Case: Hari Ram Vs. Hira Singh &amp; Ors

the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials."5. After going through the judgment of the High Court and the application of the respondent-petitioner for inspection of the documents concerned. We are satisfied that no. case for inspection was at all made out and the High Court erred in allowing the prayers of the respondent and acted against the settled principles as extracted above.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 S. 165 of the Indian Evidence Act. In doing so with due deference the High Court overlooked that the Representation of the people Act was a special Act and provisions of the Evidence Act or the Code of Civil Procedure would only apply where they are not excluded. Thus at the very outset, with due respect, the approach of the High Court was legally incorrect. Furthermore, in the case of Ram Sewak Yadav v. Hussain Kamil Kidwai, (1964) 6 SCR 238 : (AIR 1964 SC 1249 ) this Court while interpreting the provisions of Rule 93 of the Conduct of Election Rules, 1961 framed under the Act, made the following observations : -"By Rule 93 of the Conduct of Election Rules, 1961, it is provided that :"(1) While in the custody of the returning officer -(a) the packets of unused ballot papers :(b) the packets of used ballot papers whether valid, tendered or rejected :(c) 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 S. 152; and(d) the packets of the declarations by electors and the 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 or tribunal.(2) All other papers relating to the election shall be open to public inspection subject to such conditions and to the payment of such fee, if any, as the Election Commission may direct.(3) Copies of the returns by the Returning officer forwarded under R. 64 or as the case may be under sub-rule (3) of Rule 84 shall be furnished by the chief electoral officer of the State concerned on payment of a fee of two rupees for each such copy.The rule makes a clear distinction between ballot papers and other election papers : ballot papers may be inspected only under the order of a competent court or tribunal, but other documents are subject to certain conditions open to public inspection."The Court further observed : -"The Returning Officer is not a party to an election petition and an order for production of the ballot papers cannot be made under O. 11, Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers .........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 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 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 the parties inspection of the ballot papers is necessary.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 out with precision supported by averments of material facts."7. A perusal of this rule clearly shows that the Legislature intended to make a clear distinction between one set of documents and another. So far as the counterfoils and the marked copy of the electoral rolls were concerned, there was a strict prohibition for opening these documents unless the Court was fully satisfied that a cast-iron case was made out for the same whereas documents mentioned in clauses (a) &(b) of sub-rule (2) of Rule 93 (as amended) could be liberally allowed to be inspected.8. We are afraid that the High Court has not kept these principles in view while allowing the prayers of the respondent. The main ground put forward by the respondent was that there were a number of dead persons for whom also votes were cast. Despite this allegation no. details and particulars were given nor was it even mentioned whether the Polling Agent of the respondent had made any note of the fact that votes were actually cast for dead persons and the number of these votes. The allegations made by the respondent-petitioner in his application for inspection are frightfully vague. There is no. allegation as to whether any vote was cast for the dead persons and this is what the respondent sought to find out by inspecting the marked electoral rolls. It is manifest that this attempt of the respondent was nothing but to fish out the material for challenging the election of the appellant and it clearly violated the sanctity and secrecy of the electoral process. Thus, the High Court was clearly wrong in allowing such prayers for inspection. As far as the inspection of counterfoils was concerned, even the respondent did not press for the same realising that he had not made out any strong case for such an action.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. We are afraid that the High Court has not kept these principles in view while allowing the prayers of the respondent. The main ground put forward by the respondent was that there were a number of dead persons for whom also votes were cast. Despite this allegation no. details and particulars were given nor was it even mentioned whether the Polling Agent of the respondent had made any note of the fact that votes were actually cast for dead persons and the number of these votes. The allegations made by the respondent-petitioner in his application for inspection are frightfully vague. There is no. allegation as to whether any vote was cast for the dead persons and this is what the respondent sought to find out by inspecting the marked electoral rolls. It is manifest that this attempt of the respondent was nothing but to fish out the material for challenging the election of the appellant and it clearly violated the sanctity and secrecy of the electoral process. Thus, the High Court was clearly wrong in allowing such prayers for inspection. As far as the inspection of counterfoils was concerned, even the respondent did not press for the same realising that he had not made out any strong case for such an action.