REPORTABLE

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

J U D G M E N T  

B.SUDERSHAN REDDY,J.

Leave granted.  

2. This 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)

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.  

3. Brief  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

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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 one

place.

4. It 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

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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.

5. The appellant herein filed a detailed written statement

inter  alia  denying  the  averments  made  and  allegations

levelled in the election petition.      

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6. In 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.

7. The  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.

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8. The 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.

9. Shri 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

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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

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judge  for  the  purpose  of  disposal  of  the  interlocutory

application.

We have carefully considered the rival submissions and

perused the material available on record.

10. Rule  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.

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11. It 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.   

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12. We 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  lis

between the parties.

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13. For 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 expeditiously.  

14.  We 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

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not expressed any opinion whatsoever on the merits of the

case.

15. Appeal  is  accordingly  allowed,  with  no  order  as  to

costs.       

……………………………………J.    (Lokeshwar Singh Panta)

……………………………………J.       (B. Sudershan Reddy) New Delhi;  February   5, 2009       

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