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Sethi Roop Lal v. Malti Thapar (Mrs) And Others
Factual and Procedural Background
The appellant and four respondents contested the election to the 99-Moga Assembly Constituency held on 19 February 1992. Respondent 1 was declared elected, defeating the appellant by a margin of seven votes. The appellant thereafter filed Election Petition No. 5 of 1992 before the Punjab & Haryana High Court, alleging several grounds of challenge, including that twenty-two bogus votes of dead electors were cast in favour of Respondent 1 (para 18 of the petition).
During trial the appellant applied for production of (i) Form 16 (Ballot-Paper Accounts) for booths 1–125 and (ii) the marked copies of the electoral roll for booths 8, 35, 44, 56 and 57. By order dated 2 November 1992 the learned trial Judge allowed production of Form 16 but refused production of the marked copies. Subsequently, on 4 January 1993, the appellant sought to amend the election petition; this application was dismissed by order dated 28 May 1993.
The Supreme Court granted special leave and heard appeals challenging the two High Court orders.
Legal Issues Presented
- Whether the marked copies of the electoral roll, falling under Rule 93(1)(d) of the Conduct of Elections Rules, 1961, could be directed to be produced without violating the secrecy of the ballot and whether the appellant had made out a prima facie case for their production.
- Whether the High Court erred in refusing the appellant’s application to amend the election petition by wrongly treating the proposed amendments as introducing “material facts” of a corrupt practice, thereby invoking the bar in Section 86(5) of the Representation of the People Act, 1951, instead of applying the general power of amendment under Section 87 and Order VI Rule 17 of the Code of Civil Procedure.
Arguments of the Parties
Appellant's Arguments
- Votes were fraudulently cast in the names of 22 deceased electors; production of the marked copies of the electoral roll was essential to establish this allegation.
- The proposed amendments did not introduce a new corrupt practice but merely clarified existing pleadings; hence the limitations of Section 86(5) were inapplicable.
Respondent / Trial Judge’s Reasoning Opposed by Appellant
- Production of the marked copies was barred under Rule 93(1)(d) to protect the secrecy of the ballot.
- No sufficient prima facie case had been shown to warrant summoning the marked copies.
- The amendment sought to add “material facts” of a corrupt practice and was therefore impermissible after the period of limitation, relying on F.A. Sapa v. Singora.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| F.A. Sapa v. Singora, (1991) 3 SCC 375 | Distinction between “material facts” and “particulars” in election petitions; limitations on amendment under Section 86(5) of the Representation of the People Act, 1951. | The trial Judge had relied on this case to reject the amendment. The Supreme Court observed that the precedent governs amendments relating to corrupt practices; since the proposed amendments did not pertain to corrupt practice, the High Court misapplied the ruling. |
Court's Reasoning and Analysis
Production of Marked Copies: The Supreme Court noted that Rule 93(1) merely requires an order of a competent court for production of documents in its sub-clauses, including marked copies of the electoral roll in clause (d). Referring to the Election Commission’s Handbook, the Court explained that the marked copy is used only for voter identification; its production would not compromise voter secrecy. Moreover, the appellant had already adduced evidence from polling agents and produced their own copies of the rolls, establishing a prima facie case. Consequently, both grounds relied upon by the High Court—secrecy and absence of prima facie case—were unsustainable.
Amendment of the Petition: Under Section 87 of the Act, read with Order VI Rule 17 CPC, courts possess broad powers to allow amendments necessary for determining the real controversy. These powers are curtailed only when Section 86(5) (corrupt practice amendments) applies. The Supreme Court found that the proposed amendments did not introduce a new corrupt practice; hence Section 86(5) was irrelevant. The High Court’s reliance on F.A. Sapa was therefore misplaced, and its refusal to entertain the amendment was erroneous.
Holding and Implications
Appeals ALLOWED; impugned orders dated 2 November 1992 and 28 May 1993 are SET ASIDE.
The High Court is directed to (i) order production of the marked copies of the electoral roll for the specified booths and (ii) reconsider the amendment application on its merits. No order as to costs was made.
Implications are confined to the parties: the appellant gains access to crucial electoral documents and an opportunity to amend the pleadings. The judgment clarifies that production of marked electoral rolls does not inherently violate ballot secrecy and that amendments unrelated to corrupt practices remain governed by the liberal standard of Order VI Rule 17 CPC.
M.K Mukherjee, J.— Special leave granted in both the petitions.
2. In 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:
3. The appellant and the four respondents herein contested the election of 99 Moga Assembly Constituency polling for which took place on February 19, 1992. When the results were declared it was found that Respondent 1 had secured the highest number of votes — and thereby won the election — followed by the appellant, who secured 7 votes less than her, and the other respondents. The appellant then filed the election petition assailing the election on various grounds as detailed therein. The ground, which is relevant for our present purposes, finds place in paragraph 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 1 at the instance of Respondent 1 and her supporters. The relevant details of these dead electors is annexed along with as Annexure P-9.”
4. In course of the trial that followed the appellant examined himself to substantiate the allegations made by him in the petition and thereafter 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 roll 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, 1993 the appellant filed an application praying for amendment of the Election Petition which was rejected by the other impugned order.
5. In rejecting the prayer of the appellant for production of the marked copy of the electoral roll the learned Judge first observed that as that document was included in sub-clause (d) of Rule 93(1) of the Conduct of Elections Rules, 1961 (‘Elections Rules’ for short) it should not be 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 materials on record in the light of the relevant rules and circulars we are unable to sustain either of the above grounds.
6. Rule 93(1) of the Elections 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 documents referred to in clause (d) of the above rule include the packets of the marked copy of the electoral roll.
7. The manner in which the marked copy of the electoral roll is to be maintained is provided for in Chapter V of the official handbook issued by the Election Commission of India for use of its officers during election. It is provided therein that as soon as an elector enters the polling station he has to proceed directly to the First Polling Officer who is to be in charge of the marked copy of the electoral roll and responsible for the identification 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 relevant entry in 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 agents and the Second Polling Officer. If there is no challenge as regards the identity of the elector he is required to underline in every case the entry relating to the elector in the marked copy of the electoral roll with him and where the elector is a female to put a (√) 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 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 impair the secrecy of the voters.
8. The other observation of the learned trial Judge that no case was made out for summoning the marked copy of the electoral roll is also not 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 but also examined his polling agents of the respective booths wherein, according to him, false votes have been cast. Besides, he has exhibited the electoral roll 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 facie case for production of the marked copy of the electoral roll of the five booths referred to in his application.
9. 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 drew sustenance from the following observations made by this Court in the case of F.A Sapa v. Singora (1991) 3 SCC 375:
“(i) Our election law is statutory in character as distinguished from common law and it must be strictly complied with.
(ii) There is a clear and vital distinction between ‘material facts’ 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 in the petitions to be amended or amplified provided the amendment 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’.”
10. The fasciculus of sections appearing in Chapter III of Part VI of the Act lays 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 the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure (‘Code’ for short). That 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 Rule 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 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 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.
11. Indubitably, therefore, if the amendment sought for in the instant case related to corrupt practice we might have to consider the same in conformity with Section 86(5) of the Act as interpreted by this Court in the case of F.A Sapa (1991) 3 SCC 375 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 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.
12. We, therefore, allow these appeals and set aside the impugned orders dated November 2, 1992 and May 28, 1993. The learned Judge will now issue necessary directions for production of the marked copy of the electoral roll as prayed for by the appellant and also dispose of the amendment application on its merits. However, there will be no order as to costs.
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