellant.
R.K. Garg, S. C. Agarwala and V. J. Francis,
for respondent No. 1.
The Judgment of the Court was delivered by
FAZAL ALI, J.-By virtue of an order dated December 20, 1974 Banerji, J., of the
Allahabad High Court who was designated as the Election Judge passed an order
granting the application of the respondent No. 1 for a sample inspection of the
ballot papers. The order directed that a sample inspection of 20 bundles of 50
ballot papers each of the votes counted in favour of the appellant may be taken
out and examined along with the 5 bundles of the rejected ballot papers. It is
against this order that the appellant has filed the present appeal by special
leave and has assailed the order of the learned Single Judge on the ground that
the learned Judge has exercised his discretion illegally and improperly in
allowing the sample inspection of the ballot papers without there being
sufficient proof of the allegations made by the respondent in his petition for
setting aside the election of the appellant.
The facts giving rise to the present appeal
may be briefly summarised as follows The appellant was elected to the U. P.
Legislative Assembly from 218, Mubarakpur Constituency in the District of
Azamgarh, U. P. The last date of nomination for election to the said assembly
was January 24, 1974. The date of scrutiny was January 25, 1974 and that of
withdrawal January 28, 1974. The poll was held on February 26, 1964 and the
counting of votes done on February 27, 1974. The result of the election was
declared on February 28, 1974. The 204 respondent filed an election petition
before the Election Judge of the Allahabad High Court some time in March 1974.
The appellant secured 19,728 votes while
respondent No. 1 had secured 19,634 votes and thus the appellant defeated
respondent No. 1 by a margin of 94 votes and was duly elected to the U.P.
Legislative Assembly. In the petition filed by the respondent before the
Allahabad High Court the respondent in paragraph-8 of the said petition made a
large number of allegations regarding the improper reception and rejection of
votes and regarding wrong arithmetical counting of votes and acceptance of
votes which were void. The material facts with respect to the allegations were
set out in paragraph-9 of the petition which broadly are as follows :
(1) That the election staff engaged in the
work of counting was suffering from serious physical strain as they had to work
without any rest on that day as a result of which there were a number of
arithmetical mistakes in the counting of votes.
(2) That the staff had become drowsy and was
actually dozing and could not efficiently discharge its function of counting
the votes properly.
As regards the facts relating to improper
rejection of valid ballot papers it is said that a large number of ballot
papers in which valid votes had been marked for the petitioner' (respondent No.
1) were declared invalid despite oral protests made by the counting agents of
the respondent.
Similarly a large number of ballot papers had
distinct marks of stamp in the column of the petitioner near the symbol of cow
and calf and yet they were improperly rejected by the counting staff on the
ground that there were no distinct marks. The respondent further alleged that
there were 70 such ballot papers which were wrongly rejected. It was also
pleaded that a number of ballot papers which had a valid vote for the
petitioner were illegally rejected on the ground that there were some
accidental mark made in the column of some other candidate which was not a mark
of the stamp or a voting mark and the number of such ballot papers rejected was
50. Finally it was said that a number of ballot papers which carried valid
votes for the petitioner were illegally rejected on the ground that there was
no seal mark or there was no signature of the Returning Officer on those ballot
papers although it was far from the truth.
Such were said to be the obvious mistakes in
the rejection of the ballot papers and the counting of votes which formed the
sheet-anchor of the case of the respondent in challenging the election of the
appellant. The appellant in his written statement denied all the allegations
made in the petition.
While the election petition was being heard
by the High Court an application was filed by the respondent No. 1 praying that
a sample inspection of the ballot papers may be allowed. In support of this
application some witnesses, counting agents of the respondent and other persons
were examined and some affidavits were filed. The appellant also produced some
evidence. The learned Judge has mentioned in his order that this sort of
evidence was led before him 205 but he has not at all given any finding on the
credibility of the evidence. The learned Judge further noticed very prominently
that in respect of the allegations made that the counting of votes was wrong
and the rejection of the ballot papers was improper, yet the respondent filed
no application for recounting of votes as provided by r. 63 of the Conduct of
Election Rules, 1961. The learned Judge also noticed that the respondent had
not given serial number of a single ballot paper whichis said to have been
improperly accepted or improperly rejected. The Judge, however, allowed the
application because he thought that the ends of justice required it. In this
connection the learned Judge observed as follows:
"But before I advert to consider the
election petition, the affidavit and the oral evidence to decide whether there
should be an order for the general inspection of the used ballot papers, I
think it will be in the interests of justice to order a sample inspection of
ballot papers counted in favour of respondent No. 1 as also a sample inspection
of the rejected ballot papers in this case." These observations clearly show
that the learned Judge made no attempt at all to give any finding whether he
was prima facie satisfied regarding the credibility of the evidence or the
materials adduced before him but ordered a sample inspection in order to test
the validity of the allegations made by the respondent. It seems to us that in
passing this order the learned Judge, while noticing some of the leading cases
of this Court on the point which he has cited in his judgment, viz., Ram Sewak
Yadav v. Hussain Kamil Kidwai & Ors. (1) Dr.. Jagjit Singh v. Giani Kartar
Singh and others,(2) Jitendra Bahadur Singh v. Krishan Behari & Ors;(3) and
Sumitra Devi v. shri Sheo Shankar Prasad Yadav & Ors.(4) has made no
attempt to apply the principles laid down in those cases to the facts of the present
case.
Before, however, dealing with the order
passed by the learned Judge it may be necessary to refer to a number of
authorities of this Court on the circumstances under which an inspection of the
ballot papers, or for that matter a sample inspection, can be allowed. In the
case of Ram Sewak Yadav (supra) the matter was considered at great length and
this Court pointed out that an order for inspection could not be granted as a
matter of routine but only under special circumstances and observed as follows
:
"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 (1)[1964] 6 S.C.R, 238.
(2)A.T.R. 1966 S.C. 773.
(3)) [1970] 1 S.C.R. 852.
(4) [1973] 2S.C.R.920.
206 (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.
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 mere allegation that the
petitioner suspects or believe, that there has been an improper reception,
refusal or rejection of votes will not be sufficient to support an order for
inspection." Two years later in Dr. Jagjit Singh's case (supra) this Court
observed on the facts of that case that the discretion to allow inspection of
ballot papers should not be used in such a way so as to make a roving or
fishing inquiry in order to discover materials for declaring the election void.
In this connection, this Court made the
following observations "The true legal position in this matter is no
longer in doubt. Section 92 of the Act which defines the powers of the
Tribunal, in terms, confers on it, by Cl. (a), the powers which are vested in a
Court under the Code of Civil Procedure when trying a suit, inter alia, in
respect of discovery and inspection.
Therefore, in a proper case, the, Tribunal
can order the inspection of the ballot boxes................... An application
made for the inspection at ballot boxes must give material facts which would
enable the Tribunal to consider whether in the interests of justice, the ballot
boxes should be inspected or not. In dealing with this question, the importance
of the secrecy of the ballot papers cannot be ignored, and it is always to be
borne in mind that the statutory rules framed under the Act are intended to
provide adequate safeguard for the examination of the validity or invalidity of
votes and for their proper counting. It may be that in some cases, the ends of
justice would make it necessary for the Tribunal to allow a party to inspect
the ballot boxes and consider his objections about the improper acceptance or
improper rejection of votes tendered by voters at any given election; but in
considering the requirements of justice, care must be taken to see that
election petitioners do not get a chance to make a roving or fishing enquiry in
the ballot boxes so as to justify their claim that the returned candidate's
election is void." In Jitendra Bahadur Singh's case (supra) the order of
the Election Judge granting inspection of the ballot papers was reversed by
this Court because the Court thought that the learned Judge had not followed
the essential conditions laid down before granting the 207 prayer for
inspection of the ballot papers. In that case the Court held that the
allegations were vague and indefinite, no material fact was pleaded and further
that the petitioner was present at the time of counting and yet he did not take
any objection regarding the illegal rejection of the votes. In this connection
Hegde, J., speaking for the Court laid down the following principles (1) that
the petition for setting aside the election must contain an adequate statement
of the material facts on which the petitioner relies in support of his case;
and (2) the Tribunal must be 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.
The cases of Ram Sewak Yadav and Dr. Jagjit
Singh mentioned (supra) were referred to and relied upon by Hegde, J., in his
judgment.
Another case which appears to be in point and
which was the sheet-anchor of the argument of the learned counsel for the
respondent is the case of Sashi Bhusan v. Prof. Balraj Madhok & Others.(1)
It is true that a sample inspection was allowed in that case. But, in our
opinion, it was so done because of the special facts of that case. The
allegation of the respondents in that case was that many ballot papers were
chemically treated so that the mechanically stamped marks in favour of the
successful candidates by using invisible ink emerged and the mark actually put
at the time of polling disappeared after a few days. This was undoubtedly an
allegation of a very serious nature, which, if true, would have shaken the
entire confidence of the people in the electoral process and would have
seriously impaired our democratic system. in these circumstances this Court
held that it was not only necessary but in public interest that the allegation
should be thoroughly examined so as to maintain confidence of the people. In
this connection, Hegde, J., while delivering the judgment of the Court,
observed as follows :
"It is true that merely because someone
makes bold and comes out with a desperate allegation that by itself should not
be a ground to attach value to the allegation made. But at the same time
serious allegations cannot be dismissed summarily merely because they do not
look probable. Prudence requires a cautious approach in those matters. In all
these matters, the court's aim should be to render complete justice between the
parties.
Further, if the allegations made raise issues
of public importance, greater care and circumspection is necessary.
These cases have peculiar features of their
own. No such case had come up for decision earlier. Hence decided (1) [1972] 2
S.C.R. 177.
208 cases can give little assistance to us.
In a matter like allowing inspection of ballot papers, no rigid rules have been
laid down, nor can be laid down. Much depends on the facts of each case. The
primary aim of the courts is to render complete justice between the parties.
Subject to that overriding consideration, courts have laid down the
circumstances that should weigh in granting or refusing inspection.
............ The ratio of that decision is
that the inspection of ballot papers should be allowed only when the court
thinks that it is necessary in the interests of justice to do so. In. that case
this Court did not lay down any hard and fast rule as to when an inspection of
the ballot papers can be allowed." In the instant case, however, the
allegations are of a different kind. They relate only to the mistakes in
counting and improper rejection of votes. They are not of a sweeping pattern as
in the case aforesaid.
In these circumstances, therefore, the ratio
laid down in Sashi Bhushan's case (supra) cannot be pressed into service for
the purpose of supporting the order of the learned Judge.
In the case of Sumitra Devi (supra), Mathew,
J., after reviewing the previous authorities of this Court, held as follows :
"In the case at hand, the allegations in
the election petition were vague and the petition did not contain an adequate statement
of the material facts. The evidence adduced by the appellant to prove the
allegations was found unreliable. No definite particulars were also given in
the application for inspection as to the illegalities alleged to have been
committed in the counting of the ballot papers. A recount will not be granted
as a matter of right but only on the basis of evidence of good grounds for
believing that there has been a mistake in the counting. It has to be decided
in each case whether a prima facie ground has been made out for ordering an
inspection." In S. Baldev Singh v. Teja Singh Swatantar (dead) &
Ors(1) Krishna Iyer, J., remarked as follows :
"Coming to the facts of this case, we
have already indicated that no good grounds for a Court order for inspection
and recount, particularly after the Sherpur experiment, exist. Although we are
free to admit that an imaginative Returning Officer might have quietened the
qualms and silenced the scepticism of the appellant by a test check or partial
recount, proceeding to a full recount if serious errors were found, we are
inclined to agree with the High Court, there being no reason to reverse its
elaborately discussed conclusions, and the relief of recount was rightly
rejected." (1) Civil Appeal No. 233 of 1973 decided an 24-1-1975.
209 In Beliram Bhalaik v. Jai Beharl Lai
Kachi and Anr.(1) Sarkaria J., speaking for the Court, observed as follows :
"Since an order for a recount touches
upon the secrecy of the ballot, it should not be made lightly or as a matter of
course. Although no cast iron rule of universal application can be or has been
laid down, yet, from a beadroll of the decisions of this Court, two broad
guidelines are discernible : that the Court would be justified in ordering a
recount or permitting inspection of the ballot papers only where (i) all the
material facts on which the allegations of irregularity or illegality in
counting are founded, are pleaded adequately in the election petition, and (ii)
the Court/Tribunal trying the petition is prima facie satisfied that the making
of such an order is imperatively necessary to decide the dispute and to do
complete and effectual justice between the parties." In Suresh Prasad
Yadav v. Jai Prakash Mishra & Ors.(2) while summarising the principles laid
down by this Court from time to time in granting prayer for inspection of
ballot papers, the Court adumberated the circumstances in which a prayer for
inspection of ballot papers could be considered and observed as follows :
"Before dealing with these contentions, we
may recall, what this Court has repeatedly said, that an order for inspection
and recount of the ballot papers cannot be made as a matter of course. The
reason is twofold. Firstly such an order affects the secrecy of the ballot
which under the law is not to be lightly disturbed. Secondly, the Rules provide
an elaborate procedure for counting of ballot papers. This procedure contains
so many statutory checks and effective safeguards against trickery, mistakes
and fraud in counting, that it can be called almost foolproof. Although no hard
and fast rule can be laid down, yet the broad guidelines, as discernible from
the decisions of this Court, may be indicated thus The Court would be justified
in ordering a recount of the ballot papers, only where :
"(1) the election-petition contains an
adequate statement of all the material facts on which the allegations of
irregularity or illegality in counting are founded;
(2) On the basis of evidence adduced such
allegations are prima facie established, affording a good ground for believing
that there has been a mistake in counting; and (3) The Court trying the
petition is prima facie satisfied that the making of such an order is
imperatively (1) A.I.R. 1975 S.C. 283.
(2) A.I.R. 1975 S.C. 376.
210 necessary to decide the dispute and to do
complete and effectual justice between the parties." These principles were
reiterated in Chanda Singh v. Ch. Shiv Ram Varma and others,(1) where speaking
for this Court, Krishna Iyer, J., observed thus "On all hands, it is now
agreed that the importance of the secrecy of the ballot must not be lost sight
of, material facts to back the prayer for inspection must be bona fide, clear
and cogent and must be supported by good evidence. We would only like to stress
that in the whole process, the secrecy is sacrosanct and inviolable except
wherestrong prima facie circumstances to suspect the purity,propriety and
legality in the counting is made out by definite factual averments, credible
probative material and good faith in the very prayer. We may even say that no
winning candidate should be afraid of recount and, conditions as they are, a
sceptical attitude expecting the unexpected may be correct, informed of course
by the broad legal guidelines already set out." Lastly in Ch. Manphul Singh
v. Ch. Surinder Singh(2) the Court upheld the order of the High Court allowing
inspection of ballot papers because the High Court had given a finding that the
evidence of the witnesses was sufficient to prove the allegation of
impersonation, in that case. The Court further held that the High Court did not
act arbitrarily in granting the prayer for inspection.
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
allocations 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 (1) AIR 1975 SC
403.
(2) AIR 1975 SC 502.
211 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.
In the instant case we find that the learned
Judge while passing the order of sample inspection made no attempt to apply the
principles mentioned above to the facts of the present case. What is more
important is that the Court actually noticed some of the important decisions of
this Court which we have discussed and yet it did not try to test the
principles laid down on the touchstone of the allegations and the material
facts pleaded by the respondent.
Another error into which the learned Judge
had fallen was that he did not realise that by allowing sample inspection he
had provided an opportunity to the respondent to indulge in a roving inquiry in
order to fish out materials to justify his plea in order to declare the
election to be void a course which has been expressly prohibited by this Court,
because it sets at naught the electoral process and causes a sense of
instability and uncertainty amongst the duly elected candidates. Thirdly, while
the learned Judge has observed that the Court must be prima facie satisfied
regarding the truth of the materials, but it did not choose to record its
satisfaction on the application of the respondent at all and has readily
accepted the suggestion of the respondent for sample inspection on the ground
that it was necessary for the ends of justice. Such an approach, in our
opinion, is legally erroneous. While indicating in his order that both the
parties had produced some affidavits before him in support of their pleas, the
learned Judge has not at all tried to appreciate or consider the evidence in
order to find out whether it was worthy of credence. In the absence of any such
finding it was not open to the learned Judge to have passed an order for sample
inspection just for the asking of the respondent.
Finally there were intrinsic circumstances in
this case which went to show that unless the respondent was able to place
cogent materials this was not a case for allowing sample inspection at all. in
the first place although the counting agents of the respondent were present at
the time when the votes were counted no application for a recount was made
under r. 63 of the Conduct of Election Rules,' 1961.
The nature of the allegations made by the
respondent in his petition as alluded to above was such as could have been
easily verified at the spot by the Returning Officer, if his attention was
drawn to those facts by an application made under r. 63 of the Conduct of
Election Rules, 1961.
Secondly the learned Judge overlooked that
the respondent had not given the material particulars of 212 the facts on the
basis of which he wanted an order for sample inspection of ballot papers. No
serial number of the ballot paper was mentioned in the petition nor were any
particulars of the bundles containing the ballot papers which were alleged to
have been wrongly rejected given by the respondent. Even the segment in which
the irregularity had occurred was not mentioned in the petition. We, however,
refrain from making any further observation as to what would be the effect of
non-disclosure of these particulars because we intend to remit the case to the
learned Judge for rehearing the matter and deciding the application for
inspection. What appears to have weighed with the Judge is the solitary
circumstance that the appellant had succeeded by a narrow margin and that was a
sufficient ground for ordering sample inspection. We are, however, unable to
agree with this broad statement of the law by the learned Judge because if a
person is duly elected even by a narrow margin of votes there is no presumption
that there has been illegality or irregularity in the election. This is a fact
which has to be proved by a person who challenges the election of the duly
elected candidate.
After all in a large democracy such as our's
where we have a multi-party system, where the number of voters is huge and
diverse, where the voting is free and fair and where in quite a few cases the
contest is close and neck to neck, a marginal victory by a successful candidate
,over his rival can sometimes be treated as a tremendous triumph so as to give a
feeling of satisfaction to the victorious candidates The Court cannot lightly
brush aside the success of the duly elected candidate on an election petition
based on vague and indefinite allegations or frivolous and flimsy grounds.
The learned counsel for the respondent
submitted, however, that in view of the amended provisions of the
Representation of the People Act and the rules made thereunder the question of
maintenance of secrecy has now become obsolete, because under the present
system which was in vogue at the time when the election of the appellant was
held it is difficult to find out as to which voter voted for the candidate. It
is, however, conceded by the learned counsel for the respondent that if the
counter-foils which are scaled and kept separately are made to tally with the
ballot papers, then it can be ascertained with some amount of precision as to
which voter voted for whom. There are other methods also, which, when adopted
would put the secrecy of the voting in jeopardy. In these circumstances,
therefore, the question of maintenance of secrecy does not become obsolete as
argued by Mr. Garg appearing for the respondent. We have adverted to a long
course of decisions of this Court where it has been insisted on the maintenance
of the secrecy of the ballot and the new methodology adopted by the Act has not
made any material change in this concept.
Lastly it was submitted by the counsel for
the respondent that the learned Judge had to satisfy himself whether or not a
case had been made out for allowing sample inspection and if he had exercised
his discretion one way or the other, this Court should not lightly interfere
with that discretion. This argument, however, is wholly untenable for the
reasons we have given in holding that the order of the 213 learned Judge is not
in accordance with the law. The learned Judge has not at all applied the
principles laid down by this Court in the cases referred to above. It is
manifest that the Court has the undoubted power to (,rant prayer for
inspection, but this discretion has to be exercised according to the sound and
sacrosanct principles laid down by this Court. In the instant case, the
discretion has been exercised by the learned Judge in an arbitrary manner
without the application of the mind to the material facts and circumstances as
discussed above.
For the reasons given above, we allow this
appeal, set aside the order of the learned Single Judge of the Allahabad High
Court dated December 20, 1974 and remand this case to the learned Election
Judge for disposing of the application of the respondent for inspection of the
ballot papers in accordance with the law and in the light of the observations
made above. The appellant will be entitled to his costs in this Court.
P.H.P. Appeal allowed.
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