Rajasthan High Court - Jodhpur
C.P.Joshi vs Kalyan Singh Chouhan & Anr on 25 March, 2010
Author: Prakasth Tatia
Bench: Prakasth Tatia
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IN THE HIGH COURT OF JUDICATAURE FOR RAJASTHAN
AT JODHPUR.
ORDER.
C.P. Joshi vs. Kalyan Singh Chouhan
& anr.
S.B. Election Petition No.1/2009 under
Sections 80,81,100(1)(d)(iii) and 100(1)(d)(iv) of
the Representation of People Act, 1951.
Date of Order: March 25th ,2010.
PRESENT
HON'BLE MR. PRAKASTH TATIA,J.
REPORTABLE
Mr. M.S. Singhvi, Arun Bhansali & Mr. R.K. Purohit for the
petitioner.
Mr.L.R. Mehta, Mr. Vijay Bishnoi & Mr. Ramit Mehta, for
respondent no.1.
.....
The election petition was posted on 16.2.2010 for obtaining admission, denial for documents submitted by the parties and for framing of the issues and the respondent submitted this application a day before on 15.2.2010 raising objections that the sealed packet containing marked copy of the Electoral Roll, the Register of Voters in Form No.17A 2 and the list of Tendered Votes in Form No.17B, should not be opened and be allowed to be inspected even for framing of the issues. Consequence of which will be the Court may not obtain admission denial for the documents referred above before framing issues.
The contention of the respondent is that this Court vide order dated 19.11.2009 allowed the application of the petitioner for summoning of the documents and has summoned the documents mentioned at S.Nos. 4 to 35 and 45 from the District Election Officer, Rajsamand. Against this order dated 19.11.2009, Special Leave to Appeal(Civil) No.33725/09 was preferred before Hon'ble the Supreme Court. Said Special Leave to Appeal was disposed of by the Hon'ble Supreme Court on 16.12.2009 with liberty to petitioner to raise objections referred in the order at relevant time.
According to the learned counsel for the respondent, in view of the above order of the Hon'ble Supreme Court, unless the petitioner prima facie proves allegations contained in para no.12 to 19 of the election petition, the sealed packet containing the marked copy of the Electoral Rolls, the Registers of Votes in Form No.17A and the list of Tendered Votes in Form No.17B should not be opened and be allowed to be inspected even for framing of the issues in the election petition.
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The learned counsel for the respondent vehemently submitted that the documents referred above are secret and in view of Rule 93(1)(a) to (e), the opening of the documents will violate the secrecy of the election process which is not permissible. The learned counsel for the respondent relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Fulena Singh v. Vijay Kumar Sinha and others ((2009) 5 SCC 290), wherein it has been held that before production and inspection of the election papers, a clear case is required to be made out for ordering the production and inspection of the election papers. In that case, the inspection of the election papers, i.e. the Register in Form No.17A allowed by the High Court was set aside by the Hon'ble Supreme Court.
The learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Smt. Rekha Rana v. Jaipal Sharma & ors.(AIR 2009 SC 2946) and submitted that opening the documents for the purpose of obtaining the admission, denial of the respondent, will not violate any secrecy of ballot, nor there is any restriction against opening of these documents, if the Court passes the order. It is also submitted that the documents referred above, as such, are not the secret documents, as from those documents, no one can know who had cast vote in favour of whom. Further, Section 94 of 4 the Representative of People Act, 1951, has not made these documents secret documents but put a restriction against opening of documents otherwise than by the order of the Court so that the election papers may not be opened and used by any authority for any purpose.
I considered the submissions of the learned counsel for the parties and the judgments referred above.
It will be appropriate to first recapitulate that the election petitioner submitted application IA No.14745/09 for summoning of various documents and articles before issues be framed in the election petition. In reply to that application, the respondent specifically took the plea in para no.6 of the reply that "... It is for the petitioner to prove the allegations which he has chosen to base his election petition, he cannot be permitted to have a roving and fishing enquiry into the records pertaining to election; whose inspection and production is prohibited by statutory rules in the interests of maintaining and preserving the secrecy of votes." Then took the plea in para no.7 that "... The petitioner is not entitled to summon the documents mentioned in S.No.4,5,12,13,20,21,34,35,36,37 and 45 by invoking Rule 12 of the Election Petition Rules or under any provision of law. Petitioner's application under reply is clearly violative of the statutory provisions, which prohibit inspection and production of the documents for maintaining 5 secrecy of voting which is fundamental to democracy."
In para no.11 of the above reply, the respondent took the plea that " since the petitioner has so far not cared to exhibit his readiness to produce any evidence for even showing that the allegations on which he has based his election petition are capable of being substantiated, he cannot be permitted to have a roving and fishing enquiry into election records and violate the secrecy of voting." The in para no.13 of the said reply the respondent again took a plea that ".... inasmuch as the petitioner has not established any prima facie case in regard to his allegation about voting by impersonation. Thus the petitioner's petition under reply also deserves to be dismissed in regard to the documents mentioned in S.Nos.20 to 27." The same plea was taken of not having any prima facie case established by the petitioner for production of the documents at S.No. 34,35 and 45 etc. in para no.15 of the reply.
From the above, as plea taken in para no.18, it is clear that the respondent's objection even at the time of summoning of the document was that the documents/articles cannot be summoned in the court because there is no iota of evidence to substantiate any allegation made in the election petition even of prima facie nature. Therefore, these documents/articles cannot be 6 summoned and very specifically it was pleaded that the documents cannot be summoned as it will lead to roving and fishing enquiry from the election material and, more importantly, it will violate the secrecy of the election process/votes and this Court vide order dated 19.11.2009 held as under:-
".... the documents referred at S.No. 4 to 33 and if these documents are not produced at this stage and will be summoned after some evidence of the petitioner, then that will cause only delay, therefore, these documents can be summoned at this stage, rather say, required to be summoned at this stage and after obtaining admission and denial on these documents from the respondents, the proper issues may be framed and unnecessary evidence can be excluded. The video CDs referred at S.Nos. 34 and 35 are also not the secrete articles and they are also relevant which will also be required before evidence of the petitioner starts. The Electronic Voting Machines, referred at S.Nos.36 to 43 of the list as well as the tendered ballet papers referred at S.No.44 cannot be summoned at this stage without recording any prima facie satisfaction of the court for ordering summoning of these documents. However, the record relating to the inclusion of the name of Kalpana Kunwar/Kalpana Singh in the electoral roll pertaining to Polling Station NO.86 (Numbered 39 in the election held on 4.12.2008) as also Polling Station NO.83 (Numbered 40 in the election held on 4.12.2008) of Nathdwara 7 Legislative Assembly Constituency is also required to be summoned, as these documents are also relevant in view of the allegations made in the election petition and by summoning them, the proper issues can be framed and unnecessary evidence may be excluded."
Summoning of these documents, at this stage, will help the Court in framing the proper issues and will help in placing the burden of issue properly upon the party and ultimately may avoid unnecessary evidence."
From the order dated 19.11.2010 it is clear that the documents were summoned after considering whether it will be the right stage for summoning the documents and after considering that whether these documents are secret documents or not and the documents were summoned for the purpose of obtaining admission, denial of the respondent as documents were summoned by the petitioner and, therefore, that is required to be done before framing of the issues. It was felt necessary that the admission, denial be obtained so that for proving issues, proper burden can be put upon the party and this Court also observed that it will avoid unnecessary evidence and will facilitate early decision on the election petition. It is clear from the above order dated 19.11.2009 that this Court clearly held that the documents/articles are required to be produced at this stage and before evidence of petitioner and these 8 documents summoned by the Court are not secret documents/articles. Inspite of above clear decision by this Court, on the issue raised by the respondent, the petitioner with the help of the observations made by the Hon'ble Supreme Court in Special Leave Petition preferred against the order dated 19.11.2009, raised same objections. The order passed by the Hon'ble Supreme Court is as under:-
"Heard both sides.
The respondent-Election Petitioner filed an application to summon certain documents, mostly relating to the conduct of election. The petition was opposed by the petitioner herein alleging that these documents are irrelevant and inadmissible in law and it was also submitted that the election petitioner has not raised any of the grounds warranting summoning of these documents.
We make it clear that the petitioner would be at liberty to raise these grounds/relevancy or admissibility of these documents when these documents are sought to be used by the respondent herein in the proceedings. It was also pointed out that these documents, some are confidential in nature and they may expose the secrecy of the election. The Returning Officer is directed to produce the documents in a sealed cover, only after hearing the parties, and if necessary, open the sealed cover having due regard to the sanctity of the secrecy of ballot.
The petitioner herein would be at liberty to 9 raise all objections regarding admissibility and relevancy of the documents at the time of the hearing.
The special leave petition is disposed of accordingly." (emphasis supplied) It is clear from the order of the Hon'ble Supreme Court dated 16.12.2009 quoted above that the contention of the respondent before the Hon'ble Supreme Court was that the documents summoned are irrelevant and inadmissible in law for which Hon'ble the Supreme Court observed that the respondent will be at liberty to raise all objections regarding admissibility and relevancy of the documents at the time of hearing. Such objections are not at present. Another plea taken by the respondent before the Hon'ble Supreme Court was that some of the documents are confidential in nature and they may expose the secrecy of the election. For this, Hon'ble Supreme Court observed that the Returning Officer shall produce the documents in sealed cover only and only after hearing the parties and if necessary, the documents will be opened having due regard to the sanctity of the secrecy of ballot.
So far as the tendered ballot and the voting machines wherein votes have been recorded are concerned, they are certainly secret documents/articles and neither the petitioner has requested for opening of tendered ballots or for decoding of the voting machine. At this place it will be 10 relevant to mention here that what has been made secret in the process of election is given under Section 94 of the Representation of People Act, 1950.
The Section 94 in the Representation of the People Act, 1950, is as under:-
"94. Secrecy of voting not to be infringed.- No witness or other person shall be required to state for whom he has voted at an election."
This provision protects the voter or other person from disclosing in whose favour he has voted as it is secret information.
Hon'ble the Supreme Court in the case of Smt. Rekha Rana v. Jaipal Sharma & ors. (AIR 2009 SC 2946), after considering earlier decisions of the Supreme Court, observed that:-
"the underlying object of the provision is to assure a voter that he would not be compelled, directly or indirectly, by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and is free from any apprehension of its disclosure against his will from his own lips. The Section confers a privilege on the voter to protect him both in the Court when he is styled as a witness and outside the Court when he may be questioned bout how he 11 voted. This precisely is the principle of "secrecy of ballot."
Then Hon'ble the Supreme Court observed that -"The "secrecy of ballot" has always been the hallmark of the concept of free and fair election, so very essential in the democratic principles adopted by our polity. It undoubtedly is an indispensable adjunct of free and fair election." In the same judgment, Hon'ble the Supreme Court considered the case of S.Raghbir Singh Gill v. S. Gurcharan Singh (AIR 1980 SC 1362) wherein it has been observed that "Out of the two competing principles, the "purity of election", principle must have its way and that the "rule of secrecy", as contemplated in Section 94 of the Act, cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process."
The petitioner is not seeking any information relating to any person, who had voted and to know to whom he voted nor asked for the decoding of the Electronic Voting Machine and, therefore, Section 94 cannot be involved to prevent the Court from opening the documents summoned. At this stage, it will be more relevant to emphasis that what has been made secret is that no one should be compelled to state for whom he has voted at an election and it has not been made secret by Section 94 or by any other provision of law under the Act of 1951 that whether one has voted or 12 not. The petitioner is also not seeking inspection of the documents to know who has voted for whom but the petitioner gave names of the persons, for whom it has been alleged that some other persons have voted. In the facts of this case, the petitioner is not seeking opening of documents to know whether any voter has voted or not or if voted then for whom he has voted. In fact the documents are required to be opened for obtaining admission, denial of the respondent for the purpose of framing issues in proper form to place the burden upon the appropriate party.
Inspite of having a specific provision for maintaining the secrecy of ballot in the Act of 1951 under Section 94, Rule 93 in the Conduct of Elections Rules, 1961 has been framed in different language. By Rule 93, only it has been provided that the papers and articles referred in sub-clause
(a) to (e) 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. Rule 93 of Rule of 1961 itself nowhere provides that the documents/articles mentioned in sub-clauses (a) to (e) of sub-rule (1) of Rule 93 shall be secret documents/articles and in contrast to Section 94 of the Act of 1951, those materials can be inspected and produced before any person or authority, but only upon the order of the competent court. This provision has been made inspite of the fact that 13 as per Section 93 of the Act of 1951, no witness or any other person is require to state for whom he has voted and as per sub-clause (b) and (c) of sub-rule (1) of rule 93, even packets of used ballot papers whether valid, tendered or rejected, as well as the packets of counterfoils of used ballot papers, are permitted to be inspected or produced before not only the court, hearing the election petition, but before any person or authority if the Court passes the order for such inspection or production of those documents or articles before any person or authority. The respondent failed to demonstrate and show with the help of any provision of law under the Representation of People Act, 1951 or the Election Rules, 1961 that the documents or articles by which the secrecy of vote by voter is not disclosed and cannot be made known, yet they cannot be opened in the Court if needed to frame proper issues which are required to be framed after obtaining admission, denial on such documents and for that purpose the Court has passed an order.
This Court by order dated 19.11.2009 summoned the documents/articles mentioned at S.No.4 to 35 and 45 in the application submitted by the petitioner, which are as under:-
"1. Nomination Papers presented by Shri Kalyan Singh Chouhan along with affidavit.14
"4. Electoral Roll relating to Polling station No.39
5. Electoral Roll relating to Polling station No. 40.
6. Electoral Roll relating to Polling station No.27
7. Electoral Roll relating to Polling station No.61
8. Electoral Roll relating to Polling station No.73 9. Electoral Roll relating to Polling station No. 117.
10. Electoral Roll relating to Polling station No. 180
11. Electoral Roll relating to Polling station No.199
12. Marked copy of electoral roll relating to Polling station NO.39
13. Marked copy of electoral roll relating to Polling station NO.40
14. Marked copy of electoral roll relating to Polling station NO.27
15. Marked copy of electoral roll relating to Polling station NO.61
16. Marked copy of electoral roll relating to Polling station NO.73
17. Marked copy of electoral roll relating to Polling station NO.117
18. Marked copy of electoral roll relating to Polling station NO.180
19. Marked copy of electoral roll relating to Polling station NO.199
20. Register of Voters in Form NO.17A relating to Polling Station No.39 15
21. Register of Voters in Form NO.17A relating to Polling Station No.40
22. Register of Voters in Form NO.17A relating to Polling Station No.27
23. Register of Voters in Form NO.17A relating to Polling Station No.61
24. Register of Voters in Form NO.17A relating to Polling Station No.73
25. Register of Voters in Form NO.17A relating to Polling Station No.117
26. Register of Voters in Form NO.17A relating to Polling Station No.180
27. Register of Voters in Form NO.17A relating to Polling Station No.199
28. List of Tendered Votes in Form No.17B relating to Polling station No.27
29. List of Tendered Votes in Form No.17B relating to Polling station No.61
30. List of Tendered Votes in Form No.17B relating to Polling station No.73
31. List of Tendered Votes in Form No.17B relating to Polling station No.117
32. List of Tendered Votes in Form No.17B relating to Polling station No.180
33. List of Tendered Votes in Form No.17B relating to Polling station No.199
34. Video CDs containing the videography of polling Process relating to Polling station No.39
35. Video CDs containing the videography of polling Process relating to Polling station No.40
45. Record relating to inclusion of the name of Smt. Kalpana Kunwar/Kalpana Singh wife of 16 respondent Kalyan Singh Chouhan in the electoral roll pertaining to Polling Station No.86 (Numbered 39 in the election held on 4.12.2008) as also Polling Station No.83 (Numbered 40 in the election held on 4.12.2008) of Nathdwara Legislative Assembly Constituency."
The documents at S.No.4 to 19 are the marked copies of electoral roll relating to specific Polling Station, number of which have been given and the election petitioner is not seeking any roving enquiry from these electoral roll to find out how many persons have voted or not voted but is seeking to use specific entry in relation to specific person to prove that specific persons have voted and specific persons have cast tendered votes. It is not a case of touching the secrecy of election and will disclose that who has voted for whom.
The documents summoned, referred at S.No.20 to 27, are the Registers of votes in Form 17A relating to specific Polling Station, number of which have been given by the petitioners. The Register of votes is maintained as required under Rule 49L of the Rules of 1961. In the Form 17A, before permitting an elector to vote, the Polling Officer (a) records the electoral roll number of the elector as entered in the marked copy of the electoral roll in a register of voters in Form 17A, (b) obtain the signature or the thumb impression of the elector on the said register of voters; and 17
(c) mark the name of the elector in the marked copy of the electoral roll to indicate that he has been allowed to vote. Therefore, the information recorded in Form 17A itself cannot disclose that which voter has voted for whom. It only records the the elector who was allowed to vote at the Polling Station. It contains the signatures/thumb impression of that elector, which also only can prove that that person has voted. Therefore, the documents referred at S.No.20 to 27 also have no secrecy attached to it in the light of the provisions made in the Act of 1951 and the Rules of 1961.
The documents referred at S.No.28 to 33 are list of tendered votes in Form 17B relating to specific Polling Station. Form 17B is prescribed in the Rules of 1961 and are required to be maintained under Rule 49E of the Rules of 1961. In this Form 17B, the Presiding Officer is to enter the serial number, name of the elector, serial number of the elector in the electoral roll, serial number in the Register of voters( Form 17A of the person who has already voted in place of elector) and the Presiding Officer is required to obtain the signature or thumb impression of such elector who has been given tendered vote, as provided under Section 49P of the Rules of 1961. For the purpose of examining its value with reference to any secrecy attached to it, the Form 17B is similar to Form 17A, as it itself also does not disclose nor can disclose that for whom voter has 18 voted.
At this juncture, it will be further relevant that the petitioner in the election petition has specifically referred the names of the electors, who according to the petitioners, have submitted the tendered votes and the petitioner do not want to have a roving or fishing enquiry from the bundle/registers of Form 17A and 17B to know that who gave tendered vote. Therefore, these documents can be opened for the purpose of obtaining admission, denial of the respondent.
In the case of of Fulela Singh (supra), Hon'ble the Supreme Court held that inspection of election papers mentioned in Rule 93(1)(a) to (e) is not available as a matter of course and inspection is not to be ordered to find out material to derive support for one's own case and a clear case is required to be made out for ordering the production and inspection of election papers. In above case, the facts were that the election petition sought declaration that the respondent's election 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 1. In this regard, it is curious to indicate that there are 250 persons of the family of Respondent 1, including the gotias(agnates) and co- 19 villagers who were supporters of Respondent 1 and enrolled in more than two places in the voter's 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 Respondent 1 and if such void votes are deleted by simple arithmetical calculations, Respondent 1 has secured less number of votes than the petitioner and therefore on this ground alone the election of Respondent 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 1 by securing the majority votes than Respondent 1. In the election petition, the election petitioner produced evidence on his behalf and when the matter came up for evidence of respondent before the Hon'ble Supreme Court, then an application was filed under Rule 93(1)(dd) of the Rules seeking inspection of "the packets containing registers of voters in Form 17A". The Hon'ble Supreme Court noticed that in the said application, it was stated that inspection of the register of voters in Form 17A is required for the purpose of substantiating the allegations of double voting by the relation and the supporters of the appellant. After noticing the facts of the case, the Hon'ble Supreme Court held that the documents referred in Rule 93(1)(a) to (e) cannot be inspected for making a roving enquiry in order to find out the material and to derive support for one's own 20 case. As already observed, such is not the case here and the petitioner wants to prove a specific entry for a specific person and is not intended to find out whether that specific person has voted or not. Not only this, in the case of Fulena Singh (supra) it has been held that the grant or refusal of production in the election petition to large extent depends upon the decision as to whether parties have to be permitted to inspect the register in Form 17A. The Hon'ble Supreme Court, even after setting aside the order, directed the trial court to dispose of the election petition as well as the application, uninfluenced by any of the observations made in the order passed by the Supreme Court by specifically mentioning in para 18 that the Supreme Court do not propose to minutely examine the nature of evidence and express 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. Therefore, the said judgment has no application to the facts of the case.
In view of the above, it is held that the documents summoned are required to be opened for the purpose of obtaining admission, denial before framing of the issues in the election petition and it do not violate the secrecy and admission denial over the documents are required to be obtained before issues are framed and before evidence in the election petition may start.
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For the reasons mentioned above, the application is dismissed and the objections raised by the respondent in the application are rejected and the matter may be listed for admission, denial and for framing issues on 6.4.2010 at 2.00 p.m. ( PRAKASH TATIA),J.
mlt.