MC 2773/2008 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI O R D E R 1. Election petition No.1/2008 (GAU) has been filed by the applicant seekin g a declaration that the election of the returned candidate i.e. the Respondent No.1, to the Manipur Legislative Assembly from the No.6 - Keirao Assembly Consti tuency is void. The said election was held on 14.2.2007 and a re-poll was held i n respect of Polling Station No.6/5 of the Constituency on 16.2.2007. The result of the election was declared on 27.2.2007. The applicant/ election petitioner s ecured 7646 numbers of valid votes whereas the returned candidate secured a tota l of 7648 numbers of such votes. The difference/margin between the two candidate s, therefore, was to the extent of two votes. 2. According to the election petitioner, the result of the said election ha s been materially affected by reception of void votes in favour of the returned candidate, details of which have been set out in the election petition. Briefly put, according to the election petitioner, two persons, namely, Juber alias Jube r Ali whose name appeared against Serial No.428 of the Electoral Roll of Poling Station No.6/5 and Abdul Waris whose name had appeared against Serial No.601 of the said Electoral Roll were lodged in the Central Jail Sajiwa on both dates of the poll i.e. 14.2.2007 and 16.2.2007. According to the petitioner, votes have b een cast in their names by impersonation. Furthermore, according to the election petitioner, names of 9 persons who had died long before the election held on 14 .2.2007 and 16.2.2007 were recorded in the Electoral Roll of Polling Station No. 6/5. However, votes were cast in favour of the returned candidate against the na mes of the aforesaid nine deceased persons in Polling Station No.6/5. The names and other particulars of the aforesaid nine persons have been set out in a separ ate schedule to the Election Petition which particulars may be usefully reproduc ed herein below : Sl. No. Name, Father’s name and address Serial No. in the Electoral Roll of 6/5 Polling Station House No. 1. Hajira Bibi, aged about 50 years, W/o Rami of Kiyamgei Muslim village 21 5 2. Md. Ashlam Khan, aged about 55 yrs. S/o Md. Khomei of Kiyamgei Muslim Vi llage. 890 158 3. Sophia Bibi @ Chaoba, aged about 20 yrs. D/o (L) Abdul Latif of Kiyamgei Muslim Village. 606 98 4. Mustafa, aged about 22 yrs. S/o Nazimuddin of Kiyamgei Muslim Village. 516 84-A 5. Manira Bibi, aged about 80 yrs, W/o (L) Nazir Ali of of Kiyamgei Muslim Village. 204 35 6. Ayajuddin, aged about 50 yrs. S/o (L) Tame of of Kiyamgei Muslim Village . 503 83 7. Abdul Haque, aged about 38 yrs. S/O (L) Nizamuddin of of Kiyamgei Muslim Village. 424 70 8. Ashad Tulla, aged about 58 years S/o (L) Zinnatulla of of Kiyamgei Musli m Village. 903 160 9. Abdul Satar, aged about 65 yrs., S/o (L) Hedulla of of Kiyamgei Muslim V illage. 654 111 Furthermore, according to the election petitioner, the names of four voters had appeared twice in the Electoral Roll of Polling Station No.6/5. Votes were cast against in favour of the returned candidate against both the entries of the said voters. The particulars of the aforesaid four voters whose names were recorded twice in the Electoral Roll of Polling Station No.6/5 which have been included i n a separate schedule may be extracted below : Sl. No. Name, Father/husband name and Address Serial No. in the Electoral Roll House No. 1. (a) Memcha Bibi, D/o Jalil. (b) Memcha Bibi W/o Nizamuddin. 192 80 30 15 2. (a) Mazida, d/o Ujeb Ali, (b) Mazida Bibi w/o Wahidur. 976 1014 173 182 3. (a) Rashida, d/o (L) Amu, (b) Rashida Bibi w/o Rahaman. 252 296 39 48(A) 4. (a) Salima @ Samila, d/o Khalilu (b) Samila, w/o Muhibur 860 1027 150 187 Similarly, according to the election petitioner, the names of two voters, the na mes and particulars of whom have been set out in a separate schedule to the elec tion petition, were entered in Polling Station No.6/5 and again in Polling Stati on No.;6/6 and 6/13 of the Constituency. According to the petitioner, votes wer e cast in favour of the returned candidate in respect of the aforesaid doubles e ntries of names in the Electoral Rolls of the respective Polling Stations. In the election petition filed, the petitioner has also contended that insofar a s Polling Station No.6/24 is concerned, five votes had been secured by another c andidate i.e. Sri H. Bidur Singh and only one vote was secured by the returned c andidate. However, in the final result sheet the position was reversed and the r eturned candidate was shown to have secured five votes and the other candidate i .e. H. Bidur Singh to had secured only one vote. On the said basis the election of the returned candidate is also contended to be void. On the basis of the aforesaid pleadings the petitioner has prayed for a declarat ion that the election of the returned candidate is void on account of improper r eception of void votes which had materially affected the result of the election. 3. Written statement having been filed by the returned candidate, appropria te issues were framed by the Court on 9.4.2008 and recording of evidence was fix ed on 21.7.2008. On 18.7.2008 the election petitioner filed an application (Misc . Case No.2103/2008) praying for summoning the official marked copy of the Elect oral Roll of Polling Station No.6/5 and Register of Voters in Form - 17A in resp ect of re-poll held on 16.2.2007 in the aforesaid Polling Station from the Deput y Commissioner cum District Electoral Officer, Imphal East District. The miscell aneous application came up for consideration before the Court on 21.7.2008 i.e. the date fixed for recording of evidence in the case. On the said date while iss uing notice in the Misc. Case, with the consent of the parties recording of evid ence of the election petitioner commenced. The evidence in chief of 14 witnesses were placed before the Court in the form of affidavits and the said witnesses w ere cross-examined on two different dates i.e. 21.7.2008 and 31.7.2008. Thereaft er, the case was fixed on 26.8.2008 for further evidence of the petitioner. On t he said date i.e. 26.8.2008 the petitioner examined PW 15 (T. Ibohal Singh). The reafter, the case was fixed on 28.8.2008. On the said date orders were passed in Misc. Case No.2103/2008 that the prayers made in the Misc. Case will be conside red after closure of evidence of the petitioner. On the same date i.e. 28.8.2008 another order was passed in Misc. Case No.2102/2008 filed by the petitioner for summoning Sri Ng. Dayamoni Singh, the Presiding Officer, who had conducted the re-poll in Polling Station No.6/5 on 16.2.2007. By the said order the Court allo wed the prayer made by the election petitioner for summoning the Presiding Offic er. In the meantime, Misc. Case No.2103/2008 came up before the Court on 9.9.200 8 and as the evidence of the petitioner was closed, subject to the orders passed by the Court in Misc. Case No.2102/2008, the Court proceeded to consider the pr ayer made in the said Misc. Case i.e. M.C. 2103/2008 i.e. for production of the official marked copy of the Electoral Roll of Polling Station No.6/5 and Registe r of Voters in Form - 17A in respect of re-poll held on 16.2.2007 in the aforesa id Polling Station. It may be noticed, at this stage, that the prayer made in Mi sc. Case No.2103/2008 was opposed by the returned candidate who had filed his wr itten objections in the Misc. Case. While the matter was so situated, another Misc. Case i.e. M.C. 2773/2008 was filed by the election petitioner for issuing summons to the Deputy Commissioner-cum-District Electoral Officer, Imphal East D istrict, for production of the Electronic Voting Machines (EVMs) used in Polling Station No.6/24 on the date of the poll i.e. 14.2.2007. The tenability of the p rayers made in the aforesaid two Misc. Cases i.e. M.C.Nos.2103/2008 and M.C. 277 3/2008 is the subject matter of the present order. 4. In view of the almost settled position in law that Court orders for prod uction of marked copy of electoral rolls, register of voters and the electronic voting machines should not be passed for the mere asking and such orders can fol low only on requisite satisfaction being reached by the Court, on the materials available, that such a course of action is absolutely necessary, it will be obli gatory on the part of the Court to notice, even though briefly, the materials br ought on record by the election petitioner in support of the prayers made in the Misc. Case. 5. The pleadings of the election petitioner as contained in the election pe tition have already been noticed in a previous part of this order. The election petitioner has set out the material particulars of the persons who were in Jail custody on the date of re-poll in Polling Station No.6/5 i.e. 16.2.2007; of the nine persons who were dead before the date of the poll and re-poll as well as th e six persons whose names had appeared twice in the same electoral roll or in tw o different electoral rolls. The petitioner has alleged that votes were cast in the names of the aforesaid persons. In addition, the petitioner has also pleaded that the votes secured by another candidate i.e. Sri H. Bidur Singh in Polling Station No.6/24 (5 votes) have been shown in the tally of the returned candidate . The petitioner has also led evidence in support of his pleaded case. The elect oral roll of Polling Station Nos.6/5, 6/6 and 6/13 have been exhibited as Exts. P(1), P(2) and P(3) to show that the names of the two persons in Jail as well a s the nine persons, who according to the petitioner, were dead before the poll a s also the six persons against whose names votes were cast twice had appeared in the electoral rolls of the respective Polling Stations. The death certificate i ssued by the Registrar, Regional Institute of Medical Science, Imphal, certifyin g the death of one of the voters i.e. Hajira Bibi on 10th of December 2005 as we ll as the Death Register maintained in the office of the Registrar, RIMS, have b een exhibited by the petitioner as Exts- P(4) and P(5). Oral evidence has been l ed by the petitioner to prove that the other persons claimed by him to have died before the election had actually so died. Another death certificate issued by t he Registrar of Births and Deaths showing that Md. Aslam Khan had died on 14.2.2 006 has also been exhibited by the petitioner as Ext-P(9) along with the xtract from the Register [Ext-P(10)]. Documents i.e. Exts-P(6), P(7) and P(8) have been exhibited by the petitioner to show that the two persons i.e. Juber Ali and Abd ul Waris against whose names votes were allegedly cast were on the date of the r e-poll i.e. 16.2.2007 in Jail custody. Such documents are in the form of certifi cates and certified copies of Registers etc. of the Jail authorities. Insofar as the issue with regard to casting of votes against the aforesaid persons who wer e in Jail custody; dead or whose names had appeared twice in the electoral rolls is concerned, the petitioner had examined himself and several other witnesses w ho had, however, stated that the information that votes were cast in the names o f such persons had been conveyed to them by the workers and agents of the electi on petitioner. No such workers and agents have, however, been examined by the pe titioner. Insofar as the result of the counting in Polling Station No.6/24 as sh own in the final result sheet is concerned, the petitioner in addition to himsel f had examined his counting agent as PW 7 and the counting agent of Sri H. Bidur Singh as PW 12. 6. Learned counsel for the applicant/election petitioner has submitted that insofar as the prayer for summoning the marked copy of the electoral rolls and Register of Voters of Polling Station No.6/5 is concerned, he would rely on the materials on record in respect of the issues pertaining to casting of votes agai nst the names of the two persons who were in Jail on the date of the poll as wel l as against the names of nine persons who were dead before the election. Learne d counsel has been categorical in his submission that the issue with regard to t he votes being cast in the names of the electors appearing twice in the electora l rolls is not being pressed in support of the said relief sought. Learned couns el has further submitted that on the materials on record a strong prima facie ca se has been made out for calling the marked copy of the electoral roll and Regis ter of Voters of Polling Station No.6/5 as also for summoning the Electronic Vot ing Machines of Polling Station No.6/24. Learned counsel has elaborately taken t he Court through the evidence and other materials on record and has urged that t he petitioner could not examine his polling agent of the concerned polling stati on i.e. Polling Station No.6/5 as the said person is no more. It is in these cir cumstances that the petitioner, according to the learned counsel, after establis hing that the persons concerned were in Jail custody and/or were dead, as may be , could lead no further direct evidence to show that votes were cast against the names of the aforesaid persons. The marked copy of the electoral rolls of the P olling agent in these circumstances is also not available. However, the learned counsel has sought to overcome the aforesaid shortcomings by contending that in view of the ratio of the law laid down by the Apex Court in the case of Sethi Ro op Lal vs. Malti Thapar (Mrs.) and others, reported in (1994) 2 SCC 579, marked copy of the electoral rolls and the Register of Voters in Form-17A, by themselve s, are not documents which can be considered to be sacrosanct or intimately conn ected with the secrecy of the ballot so as the require the high degree of prima facie satisfaction that the Court normally insists upon before calling for the e lection records mentioned in the first part of Rule 93 of the Conduct of Electio n Rules, 1961. According to the learned counsel, such a situation would arise on ly in the event the prayer for calling the marked copy of the electoral rolls an d Register of Voters had been accompanied by a prayer for calling of the ballot papers (now EVMs). Learned counsel has been clear in the submissions that no pr ayer has been made by the election petitioner for summoning the EVMs used in Pol ling Station No.6/5 in the re-poll. This is on account of the fact that the fina l result sheet which is already on record and is not under dispute clearly shows that out of the 978 votes cast in Polling Station No.6/5 all but two votes have been secured by the returned candidate. Therefore, according to the learned cou nsel for the petitioner, all that the petitioner would be required to establish insofar as the aforesaid Polling Station is concerned is that votes exceeding tw o in number have been cast against the names of either the persons in Jail or pe rsons who are dead. In these circumstances, according to the learned counsel for the petitioner, the prayer for summoning the marked copy of Electoral Rolls and Register of Voters may be granted by the Court. 7. Insofar as Polling Station No.6/24 is concerned, learned counsel has urg ed that the pleadings in support of the issue raised are clear and specific; all required particulars have been furnished. Furthermore, according to the learned counsel, the evidence of PWs 7 and 12 would clearly go to show that a mix up ha d occurred in the counting of votes which needs further scrutiny of the Court. T he only way the matter can be resolved is by calling for the EVMs of the aforesa id Polling Station i.e. 6/24. In this regard, the learned counsel has relied on a judgment of the Apex Court in Ram Sewak Yadav vs. Hussain Kamil Kidwai, repor ted in AIR 1964 SC 1249, wherein the tests for exercise of the power of the Cour t to call for the ballot papers used in a poll have been laid down by the Suprem e Court. Reference has also been made by the learned counsel for the petitioner to several other decisions of the Apex Court reiterating the principles laid dow n in Ram Sewak Yadav (supra). According to the learned counsel for the petitione r, in the present case, the tests laid down by the Apex Court are adequately sat isfied. 8. The submissions made by the learned counsel for the applicant/election p etitioner have been stoutly resisted by Sri Nabakumar, learned counsel for the r eturned candidate. Learned counsel for the respondent has placed before the Cour t the provisions contained in Section 60 of the Evidence Act and in this regard has submitted that even if it can be assumed that the petitioner had succeeded i n proving that the concerned persons were in Jail custody or were dead before th e election, no acceptable evidence has been forthcoming to show that votes had b een cast against the name of any such person. Learned counsel has further argued that the petitioner and all his witnesses have deposed that the information tha t votes were cast against such names had been given to them by the agents and wo rkers of the election petitioner. No such agent/worker had been examined. The ev idence adduced by the petitioner on this score, according to the learned counsel , is therefore hearsay evidence which is not admissible. Several decisions have been cited by the learned counsel to bring home the point that hearsay evidence ought not to be relied upon by the Court and further that suspicion cannot be th e basis of any order of the Court. Reliance has also been placed on a recent jud gment of the Apex Court in Vikas and others vs. State of Maharashtra, reported i n (2008) 2 SCC 516 to contend that Section 32 of the Evidence Act is the only ex ception to the general rule that oral evidence must, in all cases, be direct as laid down in Section 60. Learned counsel for the returned candidate has been em phatic in his submissions that on the materials on record it cannot be said that any prima facie case has been established by the petitioner to generate satisfa ction in the Court that the marked copy of the Electoral Rolls and the Register of Voters in respect of Polling Station No.6/5 should be summoned by the Court. In this regard, reliance has also been placed on the decisions of the Apex Court in Jagjit Singh (Dr) vs. Giani Kartar Singh, reported in AIR 1966 SC 773, in R. Narayanan vs. S. Semmalai and others, reported in AIR 1980 SC 206, and in Belir am Bhalaik vs. Jai Beharilal Khachi and another, reported in (1975) 4 SCC 417. Learned counsel for the respondent has specifically draw the attention of the Co urt to the judgment of the Apex Court in Hari Ram vs. Hira Singh and others, rep orted in AIR 1984 SC 396, to contend that the views expressed in the said judgme nt are capable of being understood that a marked copy of the electoral roll bein g included in the election papers covered by the first part of Rule 93 of the Co nduct of Election Rules, 1961 would belong to the category of such election pape rs which are intimately connected with the secrecy of voting so as to require ex istence of special facts to enable the Court to call for such documents. Insofar as the issue pertaining to Polling Station No.6/24 is concerned, according to S ri Nabakumar, learned counsel for the returned candidate, no written complaint h ad been submitted either by PW 7 or PW 12 or by any other person with regard to the allegations of interchange of the votes secured by the returned candidate an d Sri H. Bidur Singh. In the absence of any such written complaint to the Return ing Officer, which would have been a natural consequence if any such anomaly had occurred, the evidence of the two witnesses in question is of doubtful credibil ity and should not even have the Court’s prima facie acceptance for passing of f urther orders. 9. The pleadings of the parties, the evidence adduced and the arguments adv anced having been duly noted the Court may now proceed to answer the issues rais ed. 10. Rule 93 of the Conduct of Election Rules which deals with production and inspection of election papers contemplate two different categories of such elec tion papers. The first category consists of: (a) the packets of unused ballot papers with counterfoils attached thereto; (b) the packets of used ballot papers whether valid, tendered or rejecte d; (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 sub-section (1) or sub-section (2) of section 152; and (dd) the packets containing registers of voters in Form 17A; (e) the packets of the declarations by electors and the attestation of t heir signatures . On the other hand, in the second category all other papers relating to the elect ion is included. While the papers in the first category are not to be opened and contents thereof are not to be inspected by any person or authority except unde r Court orders, all other election papers are open to public inspection and copi es thereof may also be obtained on application. The embargo under Rule 93 with r egard to the election papers falling in the first category is on account of the fact that such papers have a reasonable connection with the secrecy of voting wh ich is paramount to the democratic process. This is why various provisions have been enacted in the Representation of People Act, 1951 (Sections 98 and 128) whi ch can be related to the principle that no voter can be compelled to disclose hi s choice of candidate in the election. It is keeping in mind the aforesaid sacro sanct principle i.e. maintenance of secrecy in voting that Courts have insisted that a person seeking production of the documents falling in the first category should lay adequate materials before the Court to enable it to generate the requ isite satisfaction that any of the papers enumerated in the first category of Ru le 93 should be called for while resolving an election dispute. 11. An early announciation of the above view finds expression in the judgmen t of the Apex Court in Ram Sewak Yadav vs. Hussain Kamil Kidwai and others, repo rted in AIR 1964 SC 1249. The following observations contained in paragraphs 6 and 7 being relevant may be extracted herein below : (6) An election petition must contain a concise statement of the material fa cts on which the petitioner relies in support of his case. If such material fact s are set out the Tribunal has undoubtedly the power to direct discovery and ins pection of documents with which a civil court is invested under the Code of Civi l Procedure when