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Kirtan Sahu, After Him Uma Sahnani And Others v. Thakur Sahu And Others
Case Summary — Orissa High Court (Full Bench Opinion on Admissibility of Electoral Rolls)
Factual and Procedural Background
The point for decision arose when a First Appeal was before a Division Bench of this Court and the admissibility of electoral rolls prepared under the Representation of the People Act came into question. A prior Division Bench decision in Paramananda Sahu v. Babu Sahu (1970 36 C.L.T. 1211) had held that such electoral rolls were not admissible under section 35 of the Evidence Act. Three other cases had taken the same view. The Division Bench seised of the present First Appeal considered that the earlier view was incorrect and, under Rule 3 of Chapter V of The Orissa High Court Rules, Volume I, formulated and referred the following question to the Full Bench:
The opinion was delivered by R.N. Misra, J., with G.K. Misra, C.J., and B.K. Patra, J., concurring. After answering the referred question, the Full Bench directed that the First Appeal be placed before a Division Bench together with its opinion for disposal in accordance with law.
Legal Issues Presented
- Whether the electoral roll prepared under the Representation of the People Act is inadmissible in evidence without the author of the electoral roll and the person supplying the information being examined in the case.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Paramananda Sahu v. Babu Sahu (1970 36 C.L.T. 1211) | Held that electoral rolls were not admissible in evidence under section 35 of the Evidence Act. | The Full Bench observed that this Division Bench decision had taken the contrary view and concluded that that earlier view was not correct. |
| Nukuni Dibya v. Harekrishna Satpathy (S.A. No. 574 of 1966 — D/24-8-1970) | Earlier single-judge holdings adopting the Division Bench position that electoral roll not admissible without proof of source or examination of preparer. | The opinion records that the author (R.N. Misra) had earlier held the electoral roll inadmissible in this case following the Division Bench view; the Full Bench disagreed with that earlier conclusion. |
| Musi Bewa v. Raghunath Das (S.A. No. 636 of 1966 — D/1-9-1970) | Same position as noted immediately above (single-judge decision following Division Bench). | Recorded as an instance where the author previously followed the Division Bench view; the Full Bench overruled that position. |
| Subi Bewa v. Gurubari Rana (A.I.R. 1971 Orissa 299) | Instance where the same conclusion (electoral roll inadmissible without source proof) was reached by a single Judge. | Mentioned as another decision consistent with the earlier Division Bench; the Full Bench answered the referred question contrary to those decisions. |
| Kewalchand v. Samirmal (A.I.R. 1953 Nag. 146) | Reference to voter list being of little evidentiary value in the context of occupation in rent-control proceedings. | The Full Bench noted that the case did not hold the voter list inadmissible under section 35 of the Evidence Act and therefore had little direct bearing on the issue before the Court. |
| Shiv Ram v. Shiv Charan Singh (A.I.R. 1964 Raj. 126) | Electoral roll treated as prima facie evidence of age/qualification and liable to be rebutted; due regard given to section 81 of the Evidence Act. | The Full Bench observed that on the facts in that case the entries were rebutted; the decision showed that electoral-roll entries are prima facie and can be displaced, but did not resolve the admissibility question now before the Full Bench. |
| Rani Lekraj Kuar v. Baboo Mahpal Singh (7 I.A. 63) | Principle that an entry made by a public officer stating a relevant fact becomes a relevant fact by force of the section. | The Full Bench relied on this principle to support the conclusion that entries in public records (such as electoral rolls) are admissible as relevant facts when made by public officers in performance of duty. |
Court's Reasoning and Analysis
The Court proceeded by a statutory and doctrinal analysis of section 35 of the Evidence Act and the provisions of the Representation of the People Act (and the Rules made thereunder). The reasoning followed these main steps, stated in the opinion:
- The Court set out the three conditions for admissibility under section 35 of the Evidence Act: (a) the entry must be in any public or other official book, register or record; (b) it must state a fact in issue or a relevant fact; and (c) it must be made by a public servant in discharge of his official duty or by any other person in performance of a duty specially enjoined by law.
-
The Court examined the Representation of the People Act (referred to as 43 of 1950 in the opinion) and the Registration of Electors Rules, 1960, to determine whether electoral rolls are prepared and maintained by public officers in performance of duties specially enjoined by law. The opinion summarizes relevant statutory provisions:
- Part III provisions establishing electoral rolls for constituencies and sections dealing with qualification, disqualification, preparation, revision and correction of rolls (sections 15–24 are described in the opinion).
- Part V provisions (section 28(2)(aa) enabling rules, section 30 ousting civil court jurisdiction over registration matters, and sections 31–32 creating offences for false declarations or dereliction in preparing rolls).
- Rules under the Act (Registration of Electors Rules, 1960) prescribing duties such as occupants' obligation to supply information, draft publication, claims and objections procedures, inquiries, corrections, final publication, appeals and annual revision (rules 8, 12–27 summarized).
- Because electoral rolls are prepared by public officers pursuant to statutory duty and maintained under the Act and Rules, the Court held that electoral rolls constitute public records made in performance of duty specially enjoined by law, thereby falling within section 35 of the Evidence Act.
- The Court further observed that an electoral roll is a public document as contemplated by section 74(1)(iii) of the Evidence Act (described in the opinion as a document forming the act of public officers). Consequently, the presumption under section 81 of the Evidence Act applies: when a public document is produced before the Court, its genuineness shall be presumed.
- Applying section 4 of the Evidence Act (which provides that when the Act directs the Court to "presume" a fact, the Court shall regard the fact as proved unless and until it is disproved), the Court concluded that when an electoral roll is produced, the Court must regard the fact entered in the roll as proved unless and until it is disproved.
- The Court considered earlier authorities that had been relied upon to oppose admissibility. It reviewed Paramananda Sahu and subsequent single-judge decisions that followed it, and distinguished other cited cases (Kewalchand and Shiv Ram) as not deciding the specific admissibility question under section 35. The Court relied on the Judicial Committee authority Rani Lekraj Kuar v. Baboo Mahpal Singh for the proposition that entries made by public officers become relevant facts by force of the statutory provision.
- On this basis the Full Bench answered the referred question in the negative (i.e., the electoral roll is admissible without calling the author or the person supplying information to the record).
Holding and Implications
Holding: The Full Bench answered the referred question as follows:
Implications (as stated in the opinion):
- The Full Bench concluded that the earlier view expressed by the Division Bench in Paramananda Sahu v. Babu Sahu and the three single-judge decisions that followed that view were not correct in holding that electoral rolls are inadmissible unless the preparer or source is examined.
- The practical consequence directed by the Court was that the First Appeal (which had prompted the reference) shall be placed before a Division Bench together with the Full Bench's opinion for disposal in accordance with law.
- The opinion establishes that electoral rolls are public documents under the Evidence Act and that, once produced, their entries are to be presumed genuine and regarded as proved unless disproved; they need not be supported by direct examination of the author or informant to be admissible.
The opinion does not set out further broader policy consequences beyond these direct effects on admissibility and the disposition directed for the pending First Appeal.
R.N Misra, J.:— When this appeal came up for disposal before a Division Bench, the admissibility of the electoral rolls prepared under the Representation of the People Act arose for consideration. A Division Bench of this Court in Paramananda Sahu v. Babu Sahu . 1970 36 C.L.T 1211., had taken the view that such electoral rolls were not admissible in evidence under section 35 of the Evidence Act. In three other oases the same view had also been taken. As the Division Bench in seisin of this First Appeal was of the view that the earlier Bench decision of this Court did not correctly decide the question, the following point has been formulated and referred for the opinion of the Full Bench under Rule 3 of Chapter V of The Orissa High Court Rules, Volume I:—
“Whether the electoral roll prepared under the Representation of the People Act is inadmissible in evidence without the author thereof and the person supplying the information being examined in the case.”
2. Section 35 of the Evidence Act Provides:—
“An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of bis official duty, or by any other person in performance of a doty, specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.”
3. To render a document admissible under this section three conditions must be satisfied: First of all the entry that is relied upon must be one in any publication or other official book, register or record; secondly it must be an entry stating a fact in issue or a relevant fact; and thirdly it must be made by a public servant in the discharge of his official duty, or by any other person in performance of the duty specially enjoined by law. Such documents have been made admissible in evidence on account of their public nature, though their authenticity be not conformed by the usual tests of truth, namely, the swearing and the cross-examination of the persons who prepared them. They are entitled to the extra-ordinary degree of confidence partly because they are required by law to be kept, partly because their contents are of public interest and notoriety but principally because they are made under the sanction of an oath of office, or at least under that of official duty by accredited agents appointed for that purpose. It has, therefore, to be first examined as to whether the electoral rolls are prepared and maintained by public officers in performance of duties specially enjoined by the law of the country. This lands to a detailed examination of the provisions of the Representation of the People Act 43 of 1950 (hereinafter referred to as the Act) and the Rules made thereunder. Part III of the Act provides for electoral rolls for assembly constituencies. By section 15 it is provided for every constituency there shall be an electoral roll. Section 16 deals with disqualifications, and a person to whom such disqualifications attach is not entitled to be registered in the roll. Section 17 bars registration of one person in more than one constituency and section 18 bars registration of one person more than once in any constituency. Section 19 provides positive qualifications for registration. Section 21 deals with preparation and revision of the electoral rolls, while section 22 deals with correction of entries in the electoral rolls. Section 23 authorises any person whose name has not been included in the roll to apply for inclusion of his name. Section 24 provides for an appeal against orders under sections 22 and 23 of the Act.
4. Part V of the Act deals with certain general provisions. Section 28(2)(aa) provides that by rules the particulars to be entered into the electoral rolls may be prescribed. Section 30 bars the jurisdiction of the civil Court in regard to the right of a person to be registered in the electoral roll. The civil Courts jurisdiction is also ousted in regard to any action taken under the provisions of the Act in the matter of preparation or revision of the roll. Section 31 makes false declarations in the matter of preparation of the electoral roll punishable, while section 32 makes dereliction in performance of official duty by those in charge of preparation of the roll punishable.
5. The Registration of Electors Rules, 1960, made by exercise of powers under section 28 of the Act make elaborate provisions for preparation and maintenance of the roll. By rule 8 duty is oast on occupants of dwelling houses to supply information. Rule 12 allows 30 days' time from the date of draft publication of the roll for lodging claims and objections. Rule 13 prescribed the form of claims and objections, and Rule 14 provides for the manner of lodging of claims and objections. Rules 15 and 16 provide the procedure before the public authorities in dealing with such claims and objection. Rule 18 authorises the registration officer to make corrections if he is satisfied about the mistake. Rule 19 provides for hearing of claims and objections when the registration officer is not able to dispose of the claim without hearing. Rule 20 deals with inquiry into claims and objections, and Rule 21 provides for a machinery for giving effect to the conclusion reached at such enquiry under Rule 20. Ultimately Rule 22 provided for final publication of the roll. Rule 23 provides for an appeal against order deciding claims and objections. Rule 24 deals with orders deciding claims and objections. Rule 25 deals with annnal revision of the rolls. Rule 26 deals with correction of entries and inclusion of names, and Rule 27 provides for farther appeal.
6. Parliament has taken great care to see that the electoral roll is properly prepared and every citizen above the age of 21 years is included in the roll of the respective constituency so that he may not be deprived of his right of franchise. Section 33 of the Representation of the People Act 43 of 1951 requires that a person whose name is not registered in the electoral roll would not be entitled to contest the election. The proviso to sub-section (4) and sub-section (5) of section 33 support this conclusion. It is, therefore, manifest that the electoral roll is a very important document in a democratic country like India. Therefore, an elaborate statutory machinery has been provided both by the Act and the Rules made thereunder to make the electoral roll to conform to the actual state of affairs. Duty is oast on a set of public officers to prepare the roll in the manner provided and to maintain it by a process of continuous annual revision in an up-to-date state.
7. It would, therefore, follow that the electoral roll is a public record made in performance of duty specially enjoined by the law and an entry made thereunder would directly come under section 35 of the Evidence Act. The electoral roll is a public document as contemplated under section 74(1)(iii) of the Evidence Act, because it is a document forming the Act of public officers. To such a public document the presumption under section 81 of the Evidence Act has application. When a public document is produced before the Court, it shall presume the genuiness of such document. Therefore, when the electoral roll which is a public document is produced before the Court, the Court is required to presume its genuineness. Section 4 of the Evidence Act dealing with “shall presume” provides,
“Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved;”
8. Therefore, when the electoral roll is produced before the Court by virtue of section 81 read with Section 4 of the Evidence Act, the Court shall regard the fact entered in the electoral roll as proved unless and until it is disproved. In Paramanda Sahu v. Babu Sahu, a Division Bench of this Court dealing with the electoral roll stated,
“In addition to the oral evidence, reliance is sought to be placed by the plaintiff on the documents marked Exts. 1, J and K. Ext. 1 purports to be a printed invitation card alleged to have been issued by defendant no. 1 on the occasion of the marriage of defendant no. 3 describing him as his youngest son. Ext. K is the voter's list prepared, in 1958 of the ward in which the parties reside wherein the father's name of plaintiff and defendant no. 3 is mentioned as Babu, i.e, defendant no. 1. No evidence has been adduced to show that Ext. 1 was actually got printed by defendant no. 1 or in his instructions defendant no. 3 was described as the youngest son. So also, there is no evidence to show on whose information the father's name of plaintiff in Ext K was mentioned as Babu. Neither the person who prepared Ext. K nor the person who printed Ext. 1 has been examined in the suit in these circumstances reliance cannot be placed on Ext. 1 and K as affording proof of the relationship claimed by the plaintiff with defendant no. 1.”
9. Soon after this judgment was pronounced I had occasion to deal with the question of admissibility of the electoral roll in the case of Nukuni Dibya v. Harekrishna Satpathy . S.A No. 574 of 1966 — D/24-8-1970., in Second Appeal no. 574 of 1966 disposed of on 24-8-1970 and in the case of Musi Bewa v. Raghunath Das . S.A No. 636 of 1966 — D/1-9-1970., in Second Appeal no. 636 of 1966 disposed of on 1-9-1970. Following the aforesaid Division Bench decision in regard to the admissibility of the electoral roll I also held that the electoral roll was not admissible in evidence unless there was evidence to show the source of information leading to the preparation of the electoral roll or the person who prepared the electoral roll was examined. In to be case of Subi Bewa v. Gurubari Rana . A.I.R 1971 Orissa 299. I also came to the same conclusion.
10. This question does not seem to have been directly decided in any other Court. Two instances where reference was made to the electoral roll as a piece of evidence were placed before us by Mr. Mohanti for the appellant. The first one is the case of Kewalchand v. Samirmal . A.I.R 1953 Nag. 146.. The Court was dealing with a dispute under the C.P and Berar Letting of Houses and Rent Control Order, 1949. A dispute was raised on the plea that the Rent Controller had exercised jurisdiction improperly in fixing the fair rent of the premises as the tenant was not in occupation thereof. The Court looked into the municipal assessment records to find out who was in occupation of the particular house. Reliance was placed on the voter's list by one of the parties. Dealing with that matter it was said,
“This position is fortified by the evidence of Kanhaiyalal recorded by the Rent Controller and this is not displaced by the production of the Voter's List which shows the premises as No. 148/2, because the Voter's List has practically no evidentiary value.”
11. Their Lordships did not hold that it was not admissible under section 35 of the Evidence Act. Juxtaposed with other evidence their Lordships were not prepared to attach probative value to the contents of the document. This decision, therefore, has realy no light to throw on the point now in issue. The other case is Shiv Ram… v. Shiv Charan Singh…. . A.I.R 1964 Raj. 126.. The dispute was raised as to whether a candidate had the requisite age qualification which under Article 173 of the Constitution is provided to be 25. The electoral roll was relied upon to substantiate the evidence of age. For reasons indicated in paragraph 44 of the judgment their Lordships were not inclined to attach finality to the entry and said,
“As we have already pointed out above, no finality can attach to these entries as regards the qualifying age of a candidate at an election and they are at best a piece of prima facie evidence which are liable to be rebutted. Having regard to the evidence led on the opposite side, we are definitely in agreement with the Election Tribunal that these entries have been successfully rebutted in the present case.”
12. Thus, the electoral roll was found admissible under section 25 of the Evidence Act and due regard was also given to section 81 of that Act. On the facts of the case the Court came to hold that the fact contained in the document had been disapproved. This decision also is not material for the present purpose.
13. The electoral roll being a public document is admissible in evidence and it is not necessary to prove the source of information on the basis whereof the facts stated in the roll were recorded, nor is it necessary that the person who prepared the electoral roll has to be examined in Court to prove the roll. As a public document it is admissible under the provisions of the Evidence Act. As was indicated by the Judicial Committee in Rani Lekraj Kuar v. Baboo Mahpal Singh . 7 I.A 63..
“The entry having stated that relevant fact, the entry itself becomes by force of the section a relevant fact; that is to say, it may be given in evidence as a relevant fact, because, being made by a public officer, it contains an entry of a fact which is relevant.”
14. We would accordingly answer the question referred to us thus:—
“The electoral roll prepared under the Representation of the People Act is admissible in evidence without the author thereof and the person supplying the information being examined in the case.”
15. It would, therefore, follow that the view expressed by the Division Bench in Paramananda Sahu v. Babu Sahu, and the three other cases already referred to by a single Judge in this Court with reference to the admissibility of the electoral roll was not correct. The First Appeal shall now be placed before a Division Bench together with our opinion on the question referred to us, for disposal in accordance with law.
G.K Misra, C.J:— I agree.
B.K Patra, J.:— I agree.
16. Ordered accordingly.
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