Manphul Singh v. Surinder Singh

Judgment

MANPHUL SINGH SURINDER SINGH November 11. 1974 [H. R. KHANNA AND A. c. GUPTA, JJ.] Represenlat/011 of the People Act, 1951-When a [J(!rty could ask for i1~rpec- 1io11 of cou•t•~oi/s of ballot papers. The respondent in his election petition challenging the election of the appellant alleged that a large number of votes were cast in favour of the appellant by impersonating dead and absentee voters and that in some cases some persons polled their votes twice or more than twice in favour of the returned candidate by registering themselves as \'oters at two or more places in the constituency. The respondent prayed for the production of the counterfoils of the ballot papers to prove the genuineness of the signatures of the voters. Before the High Court the appellant contended that the counterfoils should not be allowed to be produced unless a prlma facie case for inspection was made out.

When the High Court allowed Ule inspection of two counterfolls of ballot papers to confirm the oral evidence of the witnesses that they had impersonated two voters by signing in the counterfoils the appellant came in appeal to this Court and the appeal was dismissed, This Court then pointed out that nothing could be clearer or moro rea• sonable than the procedure suggested by the petitioner and accepted by the High Court. After examining the evidence of the witne~s recorded then the High Court found prima facle that there had been impersonation in about 310 cases and allowed the petitioner to inspect the counterfoils of the ballot papers relat· ing to these voters. On appeal to this Court it was contended that the High Court did not apply its mind to judge the quality of evidence to see ·if there had been a prima facie case. Dismissing the appeal, HEID : (I)

In some cases the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot papers and consider his objec· lions about the imJ?roper acceptance or improper rejection of votes ten?ered ~Y the voters at any given· election but care must be taken to see that election pcti" tioners do not get a chance to rnak.e a roving or fishing ~nquiry in the ballot boxes. The allegations in support of the prayer for inspection must not be vague or lnde· finite; they mllllt be supported by material facts and prayer made must be bona (ide one. [683F·G; 684A] Dr. Jagjit Singls v. Gian/ Kartar Singli, A.I.R. 1966 S.C. 773, Shaslii Bhusha11 v. Prof. Ba/raj Mad/wk and Ors. [1972] 2 S.C.R. 177 followed. ( ;2) On the material before the Court it ~ould not be said that the .High Court acted arbitrarily in taking the view that it has taken.

The High Court classified the various types of impersonation and came to the view that the evidence o( these witnesses, if"unrebutted, would be sufficient to prove the allegation of im· personation. This means that the High Court was satisfied that there was prima facle case and the ma~r required further inve9tigation. [6840-E] CML APPELLATE JURISDICTION : Civil Appeal No. 739 (NCE) of 1974. Auoeal by Special Leave from the Judgment and Order dated tho. 4th February 1974 of the Punjab and Haryana High Court in CM! II Misc. Petn. No. 158-E of 1973 in Election Petn. No. 45 of 1972. R. K. Garg, S. C. Agarwala and S. S. Blutt.nogar, for the appellant MANPHUL v. SURJNDER (Gupta, I.) Bakhtawar Singh Ch. MtJnmohan Singh, D. N. Mishra and /. B. Dadachanji, for ~ respondents . . The Judgment of the Oturt was delivered by . GUPTA, J.-In this appeal by special leave the appellant questions the propriety, of a~ order made by the High Court of Punjab and.

Hary~na at Chandigarh in the course of trial of an election petition .allowmg the petitioner's experts to inspect the counterfoils of the· ballot pape~s of. voters who had been found by the Court "prima facie to have been impersonated". The facts leading to the order under appeal are briefly as follows. In the election held on March 11, 1972 the appellant Shri Manphul: Singh was elected to the Haryana: Vidhan Sabha from the Jhajjar Constituency defeating his only rival, Shri Surinder Singh, the res.- pondent before us, by a m_argin of 265 votes. Shri Surinder Singh. referred to hereinafter as the petitioner, filed an election petition challenging the election of the returned candidate on various allegartions of which the following are material for the present purpose : ( 1 ) 28 votes were cast in favour of the returned candidate by some .persons impersonating voters who · were dead. ( 2)

710 absentee voters were impersonated by persons who polled their votes in favour of the returned candidate. (3) 158 g0vernment servants who were registered as voters in the constituency but were not present in their respective villages and did not cast their votes, were impersonated and their votes were polled in favour of the returned candidate. ( 4) 149 persons, registered as voters at two or more different places in the constituency, polled their votes twice or more than twice in favour of the returned candidate. In ·an application filed on December · 1, 1972 the petitioner suggested a prooedure to enable him to prove his case of impe"onation and ·double voting. IL was stated . th.at he would produco genui.ll.e voters who should be shown the ·counterfoils of tb.e ballot papers tp· test whether the counterfoils Carried their genuine. s.i{nature8 and for this purpose the. petitioner asked for. production of the counterfoils.

This · application was pending when the peti•ioner started examining his witne5ses and the prayer was renewed when one Ranbir Singh, P.W. 17, was in the witness box. The prayer was Opposed on behalf of the returned candidafe but the High Court by its order da1M· January · S, 1973 allowed iilspection of two counterfoils of ballot papers to confirm the oral evidence of the witness that he had. imper_. sonated two voters by signing their names in the couniterfoils . 6 82 It appears that from an earlier interlocutory order passed in this election dispute, the returned candidate had preferred an appeal to this Court which was dismis~. In the Judgment in that case, reiported in AIR 1973 S.C. 2158 (Manphul SU!gh v. Surinder Singh), this Court ol?s~rved at page 2162 of the report referring to the peti- \ioner's aforesaid application dated December 1, 1972 :

"In the application filed in support of the petition fo1r production of records it is pointed out that the evidence is to be led by the production of genui_ne voter and he is to b!:. shown the counterfoil whether it bears his signature or not and then whether he .in fact polled his vote or not or some-· body else had cast his vote. It was specifically stated that the petitioner will pray for inspection of ballot papers when he succeeds in proving that they have not cast their votes: and have been impersonated. Nothing could be clearer or more reasonable tha~ this." Obviously, in this context. "proving" meant proving prima f acie, or there would not have any necessity of examining the c:ounter-foils. On December 17, 1973 ·the High Court allowed the prayer made on behalf of the petitioner to allow two finger-print exper .s named by the petitioner to compare the thumb impressions of some of the witnesses with the thumb impressions on the relevant countelfoils.

On December 18, 1973 the returned candidate made an application, registered as Civil Miscellaneous Application No,. 158-E/73, on which the order under appeal was passed on February 4, 1974. In that application the returned candidate contended that the counterfoils were secret documents and their inspection should not be allowed unless a prima fade case for inspection was made out and thaf the Court's order allowing inspection at that stage when there was no primo facie case amounted to a fishing enquiry not permissible in law; the prayer made in the application was for revoking the permission granted to the finger-print experts cited by the petition(:r to inspect the counterfoils of ballot papers. The application also included several other grievances which the Court found were of subS- tance and the order disposing of the application was to that extent in favour of the petitioner. It is therefore not necessary to refer to these other grievances for the present purpose.

In disposing of the application the High Court also proceeded on the footing that "the person seeking inspection of the counterfoils must pro\le a primal f acie case in support of his !j)Jegation before the counterfoils can be made available to him". In the course of the Judgment the High Court further observed that "the secrecy of the ballot would be allowed to be violated only if a vrima facie case is made out by the petitioner in support of his alle!lation". Having examined the evidence of the witnesses recorded till then, the High Court found prima facie that there had been impersonation in about 310 cases and allowed the petitioner's exoerts to inspect the couriterfoils of the ballot _papers pertaining to tliese 310 voters. The High MANPHUL v. SURINDER (Gupta, J.) 683.

Court tabulated the result of the examination of the evidence of the witn\:Sses 1n seven lists appended to its Order marked with the letters A, B, C ·D, E, F and G List A contains particulars of dead voters who are' alleged to have been impersonated. They are 5 in number. List B includes the particulars of voters examined on oath and found· prima facie to have been impersonated on the basis of their own testi• mony. The number of such voters is 126. List C contains the parti· culars of voters who appear.ed prima f acie to have been impersonated 1Upon the evidence of P.Ws. 17 and 472. They are four in number .. List D sets out the particulars of voters who had appeared as witnesses. for the petitioner but deposed against him, but who were found prima. facie to have been impersonated from the deposition of other wit;.. nesses. Such voters are 1 S in number.

List E contains parti_1:ulars of those witnesses who had been declared hostile to the petitioner but who were found prima facie to have been impersonated from the df'.position of other witnesses. Their number is 13. List F includes particulars of voters not examined as witnesses but who were found prima f acie to have been i,mpersonated from the deposition of other witnesses. The number of such voters is 48, List G contains particulars of multiple voting. This list includes two categories : (a) those who polled twice in the constituency, and (b) those who polled once in the cons-. tituency and again in another constituency. Category (a) contains, 17 and category (b) contains 46 such cases. The legal position as regards inspection of ballot papers or their· . counterfoils now seems to be well established. In nr. fagjit Singh v .. ,Ciani Kartar Singh, (AlR 1966 S.C. 773), this Court observed:

"An application made for the inspection of ballot boxes must give material facts which would enable the Tribunai to consider whether in the interest of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored. . . . . . It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper reiection of votes tendered· by vo!ers at any given election but in considering the _require!11ents of justice, care must be taken to see that election petitioners do not get a chance to make a r~:>Ving .or fishing enquiry in the ballot boxes so as fo justify their claim that the returned . candidate's election is void. We do not propose to lay down any hard and fast rule in this matter; indeed; to attempt to lay down such a rule would be inexpedient and unreasonable."

The J?rinciple ~tated in Dr. J agjit Singh' s case (supra) was reaffirmed by this Court m Sashi Bhusan v. Prof. Balra; Madhok and Ors [1972] 2 S.C.R. 177. It was observed in Sashi Bhusa11's case.: "Facts na turatly differ from case to case. Therefore it 1s • dangerous to lay down any rigid test in the matter of ordering an inspection. It is no doubt true that a Judge while deciding the question of inspection of the ballot paper_s must bear in mind the importanee of the secrecy of the ballot papers. The allegations in support of a prayer for inspect1on must not be vague or indefinite; they must be supported by material facts and prayer made must be a bona fide one. If these condition's are satisfied, the Court will be justified in permitting inspection of ballot papers. Secrecy of ballot is . important; but doing .justiee is undoubtedly more important ......

" 'That in proceeding to consider the evidence, the High Court was :aware of the correct legal position is clear from its Judgment. We have quoted above the observation of this Court in the earlier appeal .arising out of the same election petition that "nothing could be clearer or more reasonable" than. the procedure suggested by the petitioner and accepted by the High Court, Mr. Garg appearing for the appellant made a grievance that the High Court did not apply its mind to judge the quality of the evidence in order to find out whether really there was a prima facie case and depended on the volume" of the evidence adduced in making the impugned order. We do not think .that the criticism is justified. The High Court classified the various .types of 4npersonation alleged into seven categories mentioning all relevant particulars including the names of witnesses on whose evidence the allegation in each ca,tegory was based.

The High Court ·was of the view that the eviden~ of these witnesses, if unrebut!txl, would be sufficif!ll,t to prove. the allegation of impersonation. This means the High Court was satisfied that there was a {ll"ime facie case and the mattc:r required further investigation; on the material before us we cannot say that the High Court acted arbitrarily in taking this view. Mr. Garg also contended that there was no ma•erial to support the allegation of multiple voting. This is what the learned Judge ·of the High Court says on this aspect of the case : "I have been taken through various parts of the electoral roll by learned counsel for the petitioner who contends that each one of such persons is shown to be registered at two places in the constituency or in different constituencies by reason of the fact that his or her description as wdl as the description of his or her family members or some of them giv1m ·in the two places is the same. . . . . .

It is common ground between the. parties that the votes of such voters have been polled at both the places. In respect of tltese 63 persons therefore the petitiOT1er must be held to ·have adduced ,vrima facie evidence in support of his allegatio~s. Their particulars are soecified in List G appended to 1his ordor." ThlS extract from the Judment of the High Court proves that Mr Garg's contention is without substance. For the reasons stated above this appeal fails and is dismissed wifo costs. P.B.R. Appeal dismis.red.