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PETITIONER: DR.  ANUP SINGH

       Vs.

RESPONDENT: SHRI ABDUL GHANI AND ANOTHER

DATE OF JUDGMENT: 14/08/1964

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. SHAH, J.C. AYYANGAR, N. RAJAGOPALA

CITATION:  1965 AIR  815            1965 SCR  (1)  38  CITATOR INFO :  RF         1974 SC1185  (16)

ACT: The Representation of the People Act (43 of 1951). ss. 81(3) and 90(3)-Scope of. Conduct of Election Rules, 1961, r. 73 (2) (d)-"Any mark  or writing by which the elector can be identified", meaning of.

HEADNOTE: The  Election Tribunal allowed the petition challenging  the appellant’s  election to the Council of States and  declared the respondent elected.  The appellant’s appeal to the  High Court was dismissed.  In his appeal to the Supreme Court, he contended  that  : (i) the High Court was in  error  in  not rejecting  the  election  petition under  s.  90(3)  of  the Representation  of  the  People Act (43 of  1951)  for  non- compliance  with the provisions of s. 81(3) of the Act,  and (ii)  the  High Court was in error in rejecting one  of  the votes which was in his favour. HELD  :  (i) As there was a substantial compliance  with  s. 81(3),  the petition could not be dismissed under s.  90(3). [41F] Ch.   Subba  Rao v. Member, Election Tribunal,  A.I.R.  1964 S.C. 1027, followed. (ii) As  the elector by his writing on the ballot paper  had left sufficient evidence of his identity which could lead to his  identification, the ballot paper was rightly  rejected. [48G] The  words "any mark or writing by which the elector can  be identified" in r. 73(2)(d) of the Conduct of Election  Rules mean   something   more   than   a   mere   possibility   of identification   but   do  not  require  actual   proof   of identification  before a vote can be invalidated.  All  that these  words  require  is that there  should  be  reasonable probability of identification by the mark or writing  (other than  that  permitted  by r. 37-A) and if there  is  such  a reasonable  probability of identification, the ballot  paper would be invalidated. [44C-E] Woodward v. Sarsons, (1875), L.R. 10 C. P. 733; Isaacson  v.

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Durant,  (1886)  IV  O’M & H 34; H.  L.  Lawson  v.  Colonel Chester Master, (1893), IV O’M & H 194; Henry Edward Duke v. Richard Harold, (1911) VI O’M & H 228, Lewis v. Shepperdson, [1948]  2  All E.R. 503, Regainald Pole Blundell  v.  Joseph Vardon,  (1907)  4 (Pt. 2) C.L.R. 1463, Kennedy  v.  Palmer, (1907)  4  (Pt. 2) C.L.R. 1481 and Kean v. Kerby  (1920)  27 C.L.R. 449, referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos.  141  and 142 of 1964. Appeals  from the judgment and order dated May 30,  1962  of the Punjab High Court, in F.A.0. Nos. 3/E and 4/E of 1962. G.   S. Pathak, Hardev Singh, Y. Kumar, Mohinder Narain,  S. N. Andley, and Rameshwar Nath, for the appellants. 39 T.   R. Bhasin, Rajinder Sachar and S. C. Malik, for respon- dent  No.  1 (in C.A. No. 141/64) and respondent No.  2  (in C.A. No. 142/64). The Judgment of the Court was delivered by Wanchoo  J.  These appeals on certificates  granted  by  the Punjab High Court arise out of an election to the Council of States by the Punjab Legislative Assembly and will be  dealt with  together  as they arise out of two  separate  election petitions  by two persons, challenging the election  of  the same person. There was an election to the Council of States by the Punjab Legislative Assembly in March 1962.  There were a number  of candidates  for three seats which had to be filled.  In  the present  appeals  we  are  concerned  with  two  candidates, namely,  Dr.  Anup Singh, appellant, and  Shri  Abdul  Ghani respondent.  Two of the seats were filled by Shri Chaman Lal and Shri Surjit Singh.  Though originally their election was also  challenged, that is not in dispute now.  The  position with respect to Dr. Anup Singh and Shri Abdul Ghani on first preference   votes  (the  election  being  on   proportional representation)  was  that Dr. Anup Singh got 36  votes  and Abdul   Ghani   35  votes.   Thereafter   preferences   were transferred  and Dr. Anup Singh got 3 6 - 3 votes  and  Shri Abdul  Ghani 3 5 votes.  In consequence Dr. Anup  Singh  was declared  elected along with the other two candidates  whose election  is not now in dispute.  This was followed  by  two election petitions, one by Shri Abdul Ghani and the other by Shri  Lachhman  Singh.  Originally the election of  all  the three  candidates  was  challenged  on  a  large  number  of grounds; but eventually the matter was pressed only  against the  election  of  Dr. Anup Singh and only  on  one  ground, namely,  that  certain votes cast in favour  of  Shri  Abdul Ghani  had been wrongly rejected and certain votes  cast  in favour  of  Dr.  Anup Singh  were  wrongly  accepted.   This challenge  was met by the appellant on two grounds.  In  the first  place be contended that the petitions were liable  to be  dismissed under s. 90(3) of the Representation  of.  the People  Act, No. 43 of 1951 (hereinafter referred to as  the Act) for non-compliance with s. 81 (3).  In the second place it was contended that there was no improper rejection of the votes  of  Shri Abdul Ghani and no  improper  acceptance  of votes of the appellant. These  were the two main questions before the Tribunal.   On the  first question, the Tribunal decided that the  election petitions   were   maintainable  inasmuch   as   there   was substantial  compliance with s. 81 (3) of the Act.   On  the second question relating to eight

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40 votes which were under challenge, the tribunal held that the three  votes  in  favour of Shri Abdul  Ghani  were  rightly rejected.  This decision of the tribunal has been upheld  by the High Court and is no longer in dispute before us.  As to the five votes in favour of Dr. Anup Singh, it was  conceded on  behalf  of the appellant that one was invalid.   Of  the remaining four, two were held to be valid and two were  held to  be  invalid on the basis of the decision of  the  Punjab High Court in Pala Singh v. Natha Singh. (1) Thereafter  the Tribunal  redistributed  the  votes  on  the  basis  of  its findings  and  declared  Shri  Abdul  Ghani  elected  as  on redistribution  Dr. Anup Singh received 333 votes and  Abdul Ghani 3 5 votes. Thereupon  there were two appeals to the High Court  by  the present  appellant and two points were urged on his  behalf, namely,(i)     that the election petitions should have  been dismissed under s.  90(3) of the Act as they did not  comply with  S.  81(3),  and (ii) that the Tribunal  was  wrong  in rejecting  the two ballot papers.  The High Court held  that there  was  substantial  compliance  with  s.  81  (3)   and therefore the petitions could not be rejected under s. 90(3). It  further held that one of the two votes in favour of  Dr. Anup  Singh  which  the Tribunal  had  invalidated  was  not invalid.   Lastly, it held that the second vote rejected  by the  Tribunal was rightly rejected.  The final  position  on this  basis was that Dr. Anup Singh got 34.3 votes and  Shri Abdul  Ghani  35  votes.   In  consequence  the  High  Court dismissed the two appeals.  Then followed two petitions  for certificates which were granted; and that is how the  matter has come up before us. Two points have been urged on behalf of the appellant before us.  In the first place it is contended that the High  Court was in ,error in not rejecting the election petitions  under s.  90(3) of the Act for non-compliance with the  provisions of s. 81(3).  Secondly, it is urged that the High Court  was in  error  in rejecting one of the votes, and that  if  that vote had not been rejected Dr. Anup Singh would have got 3 5 -  3 votes and Shri Abdul Ghani 3 5 votes and  the  election petitions  should have therefore failed.  On this aspect  of the matter therefore we have to consider the validity of one vote only. So far as the first point is concerned, the argument is that s.   81(3)  requires that "every election petition shall  be accompanied by as   many   copies  thereof  as   there   are respondents mentioned in the petition and one more copy  for the use of the Election Commission and every such copy shall be attested by the petitioner under his own signature to  be a true copy of the petition." In LXIV (1962) P.L.R. 1110. 41 this case the necessary number of copies were filed and each copy bore the signature of the petitioner concerned.  It May also  be mentioned that these copies were carbon  copies  of the  original and it is not in dispute that they  were  true copies thereof.  But the attestation required by s. 8 1 (3 ) was not there specifically on the copies.  Consequently, the appellant  contends  that there was no  compliance  with  s. 81(3)  and  in consequence the petitions  should  have  been rejected  under s. 90(3) which provides that  "the  Tribunal shall  dismiss  an election petition which does  not  comply with   the  provisions  of  section  81  ,  or  section   82 notwithstanding  that  it  has not  been  dismissed  by  the Election  Commission under section 85." It is urged that  in view  of the penalty provided for noncompliance with s. 8  1

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(3),  that  section  is mandatory and  has  to  be  strictly complied  with.   Inasmuch  as in this  case  there  was  no attestation, the petitions should have been rejected. An  exactly  similar matter came to be  considered  by  this Court in Ch.  Subba Rao v. Member, Election Tribunal.(1)  In that case also the copies were signed by the petitioner  but there  was no attestation in the sense that the words  "true copy  " were omitted above the signature of the  petitioner. This Court held that as the signature in original was  there in the copy, the presence of such original signature in  the copy  was sufficient to indicate that the copy was  attested as  a true copy, even though the words "true copy" were  not written  above  the  signature in the  copies.   This  Court further  held that there was substantial compliance with  s. 81(3)  of  the Act and the petition could not  be  dismissed under s.  90(3).   That case applies with full force to  the facts  of  the present case, and it must therefore  be  held that there was substantial compliance with s. 81 (3) and the petitions could not therefore be dismissed under s. 90(3). This  brings  us to the main question that has  been  argued before  us, namely. whether the Tribunal and the High  Court were  right in rejecting one of the ballot papers which  was marked Ex.  P-76.  The Tribunal’s judgment shows that it was inclined to hold that this ballot paper was not invalid, but following  the  judgment of the High Court in  Pala  Singh’s ’Case(2) it held this particular ballot paper to be invalid. When  the  matter came before the High Court, the  case  was placed  before a Full Bench of three Judges to consider  the correctness  of  the judgment in Pala Singh (3). It  may  be mentioned  that  judgment was concerned with a mark  on  the ballot paper and not with any writing thereon, and the  High Court in Pala Singh’s case (2) took the view that making  of any (1)A.I R. 1964 S.C.1027 (2)  LXIV (1962) P.L.R. 1110. 42 mark  would make the ballot paper invalid in view of  r.  73 (2)  (d) Pala Singh’s case(1) was reconsidered by  the  High Court  and  it held that on the whole Pala  Singh’s  case(2) could  not  be held to have been correctly  decided  in  the matter of a mark on the ballot paper in view   of    certain decisions of the English courts in that behalf.   But so far as Ex.  P-76 was concerned, the High Court took the    view that  was a case of writing and relying on the  decision  of Woodward v. Sarsons. (2) the High Court held by majority the ballot paper to be invalid. Rule 73 (2) (d) lays down as  follows "(2) A ballot paper shall be invalid on which (a) (b) (c) (d)  there  is any mark or writing by which the elector  can be identified." The  contention of the appellant is that before  any  ballot paper can be declared invalid under r. 73 (2) (d) because of the  existence of any mark or writing on it other than  that permitted  by r. 37-A, it has, to be shown that the  elector is actually identified because of the mark or writing.   Now what  r. 73 (2) (d) requires is (i) that there should  be  a mark  or  writing  on the ballot paper other  than  what  is permitted under r. 37-A, and (ii) that this mark or  writing should  be such that the elector can be  identified  because ,of  it.   There is no dispute in this case that  there  are both a mark and a writing other than the figure permitted by r.  37-A on this ballot paper.  The question is whether  the

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mark and the writing (other than that permitted by r.  37-A) which are both present on the ballot paper are such that the elector can be identified because of them. This raises the question as to what the words "by which  the elector can be identified" appearing in r. 73 (2) (d)  mean. The  contention  of the appellant is that these  words  mean that the mark or writing should be such that the elector  is actually identified because of them.  On the other hand  the contention  of the respondents is that it is  not  necessary that  the elector is actually identified by the presence  of the  mark or writing.  It is urged that it is enough if  the elector  might  possibly  be  identified  by  such  mark  or writing,  or at any rate the mark or writing should be  such as  would make it reasonable and probable that  the  elector can  be identified thereby.  Thus there are  three  possible interpretations of the words "by (1) LXIV 1962 P.L.C. 1110. (2)  (1875) L. R. 10 C. P. 733. 43 which the elector can be identified" appearing in r. 73  (2) (d),  namely-(i)  any mark or writing which  might  possibly lead to the identification of the elector, (ii) such mark or writing   as  can  reasonably  and  probably  lead  to   the identification of the elector, and (iii) the mark or writing should be connected by evidence aliunde with an elector  and it  should be shown that the elector is actually  identified by  such  mark- or writing.  The appellant presses  for  the third of these alternative constructions both in respect  of the  mark  and the writing while the respondents  press  the first  construction,  and in any case it is urged  that  the words do not go beyond the second construction. We are of opinion that the words cannot bear the first  con- struction, namely, that any mark or writing other than  that permitted  by  r.  37-A which might  possibly  lead  to  the identification  of  the elector would  be  covered  thereby. When  the  legislature  provided that the  mark  or  writing should be such that the elector can be identified thereby it was not providing for a mere possibility of  identification. On this construction almost every additional mark or writing would  fall within the mischief of the provision.   If  that was  the intention the words would have been different,  for if  a mere possibility of identification had been enough  to invalid-ate  the  ballot paper, cl. (d) of r. 73  (2)  would have  read something like this : "that there is any mark  or writing  other  than that permitted by r.  37-A".   But  the words  used by the legislature are "any mark or  writing  by which  the  elector can be identified", and ’  this  in  our opinion  implies that there should be something more than  a mere  possibility  of identification, before a vote  can  be invalidated.   This may happen when some pre-arrangement  is either proved or the marks are so many and of such a  nature that  an  inference of pre-arrangement may be  safely  drawn without further evidence. We  are  further of opinion that the third  construction  on which the appellant relies also cannot be accepted.  If  the intention of the legislature was that only such votes should be invalidated in which the elector was actually  identified because  of the mark or writing, the legislature  would  not have  used  the  words "the mark or  writing  by  which  the elector  can be identified".  These words in our opinion  do not mean that there must be an actual identification of  the elector  by  the  mark or writing before  the  vote  can  be invalidated.  If such was the intention of the  legislature, cl. (d) would have read something like "any mark or  writing which identifies the elector".  But the words used are  "any

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mark  or writing by which. the elector can  be  identified", and  these words in our opinion mean something more  than  a mere possibility of identification but do not 44 require  actual proof of identification before the vote  can be  invalidated,  though by such proof,  when  offered,  the disability would be attracted. It  seems to us therefore that the second construction,  out of  the three alternatives we have mentioned- above, is  the real construction of these words.  When the legislature used these  words  it was providing that any mark or  writing  by which the elector can reasonably and probably be  identified would  invalidate  the  ballot paper.   The  words  "can  be identified" in our opinion imply something more than a  mere possibility of identification; at the same time they do  not in  our  opinion  require that before the  ballot  paper  is rejected   the   elector’s   identity   must   be   actually established.  Truly construed therefore the words mean  that the  mark or writing should be such that the elector can  be identified thereby with reasonable probability.  Thus it  is not  the  mere  possibility  of  identification  which  will invalidate the vote under r. 73(2):(d), nor is it  necessary that there should be certain identification before the  vote is invalidated.  All that these words require is that  there should  be reasonable probability of identification  by  the mark  or writing (other than that permitted by r. 37-A)  and if there is such a reasonable probability of identification, the ballot paper would be invalidated. Obviously  when  these  words mean that there  should  be  a reasonable  probability  of identification by means  of  the mark or writing there would be a difference in the  approach of  the returning officer as well as of the tribunal and  of the  court when dealing with a mark as distinguished from  a writing.   So far as the mark is concerned it has by  itself very  little  value  for  purposes  of  identification   and therefore in the case of marks the returning officer or  the tribunal  or  the court may require evidence  to  show  that there was arrangement between the elector and the  candidate to  put a certain mark on the ballot paper which would  lead to  his  identification.  But in the case of a  writing  the mere presence of the writing in certain circumstances  would be  sufficient  to  warrant the returning  officer,  or  the tribunal  or  the  court  to say that  the  elector  can  be identified  by  the  writing.  Whether the  elector  can  be identified by the writing would always be a question of fact in  each  case  and in that connection  the  extent  of  the writing  on  the  ballot paper may have  a  bearing  on  the question whether the elector can be identified thereby.  For example,  if the writing consists of, say, a capital  letter ’A’,  it  may  be possible for the  returning  officer,  the tribunal  or the court to say that there is  not  sufficient -material  in  the  writing  by which  the  elector  can  he identified.  But 45 if the writing consists of a number of words it will be open to  the  returning  officer after taking  into  account  the entire  circumstances  to  say whether the  elector  can  be identified  by the presence of so much writing.  In  dealing with  this  question the size of the  constituency  and  the number of words may not be irrelevant. We    may  also   add that when scrutinising the ballot papers under r. 37-A   and considering  whether  a particular ballot  paper  should  be rejected,  it is not necessary for the returning officer  to take  evidence,  though  if any party is  prepared  to  give evidence  then and there while the scrutiny is going on  and

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votes  are  being counted, there is nothing to  prevent  the returning  officer  from taking such evidence  to  determine whether the mark or writing is such that the elector can  be identified  thereby.   But  generally evidence  may  not  be forthcoming  and it will be for the returning  officer,  the tribunal  or the court to decide on the ballot paper  as  it stands whether the mark or writing is such that the  elector can  be  identified thereby.  As we have  said  already  the difficulty  is  greater  in the case of  a  mere  mark;  the difficulty  may be less in the case of a  writing  depending upon  the amount of writing that is available on the  ballot paper and it will be for the returning officer, the tribunal or   the   court  in  each  case  to  decide  in   all   the circumstances,  whether the writing is of such a nature  and of such an extent that the elector can be identified by it. Similar  provisions exist in the English law and  have  been the  subject of decisions by English courts.  In  Woodward’s case(1)  the validity of voting papers which bore  marks  as well as writing other than permitted under the rules came up for consideration. ,So far as the marks were concerned  they consisted of two crosses instead of one as required by rule, and  the  court observed that in such a case if  there  were evidence  of an arrangement that the voter would  place  two marks,  so as to indicate that it was lie, that  voter,  who bad  used  that  ballot  paper,  then,  by  reason  of  such evidence,  such  double mark would be a mark  by  which  the voter  could  be identified, and then the paper,  upon  such proof being made, should be rejected.  But the mere fact  of there being two such crosses is not a substantial breach  of the  statute.   As  to the writing  on  two  ballot  papers, however, the Court held with some hesitation that it  should disallow them, and the rule was put this way :               "We  yield  to the suggestive  rule  that  the               writing  by  the  voter of  the  name  of  the               candidate  may  give  too  much  facility,  by               reason,  of the handwriting, to  identify  the               voter". (1) (1875) L. R. 10 C.P. 733. P./64-4 46 The  question  again came to be considered  in  Isaacson  v. Durant(1) (popularly known as Stepney case).  In that case a certain name had been written at the back of the paper and a question  arose whether that writing was such as to lead  to the  identification  of the voter.  The two  learned  Judges constituting the court differed on this point.  Field J. was not even sure whether the voter had written the name as;  it was  at  the back of the ballot paper.  Denman  J.  however, thought that the case was covered by Woodward’s case(2)  and put it thus at p. 42 :               "Now  I  take  the  decision  in  Woodward  v.               Sarsons  to  amount to this,  not  that  every               departure  from  a simple cross is a  mark  by               which  the  voter can be identified  a  double               cross  for instance was allowed by the  Court-               but that where the name of the candidate,  not               of  the  voter, is written in  full  upon  the               ballot-paper,  the  vote  shall  be   invalid,               because that is a mark by which the voter  can               be  identified.  The principle is this :  that               where  a man has once written a name  in  full               upon   a   paper  it  is   evidence   of   his               handwriting,  and evidence of his  handwriting               is evidence of the identity of the man."               The  matter  was  again considered  in  H.  L.

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             Lawson v. Colonel Chester Master(3) (known  as               Cirencester  case)  and  Hawkins  J.  put  the               matter thus at p. 198:               "We  think we ought to adhere to the  language               of  the  statute itself, which says  that  the               mark must be mark by which the voter can  (not               might  possibly)  be identified,  whether  the               mark is such, is a matter of fact." The  matter again came up for consideration in Henry  Edward Duke  v. Richard Harold.(4) There the voter had written  the words,  "Up,  Duke!" against the name of the  candidate  for whom he was voting, and the question that arose specifically was  whether  the  rule  in  Woodward’s  case(2)  had   been invalidated by subsequent cases, Ridley J. said that he  did not "think that subsequent cases have invalidated the  rule- not really. Finally we may refer to the case of Lewis v.  Shepperdson(5) where  the rule in Woodward’s case(2) which was followed  in Cirencester case(3) was adhered to.  The law in England thus (1) (1886) TV O’M & H 34. (2)  (1875) L.R. 10 C.P. 733. (3) (1893) IV O’M & H 194. (4)  (1911) VI O’M & H 228. (5) (1948) 2 All E. R. 503. 47 appears  to  be  in  accord with what we  think  to  be  the interpretation of the crucial words in r. 73 (2) (d). Learned  counsel for the appellant however refers  to  three cases  from Australia.  In Reginald Pole Blundell v.  Joseph Vardon(1),  the court was dealing mostly with marks and  not with  writing  except in one case where the word  "yes"  had been  written.   The vote was held to be valid; but  it  was remarkable  that the Cirencester case(1) was followed.   The other  case is Kennedy v. Palmer(2).  In that case also  the Court followed Cirencester case(3) and that was also a  case mainly dealing with marks and not with writing. In Kean v. Kerby (4) what had happened with one of the votes was that the presiding officer did not write the name of the candidate  on the ballot paper as he should have done.   The voter  apparently  thought that he himself had to  fill  the name  and  wrote  "McGrath"  and filled  in  the  figure  1. Consequently it was urged that as the voter had written  the name of the candidate, the vote was invalid on the basis  of the  case  of Woodward(5).  Isaacs J. decided in  that  case that the vote was valid.  He referred to Woodward’s case  (5 ) and said that he substantially agreed with that case.  But the  case in question was treated as a special case  because the presiding officer had not written the name of the candi- date  as he should have done and the voter thought  that  he should  write it.  This decision therefore does not  in  any way  affect  the decision in Woodward’s case(6) and  if  the actual decision appears to be inconsistent with the ratio of Woodward’s  case(7),  it can well be said that  the  special facts  before  the  court, it  was  thought,  justified  the departure  from  that  view.  It seems  therefore  that  the Australian  law  on the subject is not  different  from  the English  law  and  it is a question of  fact  in  each  case whether looking at the writing or mark on the ballot  paper, the returning officer, tribunal or the court is able to come to  a conclusion that the mark or writing is such  that  the voter  can be identified thereby in the sense in  -which  we have explained those words above. This  then being the construction to be placed on the  words "by  which  the elector can be identified" we  have  to  see whether ballot paper Ex.  P-76 bears any mark or writing  by

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which the elector can be identified.  Besides the figures 1, 2  and  3 which were permissible under r. 37-A.  the  ballot paper  in question also bears casses in each case.  A  cross however is in our opinion a slender (1)  (1907) 4 (Pt. 2) C.L.R. 1463. (2)  (1893) IV O’ M & H 194. (3)  (1907) 4. Pt. 2 C.L.R. 1481. (4)  (1920) 27 C.L.R. 448. (5) (1875) L.R. 10 C.P. 733. 48 basis  on  which the elector can be  reasonably  identified. Therefore we shall overlook the crosses.  After the cross we find the words "One, Two, Three" written in each case  along with the figurer, "1, 2, 3" which come last.  The contention on  behalf  of the appellant is that the  words  "One,  TWo, Three  were  really written as a matter of emphasis  and  it cannot  be said that the voter can be identified by  writing these  words.   Now  there is no dispute  that  these  words constitute the writing of the elector on this ballot  paper, and  the only question is whether by this writing he can  be identified.   Applying  the interpretation of the  words  we have given above, the question is whether this writing is of the  nature and extent which would be reasonably  sufficient to  lead to the identity of the elector.  We are of  opinion that the writing is sufficient in extent, particularly  when we bear in mind a small constituency of 152 electors and  it would  in  our  opinion be right to say  that  there  was  a reasonable probability of the identification of the  elector by  this writing which he had put on the ballot  paper.   To say  that the elector merely wanted to emphasise his  choice is of no assistance to the appellant if the writing is of  a nature  and extent that it can with  reasonable  probability lead  to the identification of the elector.  In the  present case  we  have no doubt that the writing was  of  sufficient extent  and can lead to the identification of  the  elector. As Denman J. put it in the Stepney case(1), the elector here has  by  his  handwriting left sufficient  evidence  of  his identity and can be identified thereby.  We may add that  it is  not necessary, as the majority of the learned Judges  of the High Court seem to think, that the returning officer  in the peculiar circumstances of this case, being the Secretary of the Legislative Assembly might be knowing the handwriting of  the members.  Even if he does not know the  handwriting, the  ballot paper would be invalidated if the writing is  of the nature and extent that it can lead to the identification of  the elector.  In the present case we have no doubt  that by writing the words "One, Two.  Three" on the ballot paper, the,  elector has left sufficient evidence of  his  identity which  can lead to his identification.  In the  result  this ballot  -paper  was rightly rejected.  In this view  of  the matter  the conclusion of the High Court is correct and  the appeals must fail. We therefore dismiss the appeals with costs--one set hearing fee. Appeals dismissed (1) (1886) IV O’M & H 34. 49