MARKIO TADOversusTAKAM SORANG & ORS.

                      [2012] 4 S.C.R. 661


                        MARKIO TADO                                  A
                              v.
                  TAKAM SORANG & ORS.
               (Civil Appeal No. 1539 of 2012)
                     FEBRUARY 02, 2012
                                                                     B
       [DEEPAK VERMA AND H.L. GOKHALE, JJ.]

       Representation of the People Act, 1951 - ss. 100(1)(d),
 123(8) and 135A - Conduct of Election Rules, 1961 - r.93 -
Allegation of double voting - Prayer for production and              C
inspection of election papers - Legislative Assembly elections
- Appellant declared elected defeating his nearest rival the first
respondent - First respondent filed election petition
challenging election of appellant on the ground of corrupt
practice of booth capturing - Single Judge of High Court             D
framed necessary issues - Evidence of first respondent
recorded - Subsequently, first respondent filed application
making allegation that double voting was effected on behalf
of appellant, and therefore it was necessary to get the record
of the voters' counterfoils from the polling stations -              E
Application allowed by Single Judge and order passed calling
for record of registers of voters' counterfoils - On appeal, held:
 The election petition filed by first respondent made the
grievance of booth capturing - Ground of impersonation or
double voting was not pleaded in the petition, nor was any           F
issue framed thereon for the trial - Statement of first
respondent that the appellant had appointed fake polling
agents for the first respondent was a clear after thought, since
if it was so, he would have pleaded the same in the election
petition itself - He did not mention names of the persons
allegedly involved in booth capturing - Even with respect to         G
impersonation, the only instance pointed out was that of one
person, but it was not stated in the petition or in evidence as
to who voted in his place - Having failed to place any material
                              661                                    H
    662      SUPREME COURT REPORTS                  [2012] 4 S.C.R.


A with respect to either booth capturing or impersonation, the
  first respondent was trying to make fishing and roving inquiry
  to improve his case by calling for the record of the voters
  register, in support of his grievance of double voting - In
  absence of any evidence with respect to the persons who at
B the instance of the appellant allegedly captured the booths
  or made double voting or impersonation, no such inference
  could have been drawn against the appellant - The Single
  Judge, therefore, was clearly in error in allowing the
  application made by the first respondent - Besides, the ground
c of improper reception requires a candidate to show as to how
  the election in so far as it concerns the returned candidate
  was materially affected - In facts and circumstances of the
  case, the application of first respondent could not have been
  entertained even on the ground of improper reception in the
  absence of prima facie case that the result of the election had
0
  been materially affected -Inspection of ballot papers and
  counterfoils should be allowed very sparingly, and only when
  it is absolutely essential to determine the issue - 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
E with a view to fish materials for declaring the election to be
  void - Order passed by Single Judge of High Court
  accordingly quashed.

          Representation of the People Act, 1951 - ss.123(8), 135A
F and 100(1)(d) - Elections - Corrupt practices - Booth capturing
    as against impersonation or double voting - Held: The main
    element of booth capturing is use of force or intimidation - As
    against that impersonation or double voting involves cheating
    or deception - Thus, these two grounds deal with two different
G   aspects of corrupt practices.

          Elections - Election petition - Pleadings - Held: In an
    election petition, one has to plead the material facts at the
    outset, and the failure to plead the same is fatal to the election
    petition - Besides, no evidence can be led on a plea which is
H
     MARKIO TADO v. TAKAM SORANG & ORS.                 663


not raised in the pleadings and no amount of evidence can       A
cure the defect in the pleadings.

     The appellant and the first respondent contested the
election to the Arunachal Pradesh Legislative Assembly
from 20-Tali (ST) Assembly Constituency, wherein the            8
appellant was declared elected, defeating his nearest rival
the first respondent, by 2713 votes. The first respondent
filed Election Petition challenging the election of appellant
 on the ground of corrupt practice of booth capturing. A
Single Judge of the High Court framed the necessary
 issues and the evidence of the first respondent was            C
 recorded. Thereafter, the first respondent filed application
viz. Mis Case No. 05 (AP) of 2010 alleging that some of
the voters of 8 polling stations had double entries in
different 38 polling stations of 13 Itanagar (ST) Assembly
Constituency; that 30% of voters of Tali Constituency           D
from those 8 polling stations had cast their votes in
Itanagar and not in Tali, and in their place double voting
was effected on behalf of the appellant, and therefore it
was necessary to get the record of the voters'
counterfoils (in Form 17A) from the 38 polling stations         E
under 13-(ST) Itanagar Assembly Constituency. The
Single Judge held that the allegation made by the first
respondent came under the purview of booth capturing
because votes by impersonation is one of the modus
operandi adopted towards accomplishment of securing             F
votes by use of illegal method or illegal resource and that
the official record would be the most reliable evidence
where there was impersonation, and thereafter passed
order calling for the record of registers of voters
counterfoils in form 17A of 38 polling stations of 13-(ST)      G
Itanagar Assembly Constituency.
     In the instant appeal, the appellant submitted that the
High Court erred in allowing the application filed by the
first respondent inter alia for the reasons 1) that the H
ground of impersonation and double voting was not
    664      SUPREME COURT REPORTS             [2012] 4 S.C.R.


A raised in the election petition at all; 2) that impersonation
  or double voting would come in the category of 'improper
  reception of votes' and for invoking this ground one has
  to plead that the election was materially affected by such
  improper reception of votes which the first respondent
B had not done; 3) that 'improper reception' is different from
  'booth capturing' which is a separate corrupt practice and
  4) that the first respondent had filed the election petition
  only on the ground of booth capturing and not on the
  basis of improper reception of votes and he cannot be
C permitted to improve upon it from stage to stage.

          Allowing the appeal, the Court

       HELD:1.1. In an election petition, one has to plead
  the material facts at the outset, and the failure to plead
D the same is fatal to the election petition. Besides, no
  evidence can be led on a plea which is not raised in the
  pleadings and no amount of evidence can cure the defect
  in the pleadings. [Para 16) [676-B, CJ

E     1.2. In the present case, the election petition filed by
  the first respondent made the grievance of booth
  capturing which is a corrupt practice covered under
  Section 123 (8) of the Representation of the People Act,
  1951. Committing a corrupt practice is a ground to
  declare an election void under Section 100 (1) (d) of the
F Act. Booth capturing is also made an offence under
  Section 135 A of the Act, and the term 'booth capturing'
  is spelt out in the explanation to that section. As far as
  impersonation or double voting is concerned, such
  actions would amount to improper reception of votes
G which is a separate ground for declaring an election to
  be void under Section 100 (1) (d) (iii) of the said Act. This
  ground was not pleaded in the petition, nor was any
  issue framed thereon for the trial. As can be seen from
  the explanation to Section 135A, the main element of
H booth capturing is use of force or intimidation. As against
     MARKIO TADO v. TAKAM SORANG & ORS.                 665


that impersonation or double voting involves cheating or       A
deception. Thus, these two grounds deal with two
different aspects of corrupt practices. [Paras 17, 18] (676-
D-E; 677-G-H;678-A]

     1.3. The statement of the first respondent that the       8
appellant had appointed fake polling agents for the first
respondent was a clear after thought, since if it was so,
he would have pleaded the same in the election petition
itself. He has not mentioned the names of the persons
allegedly involved in booth capturing. Even with respect       C
to impersonation, the only instance pointed out was that
of one person, but it was not stated in the petition or in
evidence as to who voted in his place. It is thus obvious
that having failed to place any material with respect to
either booth capturing or impersonation, the first
respondent was trying to make fishing and roving inquiry       D
to improve his case by calling for the record of the voters
register from Itanagar Constituency, in support of his
grievance of double voting. In the absence of any
evidence with respect to the persons who at the instance
of the appellant allegedly captured the booths or made         E
double voting or impersonation in Tali Constituency, no
such inference could have been drawn against the
appellant. The Single Judge, therefore, was clearly in error
in allowing the application made by the first respondent.
[Para 19] (678-D-H]                                            F

     1.4. Besides, the ground of improper reception
requires a candidate to show as to how the election in
so far as it concerns the returned candidate was
materially affected, in view of the requirement of Section     G
100 (1) (d) of the Act of 1951. First respondent has stated
that there were some 1304 double entries of voters. The
allegation of the first respondent on evidence was only
with respect to Roing and Ruhi polling station. The votes
received by the appellant in both these polling stations
                                                               H
    666      SUPREME COURT REPORTS                 [2012] 4 S.C.R.


A   put together come to 1873. The appellant has won with
    a margin of 2713 votes. That being so the application
    could not have been entertained even on that ground in
    the absence of prima facie case that the result of the
    election had been materially affected. [Para 20J [649-A-CJ
B
      1.5. The inspection of ballot papers and counterfoils
  should be allowed very sparingly, and only when it is
  absolutely essential to determine the issue. 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
C inquiry with a view to fish materials for declaring the
  election to be void. [Para 23J [682-C, DJ

      1.6. The order passed by the High Court is illegal and
  unsustainable. The judgment and order passed by the
D Single Judge of High Court in Misc. Case (E.P.)
  No.05(AP)/2010 in the Election Petition is hereby quashed
  and set-aside. The Misc. Case (E.P.) No.05(AP)/2010 is
  hereby dismissed. [Paras 25, 26J [682-H; 683-A, BJ

E       Hari Shanker Jain v. Sonia Gandhi 2001 (8) SCC 233 :
    2001 (3) Suppl. SCR 38; Ravinder Singh v. Janmeja Singh
    2000 (8) SCC 191 : 2000 (3) Suppl. SCR 331; Ram Sewak
    v. H.K. Kidwai AIR 1964 SC 1249 : 1964 SCR 235 and
    Bhabhi v. Sheo Govind AIR 1975 SC 2117 - relied on.

F       Hari Ram v. Hira Singh AIR 1984 SC 396 : 1984 (1)
    SCR 932 and Fulena Singh v. Vijoy Kr. Sinha 2009(5) SCC
    290 : 2009 (1) SCR 748 - referred to.

                        Case Law Reference:
G         1984 (1) SCR 932         referred to          Para 11
          2009 (1) SCR 748         referred to          Para 11
          2001 (3) Suppl. SCR 38       relied on        Para 16

H         2000 (3) Suppl. SCR 331      relied on        Para 16
      MARKIO TADO v. TAKAM SORANG & ORS.                       667


     1964 SCR 235                relied on              Para 23       A
     AIR 1975 SC 2117           relied on               Para 23

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1539 of 2012.
                                                                      B
     From the Judgment & Order dated 14.09.2010 of the
Gauhati High Court in Miscellaneous Case No. 5 (AP) of 2010
in Election Petition No. 01 (AP) of 2009.

    V. Giri, Manish Goswami, Mohd. Sadique T.A. (for Map              C
& Co.) for the Appellant.

    Rakesh Dwivedi, Azim H. Laskar, Bikash Kar Gupta,
Abhijit Sengupta for the Respondents.

     The Judgment of the Court was delivered by                       D
     H.L. GOKHALE J. 1. Leave granted.

     2. This appeal is directed against the Judgment and Order
dated 14.9.2010 passed by a Learned Single Judge of Gauhati
High Court in Misc. Case (E.P.) No. 05(AP)/2010 in Election           E
Petition No. 01 (AP)/2009 whereby the High Court has allowed
the Interlocutory application filed by the first respondent herein,
and directed the District Returning Officer, Distt. Papum Pare,
Arunachal Pradesh to produce the record of Register of voters'
counterfoils (in Form 17A) of 38 polling stations of 13-ltanagar      F
(ST) Assembly Constituency in that State.

     Brief facts leading to this appeal are as follows:-

     3. The appellant and the respondent No. 1 herein
contested the election to the Arunachal Pradesh Legislative           G
Assembly from 20-Tali (ST) Assembly Constituency held in
October 2009, wherein the appellant was declared elected,
defeating his nearest rival respondent No. 1, by 2713 votes.
Respondent No. 1 filed Election Petition No. 0112009 to
challenge the election of the appellant on the ground of corrupt      H
    668      SUPREME COURT REPORTS                   [2012] 4 S.C.R.


A practice of booth capturing. This 20-Tali (ST) Assembly
  Constituency consists of two circles viz. (i) Tali, and (ii)
  Pipsorang. Each of the circles was having 10 polling stations.
  The voting had taken place on 13.10.2009. It was alleged that
  on two polling stations viz. (i) 7-Roing and (ii) 2-Ruhi from circle
8 Tali, boxes (containing EVMs) were illegally removed by the
  party workers of the appellant, and votes in favour of the
  appellant were cast by a single hand. The common voters were
  not allowed to exercise their voting rights as they were
  threatened for their lives by the miscreants of the appellant. It
C was claimed that polling agents of the first respondent at these
  two polling stations jointly reported about the happenings in
  these polling stations on 15.10.2009 to the Assistant Returning
  Officer. It was alleged that such incidents also took place on 6
  more polling stations. In para 9 of the petition, it was stated that,
  it was necessary to bring the EVMs and counter foils of Form
D 17A (register of voters) of these 8-polling stations (mentioned
  in para-7 of the petition) for forensic test and other examination
  etc. before the Hon'ble Court for proper adjudication of the case.
  It was stated that the votes received by the appellant in these
  8 polling stations were 3763, and if they were deleted from the
E votes of appellant, the first respondent would be declared as
  elected. It was prayed that the records of (i) register of voters
  counterfoils (Form 17-A) of these 8 polling stations described
  in paragraph 7 of the petition, (ii) EVMs of these 8 polling
  stations, and (iii) records relating to 20 Tali (ST) Assembly
F Constituency be called, and appellant be directed to show
  cause as to why those votes cast by booth capturing in 8 polling
  stations in favour of the appellant should not be declared as
  illegal, and the election order dated 22.10.2009 be not declared
  as void, and why the respondent No. 1 should not be declared
G as elected candidate.

         4. The appellant contested this petition by filing a Written
    Statement. He submitted that no unfair means were employed
    by him, or by his agents, and stated that the allegation of illegal
H   practice adopted in 8 polling stations is completely false. He
      MARKIO TADO v. TAKAM SORANG & ORS.                         669
               [H.L. GOKHALE, J.]
submitted that the election was conducted peacefully with free           A
and fair means. The polling stations were guarded by police
personnel who carried arms and ammunitions. There was no
booth capturing or criminal intimidation at all. EVMs and voters'
counterfoils were duly verified at the Receiving Centre, and
there was no need to call for any of these documents, nor was            B
there any question to declare the election void.

     5. The learned Judge framed the necessary issues on 8th
March, 2010 including as to whether the EVMs were illegally
removed, whether any election offence of booth capturing and
criminal intimidation was committed, whether the election was            C
liable to be declared void under Section 100 of the
Representation of the People Act, 1951 ("Act of 1951" or the
said Act for short) and whether the first respondent was entitled
to be declared as duly elected?
                                                                         D
     6. Before the evidence could start, the first respondent filed
Interlocutory Application No. 6/2010 in the said Election Petition
on 29th March, 2010. In para 1 thereof he submitted as follows:-

            "1. That your applicants beg to state and submit that
     some thousand of voters of those 8 poliing stations viz. (i)        E
     Giba, (ii) Tungmar, (iii) 15-Richik, (iv) 7-Roing, (v) 10-
     Yarda, (vi) 5-Guchi, (vii) 8-Dotte, (viii) 2-Ruhi of 20 Tali (ST)
     Assembly Constituency have double entry in different 38
     polling stations of 13-(ST) Itanagar Assembly
     Constituency. So far your applicant knowledge is                    F
     concerned about 80% of the voters of 20-(ST) Tali
     Assembly Constituency from those 8 polling stations viz.
     (i) 6-Giba, (ii) 4-Tugnmar, (iii) 15-Richik, (iv) 7-Roing, (v)
     10-Yarda, (vi) 5-Guchi, (vii) 8-Dotte, (viii) 2-Ruhi have cast
     their votes at 13-(ST) Itanagar Assembly Constituency and           G
     not at 20-(ST) Tali Constituency."

    Thereafter, he gave the list of 38 polling stations of Itanagar
constituency. He claimed that the total number of such voters
who had their names in those 38 polling stations was 1304. He,           H
    670     SUPREME COURT REPORTS                 [2012] 4 S.C.R.


A therefore, prayed that the record of register of voters
  counterfoils (Form 17-A) of the above 38 polling stations of 13-
  (ST) Itanagar Assembly Constituency from the District Returning
  Officer, Distt. Papum Pare be called.

       7. The appellant opposed this application. The learned
8 Single Judge noted the submissions on behalf of the
  respondent No. 1. He also noted the submissions on behalf of
  the appellant that there was no allegation of double enrollment,
  and no issue had been framed in this respect in the election
  petition, and therefore the application was liable to be
C dismissed. Having noted the submissions, the learned Single
  Judge rejected the said application by his order dated
  31.03.2010 observing "I am of the considered view that calling
  of records as sought for by the applicant is not justified at this
  stage."
D
        8. Thereafter, the evidence was recorded. The first
  respondent went into the witness box on 4th April, 2010 and in
  his examination in chief, he stated that he had sent a fax
  message to the Returning Officer of 20-Tali (ST) Assembly
E Constituency on 15.10.2009 alleging the booth capturing of 2-
  Ruhi and 7-Roing polling stations. He stated that he had
  complained about the booth capturing in 6 more polling stations
  and produced copies of complaints. He stated that there was
  single handed voting in favour of the appellant, and respondent's
F voters were threatened and not allowed to cast their votes. He
  further stated that a large number of voters had double entries
  in the electoral roll of 20 Tali (ST) as well as Itanagar (ST)
  Assembly Constituency. They had actually cast their votes at
  38 different polling stations of 13-(ST) Itanagar Assembly
  Constituency, and in their place votes were cast in Tali
G Constituency by the miscreants of the appellant. The electoral
  rolls of the two constituencies were to be exhibited. He further
  pointed out that a vote was cast against a dead person by
  name Markio Tama from 2-Ruhi polling station and the death
  certificate of the person concerned was produced.
H
      MARKIO TAOO v. TAKAM SORANG & ORS.                      671
               [H.L. GOKHALE, J.]
       9. In his cross examination on 9th June, 2010, the first       A
 respondent accepted that he had not made any averments in
 the election petition regarding double enrollment of the voters
 in the two Assembly Constituencies. He accepted that he was
 aware that the final electoral rolls were published by the
 authorities concerned before the election was held, prior to         B
 which the draft roll was published for information of the voters
 concerned, and that he did not lodge any complaint before the
 authorities concerned about the double enrollment in the two
 constituencies. He explained it by stating that he did not know
 that such double enrollment had taken place. He could not say        c
 who actually cast the vote for Markio Tama, who had already
 expired. He accepted that he had appointed his polling agents
 for all the polling stations. He knew about the duties of the
 polling agents which included raising objection in case of
 detection of any impersonation during the polling time, before
                                                                      0
 the Presiding Officer concerned by filling up a prescribed form
 alongwith a fee of Rs. 2/-. He stated that his polling agents were
 not allowed to enter into the polling booths and the candidates
 appointed by the appellant acted as fake polling agents for the
first respondent. He however, accepted that he has not stated
in election petition that the candidates appointed by the             E
opposite party had acted as fake polling agents for him. He
further accepted that his complaint to the Returning Officer did
not mention all the 8 polling stations. It mentioned only about 2
polling stations. He also accepted that he did not mention the
names of persons involved in· booth capturing. The first              F
respondent had alleged that in two polling stations viz. Ruhi and
Roing, booth capturing had taken place which was on the basis
that in Ruhi the first respondent got only 3 votes as against
appellant getting 697 votes and in Roing he got only one vote
as against the appellant getting 1196 votes. On this aspect it        G
was put to him that there were two circles in this constituency
viz. Tali and Pipsorang. The above two polling stations were in
Tali Circle. The first respondent accepted that the returned
candidate secured no vote in 11-Vovia polling station. He also
accepted that the returned candidate secured only 7 votes in          H
    672       SUPREME COURT REPORTS                [2012] 4 S.C.R.


A   13-Zara polling station, both falling in Pipsorang circle.
    Thereafter, he accepted that

               "It may be correct that securing less vote by a
          candidate may be due to his less attachment to the people
B         of a particular area and it may also be the one of the
          reasons for losing the election."

       The first respondent also accepted that Micro Observers
  were appointed in all the polling stations and they were
  provided with digital camera for their use as and when required
C during election for all the purposes.

       10. It was at that stage that the first respondent moved
  another application viz. Mis Case No. OS(AP) of 2010 on 29th
  June, 2010. In that application he repeated that some of the
D voters of the 8 polling stations mentioned earlier, had double
  entries in different 38 polling stations of 13 Itanagar (ST)
  Assembly Constituency. In para 2 he stated that 30% of voters
  of Tali Constituency from those 8 polling stations had cast their
  votes in Itanagar and not in Tali, and in their place the double
E voting was effected on behalf of the appellant, and therefore it
  was necessary to get the record of the voters' counterfoils (in
  Form 17A) from the 38 polling stations under 13-(ST) Itanagar
  Assembly Constituency. The appellant opposed this
  application. The counsel for the appellant submitted that this
F was a fishing inquiry to improve the case. The learned Single
  Judge however observed:
                "This allegation sounds to be new one, but when it
          is closely examined, it also comes under the purview of
          booth capturing because votes by impersonation is one
G         of the modus operandi adopted towards accomplishment
          of securing votes by use of illegal method or illegal
          resource".
      11. The learned Judge referred to a judgment of this Court
H in Hari Ram Vs. Hira Singh reported in AIR 1984 SC 396, that
      MARKIO TADO v. TAKAM SORANG & ORS.                       673
               [H.L. GOKHALE, J.]
electoral rolls and counter foils should be called sparingly and       A
only when sufficient material is placed before the Court. He also
referred to a judgment of this Court in Fulena Singh Vs. Vijoy
Kr. Sinha reported in 2009(5) SCC 290 wherein it was held
that inspection of register of voters in Form 17-A would be
permissible where a clear case is made out. The learned Single         B
Judge held that the official record would be the most reliable
evidence where there was impersonation, and thereafter
passed the impugned order calling for the record of registers
of voters counterfoils in form 17A of 38 polling stations of 13-
(ST) Itanagar Assembly Constituency which order is challenged          c
in the present appeal.

     Submissions on behalf of the rival parties

      12. Mr. Giri, learned senior counsel appearing for the
 appellant submitted that the learned Judge of the High Court          D
 clearly erred in allowing the second application filed by the first
 respondent for the simple reason that he was making a roving
 and fishing inquiry. Mr. Giri submitted firstly that if the
 respondent No.1 was concerned with the alleged double entries
of the voters in the two constituencies, he ought to have              E
challenged the double enrollment when the draft rolls were
 published. Secondly, this ground of impersonation and double
voting was not raised in the election petition at all. Then there
were no particulars provided as to whether anybody had seen
the real voters not voting, and somebody else voting in their          F
place. Thirdly, he submitted that the application made by
respondent No.1 earlier having been rejected, there could not
be a second application for that very purpose. Besides,
impersonation or double voting would come in the category of
'improper reception of votes' which is a separate category of          G
corrupt practice falling under Section 100 (1) (d) (iii) of the Act
of 1951. For invoking this ground one has to plead that the
election was materially affected by such improper reception of
votes which the first respondent had not done. 'Improper
reception' is different from 'booth capturing' which is a separate
                                                                       H
    674      SUPREME COURT REPORTS                 [2012] 4 S.C.R.


A corrupt practice under Section 123 (8) read with Section 135
  A of the Act of 1951. The first respondent had filed the election
  petition only on the ground of booth capturing and not on the
  basis of improper reception of votes and he cannot be permitted
  to improve upon it from stage to stage. The sanctity and secrecy
B of the electoral process was important and the same could not
  be permitted to be violated.

        13. Mr. Rakesh Dwivedi, learned senior counsel appearing
  for the first respondent on the other hand submitted that the first
C respondent had filed the election petition on the ground of booth
  capturing, and double voting or impersonation could be
  considered as facets of booth capturing. The learned Judge
  could not be faulted for his order since impersonation is a link
  between the booth capturing and improper reception. If purity
  of the election process is to be maintained, and if the true result
D of the election is to be found out, the order which is impugned
  in the petition was a necessary order.

          Consideration of the rival submission

E       14. The order impugned in the present appeal has been
  passed on the second application in this behalf which was Misc.
  Case No. 05(AP)/2010 filed on 29th June, 2010 after the
  recording of the evidence of the first respondent. It is material
  to note that in his evidence the first respondent did not dispute
F that he had not made any averment in the election petition
  regarding double enrollment of some voters of the two
  constituencies. He also accepted that one has to object to such
  double entries when that draft electoral roll is published, but he
  explained his inaction in this behalf by stating that he did not
  know that such double enrollment had taken place. With respect
G to impersonation, he cited the instance of only one person,
  namely Markio Tama who had expired, but he could not state
  as to who voted in his place. He accepted that the polling
  agents have to object when such impersonation takes place,
  but explained inaction of his polling agents by saying that his
H polling agents were not allowed to enter into the polling booths
      MARKIO TADO v. TAKAM SORANG & ORS.                    675
               [H.L. GOKHALE, J.]

 and the candidates appointed by the opposite party acted as A
 fake polling agents for him. He however, accepted that such
 plea was not taken in the election petition. He also accepted
 that his complaint about double voting was only about 2 polling
 stations, and that he did not mention all the 8 polling stations
 in his complaint. He had to accept that he did not mention the B
 names of persons involved in the booth capturing. The first
 respondent had emphasized the fact that in Ruhi he got only 3
 votes as against appellant getting 697 votes. In Roing he got
 only one vote as against appellant getting 1196 votes. He
 further had to accept that there were two circles in Tali c
 constituency, namely, Tali and Pipsorang. Ruhi and Roing were
falling in Tali circle where appellant did get most of the votes.
As against that in Pipsorang circle the respondent No.1 got
 most of the votes. Thus in Vovia polling station, the appellant
got no vote at all and if we see the pleadings we find that the
                                                                    0
first respondent got 365 votes. In Zara polling station, the
appellant got only 7 votes as against 335 votes of the first
respondent. There are two more noteworthy polling stations.
Thus, in Keba polling station the first respondent got 346 votes
as against the appellant's one vote, and in Tedung polling station E
the first respondent got 361 votes as against only 5 votes of
appellant. The first respondent had to accept that the securing
of less votes may be due to the less attachment of the
candidate to the people of a particular area, and may be one
of the reasons to loose the election. He has also accepted that
there were micro observers in all the polling stations with digital F
cameras.

    15. In this Misc. Case No.05(AP)/2010 the first respondent
once again prayed for calling for the voters counterfoils in Form
17-A from 38 polling stations of Itanagar Assembly G
Constituency. In para 2 of this application he now stated that
30% of the voters' of Tali Constituency from 8 polling stations
had cast their votes in Itanagar, and in their place double voting
was effected. Thus, in this second application, the first
respondent's grievance of such double voting came down from H
    676       SUPREME COURT REPORTS                  [2012] 4 S.C.R.


A   80% to 30%. The question is as to whether the learned Judge
    was right in allowing this second application for getting this
    additional record on the background of the material that had
    then come on the record.

B      16. To begin with, one must note that in an election petition,
  one has to plead the material facts at the outset, and the failure
  to plead the same is fatal to the election petition. For reference
  one may see the judgment of a bench of three judges of this
  Court in Hari Shanker Jain Vs. Sonia Gandhi reported in
  [2001 (8) sec 233]. Besides, no evidence can be led on a
C plea which is not raised in the pleadings and no amount of
  evidence can cure the defect in the pleadings as held in para
  7 of Ravinder Singh Vs. Janmeja Singh reported in [2000 (8)
  sec 1911.
D       17. (i) In the present case the election petition filed by the
  first respondent made the grievance of booth capturing which
  is a corrupt practice covered under Section 123 (8) of the Act
  of 1951. Committing a corrupt practice is a ground to declare
  an election void under Section 100 (1) (d) of the Act. Booth
E capturing is also made an offence under Section 135 A of the
  Act, and the term 'booth capturing' is spelt out in the explanation
  to that section.

          (ii) Section 135 A alongwith the Explanation reads as
          follows:
F
                135A. Offence of booth capturing - [(1)] Whoever
          commits an offence of booth capturing shall be punishable
          with imprisonment for a term which [shall not be less than
          one year but which may extend to three years and with fine,
G         and where such offence is committed by a person in the
          service of the Government, he shall be punishable with
          imprisonment for a term which shall not be less than three
          years but which may extend to five years and with fine.

                Explanation - For the purpose of [this sub-section
H
      MARKIO TADO v. TAKAM SORANG & ORS.                       677
               [H.L. GOKHALE, J.]
     and section 20B], "booth capturing" includes, among              A
     other things, all or any of the following activities, namely:-

      (a)   seizure of a polling station or a place fixed Jor the
            poll by any person or persons making polling
            authorities surrender the ballot papers or voting         B
            machines and doing of any other act which affects
            the orderly conduct of elections;

      (b)   taking possession of a polling station or a place
            fixed for the poll by any person or persons and
            allowing only his or their own supporters to exercise     c
            their right to vote and [prevent others from free
            exercise of their right to vote];

      (c)   [coercing or intimidating or threatening directly or
            indirectly] any elector and preventing him from           D
            going to the polling station or a place fixed for the
            poll to cast his vote;

      (d)   seizure of a place for counting of votes by any
            person of persons, making the counting authorities
            surrender the ballot papers or voting machines and        E
            the doing of anything which affects the orderly
            counting of votes;

      (e)   doing by any person in the service of Government,
            of all or any of the aforesaid activities or aiding or    F
            conniving at, any such activity in the furtherance of
            the prospects of the election of a candidate.

    (2) An offence punishable under sub-section (1) shall be
    cognizable.
                                                                      G
     18. As far as impersonation or double voting is concerned,
such actions would amount to improper reception of votes
which is a separate ground for declaring an election to be void
under Section 100 (1) (d) (iii) of the said Act. This ground was
not pleaded in the petition, nor was any issue framed thereon         H
    678     SUPREME COURT REPORTS                  [2012] 4 S.C.R.


A for the trial. As can be seen from the explanation to Section
  135 A, the main element of booth capturing is use of force or
  intimidation. As against that impersonation or double voting
  involves cheating or deception. Thus, these two grounds deal
  with two different aspects of corrupt practices. That being the
B position, the question is as to whether the respondent No.1
  could have been permitted to lead any evidence in this behalf
  without raising the ground in this election petition. This is
  particularly on the background that the earlier application I.A.
  No.6/2010 calling for the register of voters' counterfoils (Form
c 17-A) from the 38 polling stations of Itanagar had not been
  entertained at that stage under the order dated 31.03.201 O
  which was prior to recording of evidence.

          19. The evidence which had come on record clearly
    showed that the first respondent received overwhelming votes
D   in some polling stations, whereas the appellant received
    similarly overwhelming votes in other polling stations. The
    statement of the first respondent that the appellant had
    appointed fake polling agents for the first respondent was a
    clear after thought, since if it was so, he would pleaded the
E   same in the election petition itself. He has not mentioned the
    names of the persons allegedly involved in booth capturing.
    Even with respect to impersonation, the only instance pointed
    out was that of one Markio Tama, but it was not stated in the
    petition or in evidence as to who voted in his place. It is thus
F   obvious that having failed to place any material with respect to
    either booth capturing or impersonation, the first respondent
    was trying to make fishing and roving inquiry to improve his case
    by calling for the record of the voters register from Itanagar
    Constituency, in support of his grievance of double voting. In
G   the absence of any evidence with respect to the persons who
    at the instance of the appellant allegedly captured the booths
    or made double voting or impersonation in Tali Constituency,
    no such inference could have been drawn against the appellant.
    The learned Single Judge, therefore, was clearly in error in
H   allowing the second application made by the first respondent.
     MARKIO TADO v. TAKAM SORANG & ORS.                      679
              [H.L. GOKHALE, J.]
      20. Besides, the ground of improper reception requires a       A
catididate to show as to how the election in so far as it concerns
the returned candidate was materially affected, in view of the
requirement of Section 100 (1) (d) of the Act of 1951. First
respondent has stated that there were some 1304 double
entries of voters. The allegation of respondent No.1 on              B
evidence was only with respect to Roing and Ruhi polling
station. The votes received by the appellant in both these polling
stations put together come to 1873. The appellant has won with
a margin of 2713 votes. That being so the second application
could not have been entertained even on that ground in the           c
absence of prima facie case that the result of the election had
been materially affected.

       21. The learned Judge has referred to and relied upon the
judgments of this Court in Hari Ram Vs. Heera Singh (supra)
and Fulena Singh Vs. Vijoy Kr. Sinha (also supra) to hold that       D
 in a rare case an order of production of such record concerning
the voters register could be passed. Learned Judge however
made no attempt to apply the principles laid down in those
cases to the facts of the present one, as can be seen from the
narration above. In Hari Ram, (which is a decision of three          E
judges) the situation was almost similar. The High Court had
passed an interlocutory order directing the Returning Officer to
produce the marked electoral rolls for inspection, which was on
the background that the first respondent had won that election
by a very small margin of 238 votes. In para 3 of the judgment,      F
this Court accepted the contention on behalf of the appellant
as well founded that the High Court erred in allowing the prayers
at an interlocutory stage without examining whether proper
foundation was laid for inspection which would otherwise result
in adversely affecting the secrecy and sacrosanct nature of          G
electoral process. In para 6 of Hari Ram, this Court observed
as follows:-

    "6. To begin with, the High Court seems to have been
    under the impression that the Court had ample powers to
    direct production of any document Under Section 165 of           H
    680          SUPREME COURT REPORTS                [2012] 4 S.C.R.


A         the Indian Evidence Act. In doing so with due deference,
          the High Court overlooked that the Representation of
          People Act was a special Act and provisions of the
          Evidence Act or the CPC would only apply where they are
          not excluded. Thus, at the very outset, with due respect,
B         the approach of the High Court was legally incorrect.. ..... "

       In Hari Ram also there was a grievance that there were a
  number of dead persons for whom votes were cast. No details
  and particulars were given that votes were actually cast for
  dead persons. This Court held that it was nothing but a fishing
C inquiry and it clearly violated the sanctity and secrecy of the
  electoral process.

       22. (i) Rule 93 of the Conduct of Election Rules, 1961
  governs the production and inspection of election papers. Sub-
D rule 1 thereof is relevant for our purpose and it reads as
  follows:-

      "93. Production and inspection of election papers - (1)
  While in the custody of the district election officer or, as the case
E may be, the returning officer -

           (a)    the packets of unused ballot papers with counterfoils
                  attached thereto;

           (b)    the packets of used ballot papers whether valid,
F                 tendered or rejected;

           (c)    the packets of the counterfoils of used ballot papers;

           (d)     the packets of the marked copy of the electoral roll
                   or, as the case may be, the list maintained under
G                  sub-section (1) or sub-section (2) of section 152;
                   and

           [(dd) the packets containing registers of voters in form
                 17-A;]
H
      MARKIO TADO v. TAKAM SORANG & ORS.                       681
               [H.L. GOKHALE, J.]
      (e)   the packets of the declaration by electors and the        A
            attestation of their signatures;

          shall not be opened and their contents shall not be
     inspected by, or produced before, any person or authority
     except under the order of a competent court."                    B

      (ii) Sub-rule (dd) above has been added in this rule by
notification dated 24.3.1992. Form 17-A mentioned therein is
related to Rule 49 (L) which is concerning the procedure about
tb.e voting by voting machines. Sub-rule 1 (a) of Rule 49 (L)
requires the polling officer to record the electoral roll number      C
of the elector as entered in the marked copy of the electoral
roll in a register of voters which is maintained in Form 17-A.

    23. This rule (as it then stood) came to be construed by a
Constitution Bench of this Court in Ram Sewak Vs. H.K. Kidwai         o
reported in AIR 1964 SC 1249. This Court held in para 7 as
follows:-

           "7. 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       E
     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          F
     which the petitioner relies in support of his case; and

           (ii) the Tribunal is prima facie satisfied that in order
     to decide the dispute and to do complete justice between
     parties inspection of the ballot papers is necessary.
                                                                      G
          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
                                                                      H
    682      SUPREME COURT REPORTS                     [2012] 4 S.C.R.


A         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 more allegation that the petitioner suspects
          or believes that there has been an improper reception,
B         refusal or rejection of votes will not be sufficient to support
          an order for inspection."

        The judgment in Ram Sewak has been followed all through
  out, and the proposition with respect to inspection have been
  repeated in a catena of decisions of this Court, namely that
C inspection of ballot papers and counterfoils should be allowed
  very sparingly, and only when it is absolutely essential to
  determine the issue. As held by this Court in Bhabhi Vs. Sheo
  Govind reported in AIR 1975 SC 2117, discretion conferred
  on the Court should not be exercised in such a way so as to
D enable the applicant to indulge in a roving inquiry with a view
  to fish materials for declaring the election to be void.

       24. The impugned judgment has relied upon the judgment
  of this Court in Fulena Singh (supra). In that matter also there
E was an allegation of double voting, and the inspection of
  register of voters in Form 17-A was sought. In para 13 of the
  judgment the Court noted the submission on behalf of the
  respondent that the registers of voters in Form 17-A do not
  enjoy the same immunity as that of the other papers mentioned
F in clauses (a) to (d) and (e) of Rule 93 (1 ). This Court did not
  accept that submission, and held that inspection of election
  papers mentioned in detail in the entire Rule 93 (1) is not a
  matter of course unless a clear case is made out. The Court,
  therefore, disallowed the inspection of register of voters in Form
G 17-A. Thus, the reliance on Fulena Singh (supra) in the
  impugned judgment was also wholly erroneous

         25. This being the position, in our view the order passed
    by the learned Single Judge is illegal and unsustainable. We
    are, therefore, required to set-aside the same.
H
     MARKIO TADO v. TAKAM SORANG & ORS.                      683
              [H.L. GOKHALE, J.]
    26. Accordingly, we pass the following order:-                  A

     (i)     The appeal is allowed. The judgment and order
             dated 14.09.2010 passed by the learned Single
             Judge of Gauhati High Court in Misc. Case (E.P.)
             No.05(AP)/2010 in Election Petition No.01 (AP)/        B
             2009 is hereby quashed and set-aside.

     (ii)    The Misc. Case (E.P.) No.05(AP)/2010 is hereby
             dismissed.

     (iii)   Parties will bear their own costs.                     o
B.B.B.                                            Appeal aJlowed.