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PETITIONER: MANPHUL SINGH

       Vs.

RESPONDENT: SURINDER SINGH

DATE OF JUDGMENT11/11/1974

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. KHANNA, HANS RAJ

CITATION:  1975 AIR  502            1975 SCR  (2) 680  1975 SCC  (1) 260  CITATOR INFO :  RF         1975 SC2117  (14)

ACT: Representation  of the People Act, 1951-When a  party  could ask for inspection of counterfoils of ballot papers.

HEADNOTE: The  respondent  in his election  petition  challenging  the election  of  the appellant alleged that a large  number  of votes were cast in favour of the appellant by  impersonating dead and absentee voters and that in some cases some persons polled their votes twice or more than twice in favour of the returned  candidate by registering themselves as  voters  at two  or  more places in the  constituency.   The  respondent prayed for the production of the counterfoils of the  ballot papers  to  prove the genuineness of the signatures  of  the voters.  Before the High Court the appellant contended  that the counterfoils should not be allowed to be produced unless a  prima facie case for inspection was made out.   When  the High  Court  allowed the inspection of two  counterfoils  of ballot papers to confirm the oral evidence of the  witnesses that  they  had impersonated two voters by  signing  in  the counterfoils the appellant came in appeal to this Court  and the appeal was dismissed.  This Court then pointed out  that nothing  could  be  clearer  or  mom  reasonable  than   the procedure  suggested by the petitioner and accepted  by  the High  Court.  After examining the evidence of the  witnesses recorded  then the High Court found prima facie  that  there had  been  personation in about 310 cases  and  allowed  the petitioner to inspect the counterfoils of the ballot  papers relating to these voters. On appeal to this Court it was contended that the High Court did  not apply its mind to judge the quality of evidence  to see if there had been a prima facie case. Dismissing the appeal, HELD  : (1) In some cases the ends of justice would make  it necessary  for the Tribunal to allow a party to inspect  the ballot papers and consider his objections about the improper acceptance  or improper rejection of votes tendered  by  the voters  at any given election but 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.    The

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allegations in support of the prayer for inspection must not be  vague or indefinite; they must be supported by  material facts and prayer made must be bona fide one. [683F-G; 684A] Dr.   Jagjit Singh v. Giani Kartar Singh, A.I.R.  1966  S.C. 773, Shashi Bhushan v.   Prof.    Balraj  Madhok  and   Ors. [1972] 2 S.C.R. 177 followed. (2)  On  the material before the Court it could not be  said that  the  High Court acted arbitrarily in taking  the  view that  it has taken.  The High Court classified  the  various types  of  impersonation  and  came to  the  view  that  the evidence  of  these  witnesses,  if  unrebutted,  would   be sufficient  to prove the allegation of impersonation.   This means that the High Court was satisfied that there was prima facie  case and the matter required  further  investigation. [684D-E]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 739 (NCE) of 1974. Appeal  by Special Leave from the Judgment and  Order  dated the  4th February 1974 of the Punjab and Harvana High  Court in  Civil Misc.  Petn.  No. 158-E of 1973 in Election  Petn. No. 45 of 1972. R.   K.  Garg, S. C. Agarwala and S. S. Bhatnagar,  for  the appellant. 681 Bakhtawar Singh Ch.  Manmohan Singh, D. N. Mishra and J. B.- Dadachanji, for the respondents. The Judgment of the Court was delivered by GUPTA,  J.-In  this appeal by special  leave  the  appellant questions  the propriety of an order made by the High  Court of Punjab and,’ Haryana at Chandigarh in the course of trial of an election petition allowing the petitioner’s experts to inspect the counterfoils of the ballot papers of voters  who had  been  found  by the Court "prima  facie  to  have  been impersonated". The  facts leading to the order under appeal are briefly  as follows.   In  the  election  held on  March  11,  1972  the appellant  Shri  Manphul Singh was elected  to  the  Haryana Vidhan  Sabha  from the Jhajjar Constituency  defeating  his only  rival, Shri Surinder Singh, the respondent before  us, by a margin of 265 votes.  Shri Surinder Singh, referred  to hereinafter  as the petitioner, filed an  election  petition challenging  the  election  of  the  returned  candidate  on various allegations of which the following are material  for the present purpose               (1)   28  votes  were cast in  favour  of  the               returned    candidate    by    some    persons               impersonating               voters  who   were               dead.               (2)   710 absentee voters were impersonated by               persons  who polled their votes in  favour  of               the returned candidate.               (3)   158   government   servants   who   were               registered  as voters in the Constituency  but               were not present in their respective  villages               and   did   not   cast   their   votes,   were               impersonated  and their votes were  polled  in               favour of the returned candidate.               (4)   149 persons, registered as voters at two               or more different places in the  constituency,               polled their votes twice or more than twice in               favour of the returned candidate.

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In  an application filed on December 1, 1972 the  petitioner suggested  a  procedure to enable him to prove his  case  of impersonation  and  double voting.  It was  stated  that  he would  produce  genuine  voters  who  should  be  shown  the counterfoils  of  the  ballot papers  to  test  whether  the counterfoils  carried their genuine signatures and for  this purpose   the  petitioner  asked  for  production   of   the counterfoils.    This  application  was  pending  when   the petitioner  started examining his witnesses and  the  prayer was  renewed  when  one Ranbir Singh, P.W. 17,  was  in  the witness  box.   The  prayer was opposed  on  behalf  of  the returned  candidate  but the High Court by its  order  dated January  5, 1973 allowed inspection of two  counterfoils  of ballot  papers to confirm the oral evidence of  the  witness that  he had impersonated two voters by signing their  names in the counterfoils. 682 It  appears that from an earlier interlocutory order  passed in  this  election  dispute,  the  returned  candidate   had preferred  an appeal to this Court which was dismissed.   In the  Judgment in that case, reported in AIR 1973  S.C.  2158 (Manphul  Singh v. Surinder Singh), this Court  observed  at page  2162  of  the report  referring  to  the  petitioner’s aforesaid application dated December 1, 1972               "In  the application filed in support of  the,               petition  for  production  of  records  it  is               pointed out that the evidence is to be led  by               the production of ’genuine voter and he is  to               shown  the  counterfoil whether it  bears  his               signature  or not and then whether be in  fact               polled  his vote or not or somebody  else  had               cast  his  vote.  It was  specifically  stated               that  the petitioner will pray for  inspection               of  ballot papers when he succeeds in  proving               that  they have not cast their votes and  have               been  impersonated.  Nothing could be  clearer               or more reasonable than this." Obviously,  in  this context "proving" meant  proving  prima facie,  or there would not have any necessity  of  examining the counter-foils. On December 17, 1973 the High Court allowed the prayer  made on  behalf  of  the petitioner  to  allow  two  finger-print experts  named  by  the  petitioner  to  compare  the  thumb impressions  of  some  of  the  witnesses  with  the   thumb impressions  on the relevant counterfoils.  On December  18, 1973 the returned candidate made an application,  registered as  Civil Miscellaneous Application No. 158-E/73,  on  which the  order under appeal was passed on February 4, 1974.   In that  application the returned candidate contended that  the counterfoils  were  secret documents  and  their  inspection should  not  be  all-owed  unless a  prima  facie  case  for inspection was made out and that the Court’s order  allowing inspection at that stage when there was no prima facie  case amounted  to a fishing enquiry not permissible in  law;  the prayer  made  in the application was for revoking  the  per- mission  granted  to the finger-print experts cited  by  the petitioner  to  inspect the counterfoils of  ballot  papers. The application also included several other grievances which the Court found were of substance and the order disposing of the  application  was  to  that  extent  in  favour  of  the petitioner.  It is therefore not necessary to refer to these other grievances for the present purpose. In  disposing  of  the  application  the  High  Court   also proceeded on the footing that "the person seeking inspection of the counterfoils must prove a prima facie case in support

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of  his  allegation  before the  counterfoils  can  be  made available  to him".  In the course of the Judgment the  High Court further observed that "the secrecy of the ballot would be allowed to be violated only if a Prima facie case is made out by the petitioner in support of his allegation".  Having examined  the evidence of the witnesses recorded till  then, the  High  Court  found  prima facie  that  there  had  been impersonation   in   about  310  cases   and   allowed   the petitioner’s  experts  to inspect the  counterfoils  of  the ballot papers pertaining to these 310 voters.  The High 683 Court  tabulated  the  result  of  the  examination  of  the evidence  of  the witnesses in seven lists appended  to  its Order marked with the letters, A, B, C, D, E, F and G.  List A  contains  particulars of dead voters who are  alleged  to have  been  impersonated.   They are 5 in  number.   List  B includes  the  particulars of voters examined  on  oath  and found prima facie to have been impersonated on the basis  of their  own  testimony.  The number of such  voters  is  126. List C contains the particulars of voters who appeared prima facie to have been impersonated ;upon the evidence of  P.Ws. 17  and 472.  They are four in number.  List D sets out  the particulars of voters who had appeared as witnesses for  the petitioner  but  deposed  against him, but  who  were  found prima, facie to have been impersonated from the,  deposition of  other witnesses.  Such voters are 15 in number.  List  E contains  particulars  of  those  witnesses  who  had   been declared hostile to the petitioner but who were found  prima facie to have been impersonated from the deposition of other witnesses.  Their number is 13.  List F includes particulars of voters not examined as witnesses but who were found prima facie to have been impersonated from the deposition of other witnesses.  The number of such voters is 48, List G contains particulars  of  multiple voting.  This  list  includes  two categories : (a) those who polled twice in the constituency, and (b) those who polled once in the constituency and  again in   another  constituency.Category  (a)  contains  17   and category (b) contains 46 such cases.      The  legal  position as regards  inspection  of  ballot papers   or  their  counterfoils.  now  seems  to  be   well established.In Dr. Jagjit Singh v., Giani Kartar Singh, (AIR 1966 S.C. 773), this Court observed :               "An  application  made for the  inspection  of               ballot  boxes must give material  facts  which               would enable the Tribunal to consider    whether               in  the interest 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......               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 jet a  chance  to               make a roving or fishing enquiry in the ballot               boxes  so as to justify their claim  that  the               returned  candidates election is void.  We  do               not propose to lay down any hard and fast rule               in this matter; indeed, to attempt to lay down               such a rule would be inexpedient and unreason-               able."

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The principle stated. in Dr. Jagjit Singh’s case (Supra) was reaffirmed  by this Court in Sashi Bhusan v.  Prof.   Balraj Madhok  and Ors, [1972] 2 S.C.R. 177.  ’It was  observed  in Sashi Bhusan’s case:               "Facts  naturally  differ from case  to  case.               Therefore  it  is dangerous to  lay  down  any               rigid  test  in  the  matter  of  ordering  an               inspection.  It is no doubt true that a Judge               684               while  deciding the question of inspection  of               the  ballot  papers  must  bear  in  mind  the               importance  of  the  secrecy  of  the   ballot               papers.   The  allegations  in  support  of  a               prayer  for  inspection must not be  vague  or               indefinite; they must be supported by material               facts and prayer made must be a bona fide one.               If. these condition’s are satisfied, the Court               will be justified in permitting inspection  of               ballot   papers.    Secrecy   of   ballot   is               important,  but doing justice  is  undoubtedly               more important........ That in proceeding to consider the evidence, the High  Court was  aware of the correct legal position is clear  from  its Judgment.   We  have quoted above the  observation  of  this Court in the earlier appeal arising out of the same election petition that "nothing could be clearer or more  reasonable" than the procedure suggested by the petitioner and  accepted by  the  High Court.  Mr. Garg appearing for  the  appellant made a grievance that the High Court did not apply its  mind to  judge the quality of the evidence in order to  find  out whether really there was a prima facie case and depended  on the  volume of the evidence adduced in making  the  impugned order.   We  do not think that the criticism  is  justified. The High Court classified the various types of impersonation alleged  into  seven  categories  mentioning  all   relevant particulars  including the names of witnesses on whose  evi- dence  the allegation in each category was based.  The  High Court was of the view that the evidence of these  witnesses, if  unrebutted, would be sufficient to prove the  allegation of  impersonation.  This means the High Court was  satisfied that  there was a prime facie case and the  matter  required further  investigation; on the material before us we  cannot say  that  the High Court acted arbitrarily in  taking  this View.  Mr. Garg also contended that there was no material to support the allegation of multiple voting.  This is what the learned  Judge of the High Court says on this aspect of  the case  :  "I  have been taken through various  parts  of  the electoral  roll by learned counsel ’for the  petitioner  who contends  that  each  one of such persons  is  shown  to  be registered at two places in the constituency or in different constituencies  by  reason  of  the fact  that  his  or  her description as well as the description of his or her  family members  or  some  of them given in the two  places  is  the same...... It is common ground between the parties that  the votes  of such voters have been polled at both  the  places. In respect of these 63 persons therefore the petitioner must ’be held to have adduced prima facie evidence in support  of his allegations.  Their Particulars are specified in List  G appended  to this order." This extract from the Judgment  of the High Court proves that Mr. Garg’s contention is  without substance. For  the  reasons  stated above this  appeal  fails  and  is dismissed with costs. P.B.R.                 Appeal dismissed. 685

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