Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
PETITIONER:
BASANAGOUDA
Vs.
RESPONDENT:
DR. S. B. AMARKHED AND ORS.
DATE OF JUDGMENT31/03/1992
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
KULDIP SINGH (J)
CITATION:
1992 AIR 1163 1992 SCR (2) 397
1992 SCC (2) 612 JT 1992 (2) 484
1992 SCALE (1)770
ACT:
Election:
Representation of the People Act, 1951/Conduct of
Election Rules, 1961:
Section 87, 100(1)(b) & (d), 135A/Rule 93:
Corrupt practice-Booth capturing-Allegations must be
specifically pleased with material particulars-Production of
documents sought-Court’s discretion to examine expediency,
justness and relevancy of documents in the light of clear
pleadings-Need for maintaining secrecy of ballots-Suggestion
to Rule making authority-To have fresh look into the
mandatory language of Rule 93(1) bringing it in conformity
with section 135A.
Code of Civil Procedure, 1908
Order 11 Rule 14, Order 16 Rule 6:
Production of documents-Election matters-Relevant
considerations for ordering production-What are.
HEADNOTE:
The appellant was declared elected as a member of the
State Assembly. The Respondents, who was the nearest
unsuccessful candidate filed an Election Petition before the
High Court, challenging the election of the appellant. One
of the grounds alleged was that the appellant had indulged
in booth capturing and rigging of booths in certain polling
booths, with the connivance of police officials and election
agents of the appellant. It was also alleged that the
appellant and his supporters prevented the voters from
exercising their franchise by threatening them; that the
ballot papers were seized from the officials and were marked
in favour of th appellant; and that the appellant’s
supporters forged the signatures/thumb impressions on the
counter foil of ballot papers. The High Court framed 4
issues, the main among them being the alleged capturing and
rigging of polling
398
booths.
The respondent also filed an application under Order XI
Rule 14 read with Order XVI Rule 6 CPC seeking production of
certain documents by the District Election Officer. The
High Court allowed the petition and summoned the documents.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
Accordingly, the documents were produced by the Returning
Officer.
The present appeal is against the said order of the
High Court.
On behalf of the appellants, it was contended that the
respondent laid no factual foundation in the election
petition with material particulars of the alleged capturing
of the booths and rigging; that there were no pleadings at
all and no case has been made out for opening the ballot
boxes and examining the used ballots; and that the High
Court did not appreciate the legal implication arising from
its order.
On behalf of the respondents it was contended that it
would be impossible for a candidate to plead allegations
with precision particularly when his election agents and the
officials including the Police connived with the other
candidate; that unless the election material is summoned and
perused it would be difficult to substantiate such plea; and
that the order challenged being an interlocutory one it
could be assailed in the regular appeal, after the Election
Petition was decided.
Partly allowing the appeal, this Court,
HELD: 1. The High Court was wrong in holding that
though no factual foundation has been laid in the election
petition, but since there were allegations of booth-
capturing and rigging in various paragraphs of the petition
it was necessary to summon and examine the documents asked
for by the respondent. The examination of marked ballot
papers and other used ballot papers can in no way
substantiate the allegations of booth-capturing. Neither
the names of persons nor any other details were given in the
election petition. Only bare allegations were made that
votes of dead persons and those who had left the
constituency had been cast. In the circumstances the High
Court grossly erred in permitting the summoning of items (a)
to (c) and (e) of para I of the application. As regards the
other items, there is no need to interfere with the High
Court’s order. [407B-D]
2. The power to order production of documents is
coupled with discre-
399
tion to examine the expediency, justness and the relevancy
of the documents to the matter in question. These are
relevant considerations which the Court shall have to advert
to and weigh before deciding to summon the documents in
possession of the party to the election petition. At the
same time the election petition proceedings being of quasi-
criminal nature the allegations in the petition must be
pleaded clearly and with full particulars; especially the
grounds of corrupt practices cannot be permitted to be tried
on the basis of deficient pleadings or by filling
applications for production of record to fish out grounds as
material which is not part of the pleadings. In any case
secrecy of the ballot boxes cannot be tinkered unless an
iron-cast case is made out in the election petition.[403F-H]
is made out in the election petition. [403F-H]
3. Booth-capturing wholly negates the elections process
and subverts the democratic set up which is the basic
feature of our Constitution. Booth-capturing has now been
made an offence under section 135 A of the Representation of
the People Act. The allegation of the booth-capturing and
rigging, if proved, is a corrupt practice under section
100(1)(b) and materially affects the result of the election
under clause (1) (d) and also is a disqualification.
Therefore, the allegation must be specifically pleaded
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
giving material particulars. [405B-D]
4.1. The Court while exercising its power under Order
XI Rule 14 and Order XVI Rule 6 CPC would also have to keep
in view the rigour of sub-rule (1) of Rule 93 of the Conduct
of the Election Rules, 1961, relating to production and
inspection of election papers. [405D-E]
4.2. In order to maintain the secrecy of the ballot
papers, unless adequate material facts are on record which
alone would afford adequate basis to exercise the
discretion by the court, the packets or the used ballot
papers with counter foils attached thereto or the packets of
used ballot papers whether valid, tendered or rejected
cannot be opened. Equally the packets or declarations by
electors and the authorisation of their signatures shall not
be opened unless ordered by the court in that behalf. The
court shall not permit a roving enquiry to enable the
defeated candidates/election petitioner to have access
thereto to fish out the grounds. The High Court, would
therefore, be circumspected to order summoning the records
covered under Rule 93(1). [406F-H]
Hari Ram v. Hira Singh & Ors., [1984] 1 SCR 932 and Ram
Sewak Yadav v. Hussain Kapil Kidwal & Ors., [1964] 6 SCR
238, relied on.
400
5. To effectuate the objects of section 135A of the
Representation of the People Act it may be open to the rule
making authority to have fresh look into the mandatory
language of Rule 93(1), so as to bring it in conformity with
section 135A of the Act. [407A]
JUDGMENT:
CIVIC APPELLATE JURISDICTION : Civil Appeal No. 1210 of
1992.
From the Judgement and Order dated 25.11.1991 of
Karnataka High Court in E.P. No. 11 of 1990.
Ms. Parmila M. Nesargi and R.C. Misra for the
Appellant.
K. Madhava Reddy, B.Rajeshwar Rao, D. Parkash Reddy,
Vimal Dave and M. Veerappa for the Respondents.
The Judgement of the Court was delivered by
K. RAMASWAMY, J. Special Leave granted.
The appellant was declared on November 27, 1989 to have
been elected as a member of the Karnataka Legislative
Assembly from 23 Manavi Assembly Constituency from Raichur
Dist. The respondent is the nearest unsuccessful candidate
who called it in question in Election petition No. 11 of
1990 in the High Court of Karnataka at Bangalore. He sought
to declare that the election of the appellant as void under
section 100(1)(a)(b) and (d) of the Representation of the
People Act 43 of 1951 for short ’the Act’. One of the
grounds alleged is corrupt practices stated in paragraphs
IV(6) to (12) that the appellant had indulged in booth
capturing and rigging of booths in Polling Booth Nos.
5,6,7,68,73,74,88,91 to 96,100,102 & 103, most of which are
said to be situated in Bagalwad Mandal Panchayat to which
the appellant was the erstwhile Pradhan. According to the
pleading, the Modus operandi adopted was that the
appellant and his supporters "threatened the officials with
full connivance of the police officials and that of the
election agents of the petitioner, captured the booth....
Respondent No. 1 (appellant) and his supporters have
prevented the voters from exercising the franchise and sent
them away threatening them, thereafter seized the ballot
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
papers from the officials and thus put the X-mark seal
against the symbol of bicycle (election symbol of the
appellant). They put them in the ballot boxes by using so
respondent No. 1(appellant) and his supporters put either
thumb impression or forged
401
signatures on the counter foils of the Ballots, and in some
counter-foils no signature was put. Thus it was alleged
that the appellant secured 80 to 90 per cent of the votes
polled. It was also stated that the Returning Officer
lodged F.I.Rs., which were registered as case No. 371 of
1989 and 370 of 1989 in the Court of J.M.F.C., Manvi against
the appellant. It was admitted in the written statement
that repolling in Booth Nos. 6 & 7 was ordered which was
accordingly held on November 26, 1989. The other material
allegations were denied in the written statement of the
appellant. As many as 4 issues have been framed. Issue No.
2 relates to the alleged capturing and rigging of the
polling booths referred to hereinbefore. The respondent
filed I.A.No.5/1991 under Order XI Rule 14 read with Order
XVI Rule 6 of the Code of Civil Procedure 1908 for short
’the Code’ read with s.87 of the Act.
In the I.A., the respondent sought production of the
following documents by the 7th respondent, Dist. Election
Officer, Deputy Commissioner Raichur:
1. In the respect of the following polling booths of
23-Manvi Assembly Constituency-Raichur-Booth Nos.
5,68,73,74,88,91 to 96,100,102,103 and 105, the following
document.
(a) The packets of unused ballot papers with counter
foils attached thereto.
(b) the packets of used ballot papers whether valid,
tendered or rejected.
(c) the packets of the counterfoils of used ballot.
(d) the packets of the marked copy of the electoral
roll; and
(e) the packets of the declaration by electors and the
attestation of their signatures.
(f) report on the Election by the Returning Officer.
(g) Presiding Officer/Polling Officers diary
maintained.
II. Complaint given presiding Officer/Polling Officers
of polling booths Nos. 6 and 7 (only), to the CPI Manvi
about corrupt practices by
402
Respondent No. 1 and his protagonists and also to Respondent
No. 7.
III. Vehicle movement Register (diary) maintained by
SSB wireless (mobile Unit II to SSB Raichur) on 23.11.89,
from CPI Manvi.
IV. Calling for original letter of resignation dated
6.12.89 given to Deputy Commissioner Raichur by Respondent
No. 1.
It would appear that the appellants’s counsel in the
High Court did not choose to file a counter but pressed for
decision on the petition on merits. The High Court by its
impugned order dated November 25, 1991 allowed the petition
and summoned the above documents. As per the counter
affidavit filed by the respondent (election petitioner) in
this court, the documents were produced in the court on
December 10, 1991 by the Returning Officer (7th respondent).
The contention of the learned counsel for the appellant
is that the respondent laid no factual foundation in the
election petition with material particulars of the alleged
capturing of the booths and rigging. Only bold allegations
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
bereft of particulars was made. There are no pleadings at
all and no case is made out for opening the ballot boxes and
examining the used ballots. To fill in the gaps and to make
roving enquiry to fish out grounds to set aside the
election, the petition was filed to summon the documents.
The High Court did not appreciate the legal implication
arising from the order. This Court in catena of decisions
depricated such an attempt. In support thereof strong the
reliance was placed on Hari Ram v.Hira Singh & Ors., [1984]
1 SCR 932, Sri K. Madhava Reddy, the learned Senior counsel
for the respondent contended that apart from all other
allegations the plea of the capturing the booth and rigging
at the poll is a serious offences punishable under section
135A of the Act, impinging upon the efficacy of democratic
process of fair election and so it should be depricated with
heavy hands. It would be impossible for a candidate to
plead allegations with precision in this behalf, in
particular, when the election agents of the candidate
(election petitioner) connived with the winning candidate
and the officials or the police. Unless the election
material is summoned and perused it would be difficult for
the election petitioner to substantiate the plea. The
previous decisions of this court are to be viewed in the
light of the object of s.135A. Therefore, the High Court is
justified in exercising its power under Order XI Rule 14
C.P.C. to produce the record. The order of the High Court
thereof is not vitiated by an error of law. It is also
403
contended that the impugned order is an interlocutory one
and it would be open to the respondent, if ultimately
unsuccessful, to assail its validity in the appeal.
The diverse contentions give rise to the question
whether the order of the High Court is legal. Under s.87 of
the Act the High Court, subject to the provision of the Act
and Rules, if any, made thereunder, shall try the election
petition as if it is the trial of the suit adopting as
nearly as may be the procedure applicable to the suit under
the Code. Order XI Rule 14 C.P.C. empowers discovery and
inspection of the records and Rule 14 is the under :
"Production of Documents-It shall be lawful for
the court, at any time during the pendency of any suit, to
order the production by any party thereto, upto oath, of
such of the documents in his possession or power, relating
to any matter in question in such suit, as the court shall
think right; and the court may deal with such documents,
when produced, in such manner as shall appear just".
The Court, therefore, is clearly empowered and it shall
be lawful for it to order the production, by any party to
the suit, such documents in his possession or power relate
to any matter in question in the suit provided the court
shall think right that the production of the documents are
necessary to decide the matter in question. The court also
has been given power to deal with the documents when
produced in such manner as shall appear just. Therefore,
the power to order production of documents is coupled with
discretion to examine the expediency, justness and the
relevancy of the documents to the matter in question. These
are relevant considerations which the court shall have to
advert to and weigh before deciding to summoning the
documents in possession of the party to the election
petition. At the same time the election petition -
proceedings being of quasi-criminal nature the allegations
in the petition must be pleaded clearly and with full
particulars, especially the grounds of corrupt practices
cannot be permitted to be tried on the basis of deficient
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
pleadings or by filing applications for production of record
to fish out grounds as material which is not part of the
pleadings. In any case secrecy of the ballot boxes cannot
be tinkered unless an iron-cast case is made out in the
election petition. Section 135A which was brought on
statute with effect from
404
March 15, 1989 under Amendment Act 1 of 1989 prescribes
booth capturing to be an offence and the person committing
it shall be punishable with imprisonment for a term which
shall not be less than six months and which may be extended
to a maximum of two years and fine. Where such offence was
committed by a person in the service of the Govt., he shall
be punishable with imprisonment for a term which shall not
be less than one year but which may extend to three years
and fine. Booth capturing has been explained in its
explanation thus :
"For the purpose of this section "booth capturing"
includes, among other things, all or any or the
following activities, namely:-
(a) Seizure of a polling station or a place fixed
for the poll by any person or persons, making
polling authorities surrender the ballot papers or
voting machines and doing of any other act which
affects the orderly conduct of election;
(b) taking possession of a polling station or a
place fixed for the poll by any person or persons
and allowing only his or their own supporters to
exercise their right to vote and prevent others
from voting;
(c) threatening any elector and preventing him
from going to the polling station or a place fixed
for the poll to cast his vote;
(d) seizure of a place for counting of votes by
any person or persons making the counting
authorities surrender the ballot papers or voting
machines and the doing of anything which affects
the orderly counting of votes;
(e) doing by any person in the service of
Government, of all or any of the aforesaid
activities of aiding or conniving at, any such
activity in the furtherance of the prospects of the
election of a candidate."
This is an inclusive explanation and seizure of polling
station, taking possession thereof and making polling
authorities to surrender the ballot papers or voting
machines and doing of any other act which affects the
orderly conducting of election etc. have been enumerated.
They are only
405
explanatory and inclusive but not exhaustive. The
Parliament used words of width with generality to lug in or
encompass diverse acts or omissions innovated with
ingenuinity to escape from clutches of law. It is common
knowledge that in the recent past there have been various
complaints regarding booth-capturing. The tendency to over-
awe the weaker section of the society and to physically take
over the polling booths meant for them is on the increase.
Booth-capturing wholly negates the election process and
subverts the democratic set up which is the basic features
of our constitution. During the post independent era ten
parliamentary elections have entrenched democratic polity in
this country which cannot be permitted to be eroded by
showing laxity in the matter of booth-capturing which has
now been made an offence under s.135A of the Act. The
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
allegation of booth capturing and rigging, if proved, is a
corrupt practice under s.100(1)(b) and materially affects
the result of the election under cl.(1)(d) and also is a
disqualification. Therefore, the allegation must be
specifically pleaded giving material particulars. The
nature and various acts of capturing booths were enumerated
in the explanation to s.135A. As stated they are only
illustrative but not exhaustive. Diverse ways would be
innovated to capture booths and rigging. The court while
exercising its power under Order XI Rule 14 and Order XVI
Rule 6 C.P.C. would also have to keep in view the rigour of
sub-Rule (1) of Rule 93 of the Conduct of the Election Rules
1961 for short ’the Rules’ which provides production and
inspection of election papers thus:
"93(1). Production and Inspection of Election
Papers while in the custody of the district
election officer or, as the case may be, the
returning officer
(a) the packets of the unused ballot papers with
counterfoil attached thereto;
(b) the packets of used ballot papers whether
valid, tendered on rejected;
(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 s.152; and
406
(e) 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.
(2) Subject to such conditions and to the payment
of such fee as the Election Commission may direct,
(a) all other papers relating to the election
shall be open to public inspection; and
(b) copies thereof shall on application be
furnished.
(3) copies of the returns by the returning officer
forwarded under rule 64, or as the case may be
under clause (b) or sub-rule (1) of rule 84 shall
be furnished by the returning officer, district
election officer, chief electoral officer or the
Election Commission on payment, of a fee of two
rupees for each copy."
This Court while considering the effect of Rule 93 held
in Hari Singh v. Hira Singh & Ors. (supra), that perusal of
this Rule clearly shows that the Legislature intended to
make clear distinction between one set of documents and
another. So far as 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) and (d) of
sub-rule (2) of Rule 93 could be liberally allowed to be
inspected. This was also the view in Ram Sewak Yadav v.
Hussain Kamil Kidwal & Ors, [1964] 6 SCR 238. Thus to
maintain the secrecy of ballot papers unless adequate
material facts are on record which alone would afford
adequate basis to exercise the discretion by the court; the
packets or the used ballot papers with counterfoils attached
there to or the packets of used ballot papers whether valid,
tendered or rejected cannot be opened. Equally the packets
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
of declarations by electors and the authorisation of their
signatures shall not be opened unless ordered by the court
in that behalf. The court shall not permit a roving enquiry
to enable the defeated candidate/election petitioner to have
access thereto to fish out the grounds. The High Court,
would therefore, be circumspect to order summoning that
records covered under rule 93(1). To effectuate the ob-
407
jects of s.135A of the Act it may be open to the rule making
authority to have fresh look into the mandatory language of
Rule 93(1), so as to bring it in confirmity with s.135A of
the Act.
The High Court in the impugned order has held that
though no factual foundation has been laid in the election
petition, but since there are allegations of booth-capturing
and rigging in various paragraphs of the petition it is
necessary to summon and examine the documents asked for by
the respondent. We do not agree with the High Court. The
examination of marked ballot papers and other used ballot
papers can in no way substantiate the allegations of booth-
capturing. Mr. Madhva Reddy, learned counsel for the
respondent, contended that the marked ballot papers are
required to prove that votes of dead persons and those who
had left the constituency were polled. Neither the names of
persons nor any other details are given in the election
petition. Only bare allegations are made that votes of dead
persons and those who had left the constituency had been
cast. We are, therefore, of the view that the High Court
grossly erred in permitting the summoning of items (a) to
(c) and (e) of para I of the application. We set aside the
High Court order to that extent. As regards items (d), (f)
and (g) of para I and paras II and III of the application
are concerned, we are not inclined to interfere with the
order to the High Court. The appeal is partly allowed in
the above terms with no order as to costs.
G.N. Appeal partly allowed.
408