Holding

Production of the marked copy of the electoral roll does not impair voter secrecy and an amendment seeking its production is governed by Section 87 of the Representation of the People Act, not barred by Section 86(5).

Summary

The appellant contested the 1992 Moga Assembly election, losing by seven votes, and filed an election petition alleging that 22 bogus votes were cast for the winning respondent by impersonating dead electors. The petition sought production of the ballot paper account and the marked copies of electoral rolls for five polling booths. The trial court ordered production of the ballot paper account but refused to produce the marked rolls, and later dismissed the appellant's application to amend the petition. On appeal, the Supreme Court held that the marked copy of the electoral roll is maintained solely to identify voters and its production does not breach voter secrecy, and that the amendment sought does not pertain to corrupt practice, thus falling under Section 87 of the Representation of the People Act rather than the restrictive Section 86(5). Consequently, the trial court's orders were set aside, directions were issued for production of the marked rolls, and the amendment application was to be decided on its merits.

Issues considered

Whether the production of the marked copy of the electoral roll impairs the secrecy of the vote under Conduct of Elections Rules, 1961.
Whether an amendment to an election petition seeking production of marked electoral rolls is permissible under Order VI Rule 17 of the CPC and the Representation of the People Act, 1951, given that it does not relate to corrupt practice.

Legislation cited

Code of Civil Procedure, 1908s. Order VI Rule 17
Conduct of Elections Rules, 1961s. Rule 93(1)(d)
Representation of the People Act, 1951s. 83(1)(a), s. 83(1)(b), s. 86(5), s. 87

Subjects

election petitionmarked electoral rollvoter secrecyamendment of pleadingsRepresentation of the People ActConduct of Elections Rulescorrupt practiceCPC Order VI Rule 17

Judgment

A SETHI ROOP 1:-AL
v.
MRS. MALTI THAPAR AND ORS.

FEBRU~Yl5, 1994

B [S.C. AGRAWAL AND M.K. MUKHERJEE, JJ.]

Representation of the People Act, 1951: Sections 86(5) and 87-Amend-
ment of Election Petition-Not relating to corrupt practice-To be considered
in the light of S.87 and Order VI Rule 17 C.P.C.
c Code of Civil Procedure 1908: Order VI Rule 17-Amendment of
petition-Election petition-General power of amendment-Subject to the
Representation of the People Act and restricted by S.86 (5) thereof

Conduct of Elections Rules, 1961: Rule 93 (1) clause (d)-Marked copy
D of electoral rolls-Production in Cou~Whether could impair the secrecy of
the voters.

The appellant and the four respondents contested an Assembly
election. Respondent No.1 won the election, while the appellant secured
seven votes less than the returned candidate. Appellant filed an election
E petition on various grounds. He alleged that 22 bogus votes were cast in
favour of Respondent No. 1 and prayed for production of Ballot Paper
Account and marked copies of el~toral rolls of certain polling booths. The
Trial Court allowed the prayer for,.production of Ballot Paper Account,
but rejected the prayer for production of marked electoral rolls. Thereafter
F the appellant filed an application for amendment of the Election Petition,
and the same was dism~ssed. Hence these appeals.

Allowing these appeals, this Court

HELD: 1. Considering the limited purpose for which the marked
G copy of the electoral roll is maintained. namely, to identify the elector, it
cannot be said that production thereof would impair the secrecy of the
voters. [1005-H]

2. The appellant has averred in the Election .Petition that against
dead voters, votes have been cast and in support of his contention he has
H not only examined himself but also examined his polling agents of ~e
1002
SETHI ROOP LAL v. MALTITHAPAR(MRS.)[MUK.HERJEE,J.] 1003

respective booths wherein, according to him, false votes have been cast. A
Besides he has exhibited the electoral rolls which those polling agents
maintained to ascertain the identity of the electors who had come to vote.
The appellant has thus made out a prima facie case for production of the
marked copy of the electoral roll of the five booths referred to in his
application. (1006-A-C]
B
3. Order VI Rule 17 of the Code of Civil Procedure, 1908 which
relates to amendment of pleadings will a f orti,ori apply to election petitions
~ subject, however, .to the provisions of the Act and of any rules made
thereunder. Under Order VI Rule 17 of the Code the Court has the power
to allow parties to the proceedings .to alter or amend their pleadings in c
such manner and on such terms as may be just and it provides that all
such amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties. But
exercise of such general powers stands curtailed by Section 86(5) of the
Representation of the People Act, 1951, when amendment is sought for in
respect of any e.Jection petition based on corrupt practice. Since Section 87 D
or
of the Representation of the People Act, 1951 and, for that matter, Order
VI Rule 17 of the Code • is subject to the provisions of the Act, which
necessarily includes Section 86(5), the general power of restrictions im-
posed by the latter. But in the instant case, what the appellant sought to
bring in his election petition, by way of amendment, did not relate to any E
corrupt practice and, therefore, it had to be considered in the light of
Section 87, and de hors Section 86 (5) of the Act. [1007-A-C]

FA. Sappa v. Singore, (1991) 3 SCC 375, distinguished.

4. The Trial Court should issue necessary directions for production F
of the marked copy of the electoral rolls as prayed for by the appellant and
also dispose of the amendment application on its merits. (1007-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 841-42
of 1994.
G
...
"" From the Judgment and Order dated 2.11.92 & 28.5.93 of the Punjab
~
& Haryana High Court in C.M.A. No. 47-E/92 & C.M. No. 2-E/93 in
Election Petition No. 5 of 1992.

R.L. Batta, H.K Puri and S.K Puri for the Appellant. H
1004 SUPREME COURT REPORTS [1994} 1 S.C.R.

A Kapil Sibai and Ashok Grover for the Respondents.

The Judgment of the Court was delivered by

M.K. MUKHERJEE, J. Special leave granted in both the petitions.

B 1. In the these two appeals orders dated November 2, 1992 and May
28, 1993 passed by the High Court of Punjab & Haryana in Election
Petition No. 5 of 1992 are under challenge. Facts leading to the filing of
these appeals and relevant for their disposal are as under:- ., ""

2. The appellant and the four respondents herein contested the
c election for 99 Moga Assembly Constituency polling for which took pJace
on February 19, 1992. When the result were declared it was found that the
respondent No. 1 had secured the highest number of votes - and thereby
won the election - followed by the appellant, who secured 7 votes less that
her, and the other respondents. The appellant then filed the election
D petition assailing the election on various grounds as detailed therein. The
ground, which is relevant for our present purposes, finds place in para- -..
graph 18 of the Election Petition which reads as under:-

"That twenty two bogus votes of dead electors by impersonation
were cast in favour of respondent No.1 at the instance of respon-
E dent No.1 and her supporters. The relevant details of these dead
electors is annexed alongwith as Annexure 'P-9'."
~

3. In course of the trial that followed the appellant examined himself
to substantiate the allegations made by him in the petition and thereafter
F moved an application on October 22,1992 seeking production of Form
No.16 (Ballot Paper Account) of booth Nos.1 to 125 and marked copies of
the electoral rolls of booth Nos. 8, 35, 44, 56 and 57. After hearing the
parties the learned trial Judge allowed the prayer of the appellant so far .~

as it related to the production of Form No. 16 but rejected the other prayer
by the impugned order dated November 2, 1992. Thereafter on January 4,
G 1993 the appellant filed an application praying for_ amendment of the
Election Petition which was rejected by the other impugned order. ,.
~

't-
4. In rejecting the prayer of the appellant for production of the
marked copy of the electoral rolls the learned Judge first observed that as
H that document was included in sub-clause (d) of Rule 93(1) of the Conduct
~

f
SETIII ROOP LAL v. MALTI TIIAPAR (MRS.) [MUKHERJEE, J.] 1005

-1. of Elections Rules, 1961 ('Elections Rules' for short) it should not be A
allowed to be produced to maintain secrecy of the election. The other
ground which weighed with the learned Judge was that no case had been
made out for summoning the document. Having considered the materi:~!:;
on record in the light of the relevant Rules and circulars we are unable to
sustain either of the above grounds. B
5. Rules 93(1) of the Election Rules provides that while in the
custody of the District Election Officer or the Returning Officer, the
~
documents referred to in various clauses thereof shall not be opened and
their contents shall not be inspected by, or produced before any person or
authority except under the order of the Competent Court; and the docu- c
ments referred to in clause (d) of the above Rule include the packets of
the marked copy of the electoral roll

.. 6. The manner in which the marked copy of the electoral rolls is to
be maintained is provided for in Chapter V of the official handbook issued D
by the Election Commission of India for use its officers during election. It
is provided therein that ac; soon as an elector enters the polling station he
has to proceed directly to the First Polling Officer who ic; to be in-charge
' - of the marked copy of the electoral roll and responsible for the identifica-
' tion of the electors. After taking requisite steps to locate the name of the
elector in the electoral roll and after checking it with the particulars in the E
relevant entry ill the roll, he is to call out the page number, the part
number, the serial number and the name of the elector to the hearing of
the polling agent and the Second Polling Officer. If there is no challenge
as regards the identity of the elector he is required to underline in every
ease the entry relating to the elector in the marked copy of the electoral F
roll with him and where the elector is a female to put a (Y) mark also on
the left side of the name of the female elector. With such marking the duty
of the First Polling Officer ends and the voter is then required to move to
the Second Polling Officer whose duty is to supply the ballot paper and
record on the counterfoil of the ballot paper the electoral roll part number
and the serial number of the elector, as entered in the marked copy of the G
• ~
electoral roll. Considering the limited purpose for which the marked copy
of the electoral roll is maintained, namely, to identify the elector, it cannot
be said that production thereof would inipair the secrecy of the voters.

7. The other observation of the learned trial Judge that no case was H
\'
1006 SUPREME COURT REPORTS [1994] 1 S.C.R.

A made out for summoning the marked copy of the electoral roll is also not ..1-
borne out by the record. As has already been noticed the appellant has
averred in the Election Petition that against dead voters, votes have been
cast and in support of his contention he has not only examined himself hut
also examined his polling agents of the respective booths wherein, accord-
ing to him, false votes have been cast. Besides he has exhibited the electoral
B rolls which those polling agents maintained to ascertain the identity of the
electors who had come to vote. It must, therefore, be held that the
appellant has made out a prima f acie case for production of the marked
copy of the electoral roll of the five booths. referred to in his application. --'.,

c 8. Coming now to the other impugned order, we find that the learned
Judge has rejected the prayer for amendment of the petition principally on
the ground that by the proposed amendment the appellant was seeking to
introduce 'material fact' as distinguished from 'material particulars' of a
corrupt practice which was impermissible. In so. doing the learned Judge

D
drew sustenance from the following observations made by this Court in the
case of F.A. Sappa v. Singore, [19911 3 SCC 375:
.
.....
"(i) Our election Law is statutory in character as distinguished from
common law and it must be strictly complied with. J

(ii) There is a clear and vital distinction between 'material facts'
E
referred to in Section 83 (1) (a) and 'particulars' in relation to
corrupt practice referred to in Section 83(1)(b) of the Act.

(iii) Section 86(5) of the Act empowers the High Court to allow ~

particulars of any corrupt practice which has already been alleged
F in the petition to be amended or amplified provided the amend-
ment does not seek to introduce a corrupt practice which is not
previously pleaded.

(iv) By implication amendment cannot be permitted so as to · .-
introduce 'material facts'."
G
9. The fasciculus of sections appearing in Chapter Ill of Part VI of
the Act Jays down the procedure for trial of election petitions. Sub-section
..,. •
( 1) of Section 87 thereof :provides that subject to the provisions of this Act
and of any rules made thereunder, every election petition shall be tried by
H the High Court, as nearly as may be, in ·accordance with the procedure
f
SETIIl ROOP LAL v. MALTI THAP AR (MRS.)[MUKHERJEE, J.) 1007

applicable under the Code of Civil Procedure ('Code' for short). That A
necessarily means that Order VI Rule 17 of the Code which relates to
amendment of pleadings will afortiori apply to election petitions subject,
however, to the provisions of the Act and of any rules made thereunder.
Under Order VI Rules 17 of the Code the Court has the power to allow
parties to the proceedings to alter or amend their pleadings in such manner
and on such terms as may be just and it provides that all such amendments
B
shall be made as may be necessary for the purpose of determining the real
questions in controversy between the parties. But exercise of such general
~
powers stands curtailed by Section 86 (5) of the Act, when amendment is
sought for in respect of any election petition based on corrupt practice.
Since Section 87 of the Act - and, for that matter, Order VI Rule 17 of the c
Code - is subject to the provisions of the Act, which necessarily includes
Section 86(5), the general power of amendment under the former must

- yield to the restrictions imposed by the latter.

10. Indubitably, therefore, if the amendment sought for in the instant
case related to corrupt practice we might have to consider the same in D
conformity with Section 86(5) of the Act as interpreted by this Court in the
case of FA. Sappa (supra) and accept the findings of the learned Judge as
recorded in the impugned order; but then, . the learned Judge failed to
notice that the amendments, the appellant intends to bring in his election
petition, do not relate to any corrupt practice and, therefore, it has to be E
considered in the light of Section 87, and de hors Section 86(5) of the Act.
For the foregoing reasons the impugned order dated May 28, 1993 cannot
also be sustained.

11. We, therefore, allow these appeals and set aside the impugned
orders dated November 2, 1992 and May 28, 1993. The learned Judge will F
now issue necessary directions for production of the marked copy of the
~ ~
electoral rolls as prayed for by the appellant and also dispose of the
amendment application on its merit. However, there will be no order as to
costs.

G.N. Appeals allowed.
~