Fulena Singh vs Vijay Kumar Sinha & Ors

been enrolled in more than one place in the said

constituency are mentioned in annexure 4 to the election

petition.

5. The appellant herein filed a detailed written statement

inter alia denying the averments made and allegations

levelled in the election petition.

5

6. In order to prove his case the respondent no. 1 herein

adduced evidence on his behalf and the matter is coming up

for the evidence of the appellant/respondent. It is at this

stage the first respondent herein filed an application under

Rule 93 (1) (dd) of the Rules seeking inspection of the

packets containing registers of voters in Form 17A; in the

said application it is stated that inspection of the registers of

voters in Form 17A is required for the purposes of

substantiating the allegations of double voting by the

relations and supporters of the appellant.

7. The appellant herein in his objection resisting the

prayer for inspection of the registers inter alia submitted

that inspection of the said documents if permitted at this

stage may amount to making a roving enquiry in order to

fish out the materials. Such inspection, if any, can be

permitted only after consideration of evidence of both the

parties.

6

8. The learned trial judge after referring to the pleadings

and decisions of this Court allowed the application and

accordingly permitted the parties to inspect the registers of

voters in Form 17A.

Hence, this appeal.

9. Shri Vikas Singh, learned senior counsel appearing on

behalf of the appellant submitted that the High Court has

committed a serious error in ordering inspection of Registers

of voters in Form 17A, which contains identity of voters and

this inspection at this stage may have a serious bearing on

the trial of the election petition where the appellant is yet to

lead evidence. The learned senior counsel further submitted

that orders permitting inspection of any election paper

mentioned in Rule 93 of the said Rules cannot be granted as

a matter of course unless a cast iron is made out for such

inspection. It was further submitted that secrecy of ballot is

an important consideration that should always weigh with

the Court. Learned senior counsel submitted that the 7

evidence made available by the first respondent is not

sufficient for ordering any such inspection. Lastly, it was

contended that the learned trial judge ordered the

application without recording any reason whatsoever and

therefore the impugned order is liable to be set aside on

that ground alone. Shri Ravi Shankar Prasad, learned senior

counsel relying on the pleadings in the election petition and

as well as the evidence submitted that the

respondent/election petitioner made out a clear case for

ordering inspection of the said registers. Learned senior

counsel also contended that registers of voters in Form 17A

do not enjoy the same immunity as that of other papers

mentioned in (a) to (d) and (e) of Rule 93 of said Rules. It

was further submitted that purity of elections is equally an

important consideration that has to be borne in mind and

the courts are required to balance both the principles

namely secrecy of ballot and the purity of elections. Shri

Prasad made an attempt to contend that no detailed reasons

as such are required to be recorded by the learned trial 8

judge for the purpose of disposal of the interlocutory

application.

We have carefully considered the rival submissions and

perused the material available on record.

10. Rule 93 of the said Rules mandates that election

papers mentioned in the said Rule shall not be opened and

their contents shall not be inspected by, or produced before,

any person or authority except under the orders of a

competent court. It is fairly well-settled and needs no

restatement at our hands that inspection of election papers

mentioned in detail in Rule 93 (a) to (e) is not a matter of

course. Inspection of those papers cannot be ordered and

parties cannot be permitted to inspect the same for the

purposes of making a roving enquiry in order to fish out the

materials and to derive support one's own case. It is

equally well settled that a clear case is required to be made

out for ordering the production and inspection of election

papers by the parties.

9

11. It is true that the election petitioner adduced evidence

on his behalf by examining seven witnesses. The learned

trial judge observed that all the witnesses "have supported

the allegation of double voting at more than one booth by

relations and supporters of respondent no. 1. Some of the

witnesses have specifically given the names of such voters

whose names appear in voter's list at more than one place."

That is all the discussion about the evidence and material

available on record. Learned trial judge did not assign any

reason whatsoever in support of his conclusion permitting

the parties to inspect the registers of voters in Form 17A.

The learned trial judge allowed the application as a matter

of course. We find it very difficult to sustain such laconic

and unreasoned order which may have a serious bearing on

the questions that arise for consideration in the main

election petition which is still awaiting trial and disposal. 10

12. We do not propose to minutely examine the nature of

evidence and express our opinion as to whether any case at

all is made out for permitting the parties to inspect the

packets containing registers of voters in Form 17A; for such

an exercise on our part may cause unintended prejudice to

either of the parties in the main Election Petition which is

still awaiting adjudication. Be it noted the prayer in the

Election Petition is to set aside the election of the appellant

and declare the respondent/election petitioner to have been

duly elected from 172, Lakhisarai Assembly Constituency

after scrutiny, inspection and recounting of ballot papers.

Similar is the prayer in the application disposed of by the

learned trial judge resulting in passing of the impugned

order. The grant or refusal of the prayer in the election

petition to a large extent depends upon the decision as to

whether parties have to be permitted to inspect the

registers in Form 17A. It would be appropriate to decide the

main election petition in order to finally resolve the lis

between the parties.

11

13. For the aforesaid reasons, we set aside the impugned

order and remit the application filed by the first

respondent/election petitioner for the consideration of the

trial court along with the election petition. Interests of

justice requires expeditious disposal of the election petition

since the same is awaiting its adjudication ever since 2006.

The appellant as well as the respondents assure the court

that they shall not make any unreasonable request seeking

postponement of the trial of the election petition. The

appellant herein undertakes to lead his evidence and

complete the same expeditiously.

14. We therefore request the learned trial judge to dispose

of the election petition and as well as the application filed by

the respondent/election petitioner within a period of four

months from today. The learned trial Judge shall dispose of

election petition and as well as application uninfluenced by

any of the observations made in this order since we have 12

not expressed any opinion whatsoever on the merits of the

case.

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

costs.

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

..........................................J. (B. Sudershan Reddy) New Delhi;

February 5, 2009