Holding

Inspection of election papers under Rule 93 cannot be ordered without a clear case, and the trial court’s unreasoned order was set aside.

Summary

Fulena Singh filed an election petition challenging the election of Vijay Kumar Sinha on the ground of double voting and multiple enrolments. To substantiate his claim, Singh applied under Rule 93(1)(dd) of the Conduct of Election Rules, 1961 for inspection of voter registers in Form 17A. The trial court allowed the application without giving reasons, prompting an appeal to the Supreme Court. The Court held that inspection of election papers under Rule 93 is not a matter of course and may be ordered only when a clear case is made out; a laconic, unreasoned order cannot stand. Consequently, the Supreme Court set aside the trial court’s order and remitted the application to be considered along with the main election petition, directing a speedy disposal. The appeal was allowed.

Issues considered

Whether inspection of Form 17A registers under Rule 93(1)(dd) can be ordered as a matter of course without a clear case.
Whether a party may be permitted to inspect election papers for the purpose of a roving enquiry.
Whether the trial court's unreasoned order granting inspection is valid.
Whether the application for inspection should be decided together with the main election petition.

Legislation cited

Conduct of Election Rules, 1961s. Rule 93(1)(dd)

Subjects

election petitiondouble votingForm 17AConduct of Election Rulesinspection of election papersroving enquirysecrecy of ballotinterlocutory order

Judgment

[2009] 1 S.C.R. 748

A FULENA SINGH .r
v.
'
·.
VIJAY KUMAR SINHA & ORS. ......
~
(Civil Appeal No. 719 of 2009)
FEBRUARY 5, 2009
B
[LOKESHWAR SINGH PANTA AND B. SUDERSHAN
REDDY, JJ.]

Cqnduct of Election Rules, 1961 - r. 93(1)(dd) -
c Application during pendency of election petition - For
inspection of registers of voters in Form 17A - For
substantiating the allegations made in the election petition -
Allowed by trial court - On appeal, held: Inspection of election
papers cannot be permitted for the purpose of making a
D roving inquiry in order to fish out materials and to derive .....
support for one's own case - Inspection allowed without
assigning any reasons - Hence application remitted to trial
court for consideration alongwith the main petition.

Respondent filed election petition against the
E
appellant (returned candidate) alleging that double voting
was done by the relatives and supporters of the appellant.
In order to substantiate his allegations, respondent filed
an application under r. 93(1)(dd) of Conduct of Election ,;..
Rules, 1961 seeking inspection of the packets containing
F registers of voters in Form 17A. Trial Court allowed the
application. Hence, the present appeal. .ii
_ Allowing the appeal, the Court

HELD: 1. Rule 93 of Conduct of Election Rules, 1961,
G
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.
H 748
('
FULENA SINGH v. VIJAY KUMAR SINHA & ORS. 749

_,._ Inspection of election papers mentioned in detail in Rule A
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 for one's own case. A clear case is B
required to be made out for ordering the production and
-~-
inspection of election papers by the parties. [Para 10]
[753-E-G-H; 754-A-C]

2. It is true that the election petitioner adduced
evidence on his behalf by examining seven witnesses.
c
The 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 D
at more than one place." That is all the discussion about
the evidence and material available on record. 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 and allowed the application as a E
matter of course. 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, cannot be sustained .
.[Para 11] [753-H; 754-A-C] F

3. 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
G
the main election petition in order to finally resolve the
lis between the parties. Hence, the application filed by the
first respondent/election petitioner is remitted to trial court
for the consideration of the trial court along with the
election petition. [Paras 12 and 13] [754-F-G-H]
H
750 SUPREME COURT REPORTS (2009] 1 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 719 _..-
of 2009.

From the Judgment & Order dated 15.09.08 of the High
Court of Judicature at Patna (Election Tribunal) in Election
B Petition No. 1/2006.

Vikas Singh, Yunus Malik, Ravi Kishore, Amrita Narayana,
M. Sarada for the Appellants.

Ravi Shankar Prasad, Abhay Prakash, Himanshu Shekhar
C for the Respondents.

The Judgment for the Court was delivered by

B. SUDERSHAN REDDY, J. 1. Leave granted.
D 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
E 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
F 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 respondenU
petitioner is that he was defeated in the elections held in the
G 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
H
(

FULENA SINGH v. VIJAY KUMAR SINHA & ORS. 751
[B. SUDERSHAN REDDY, J.]

-""'- and supporters. The precise allegation, so far as we are A
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. B
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
c
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 D
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 resoondent no. 1 and if such void votes
are deleted by simple arithmetical calculations, respondent no. E
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 ~y securing the majority votes than the respondent no. 1." F
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
G
inter alia denying the averments made and allegations levelled
-, in the election petition.

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 appellanUrespondent. It is at ttiis stage H
752 SUPREME COURT REPORTS [2009] 1 S.C.R.

A 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
B 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
C 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.

8. The learned trial judge after referring to the pleadings
D 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.

E 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 .,.
F 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
G further submitted that secrecy of ballot is an important
consideration that should always weigh with the Court. Learned
senior counsel submitted that the evidence made available by
the first respondent is not sufficient for ordering any such
inspection. Lastly, it was contended that the learned trial judge
H ordered the application without recording any reason
FULENA SINGH v. VIJAY KUMAR SINHA & ORS. 753
[B. SUDERSHAN REDDY, J.]

whatsoever and therefore the impugned order is liable to be A
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 B
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 c
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 judge for the purpose of disposal
__,_ of the interlocutory application.
D
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 E
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 F
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
G
election papers by the parties.

11. It i~ 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 H
754 SUPREME COURT REPORTS (2009] 1 S.C.R.

A 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
B 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
c consideration in the main election petition which is still awaiting
trial and disposal.

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
D 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
E 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
F 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.
G
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
H
FULENA SINGH v. VIJAY KUMAR SINHA & ORS. 755
[B. SUDERSHAN REDDY, J.]

awaiting its adjudication ever since 2006. The appellant as well A
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.
B
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 applidation uninfluenced by any of the
observations made in this order since we have not expressed C
any opinion whatsoever on the merits of the case.

15. Appeal is according by allowed, with no order as to
costs.
D
K.K.T. Appeal allowed.