PETITIONER: A. NEELALOHITHADASAN NADAR Vs. RESPONDENT: GEORGE MASCRENE DATE OF JUDGMENT11/04/1994 BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. AHMADI, A.M. (J) RAMASWAMY, K. CITATION: 1994 SCC Supl. (2) 619 JT 1994 (3) 181 1994 SCALE (2)522 ACT: HEADNOTE: JUDGMENT:
ORDER
28. For the reasons given by the majority (R.M. Sahai, J.
dissenting and S.P. Bharucha, J. with whom N. Venkatachala,
J. has agreed) the appeal is allowed and the judgment and
order under appeal is set aside. The writ petition filed by
the respondent is allowed only to the extent that it is
declared the instruments executed by them in Form VI of the
Distillery and Warehouse Rules made under the provisions of
the Kerala Abkari Act shall be liable to stamp duty under
Article 32 of the Schedule to the Kerala Stamp Act. There
shall be no order as to costs.
29. We are informed that the respondent in pursuance of the
interim order passed by the High Court had paid duty on the
document to the State Government as one payable under
Article 13 of the Schedule to the Kerala Stamp Act. Since
we have held that the document was only indemnity bond, the
amount of duty payable by the respondent was much less than
what was paid by it. In the circumstances, the appellant is
directed to refund the excess amount, if any, paid by the
respondent. The amount shall be refunded, as requested by
the learned counsel for the State, within three months from
today.
623
A. NEELALOHITHADSAN NADAR V. GEORGE MASCRENE (Punchhi, J.)
The Judgment of the Court was delivered by
PUNCHHI, J.- Two principles of election law stand, as
always, in competition; one being “purity of elections” and
the other being “secrecy of ballot”. On the basis of the
former, the Kerala High Court has upset the election of the
appellant herein. Challenge to the order of the High Court
is on the anvil of the latter principle.
2. The appellant and the first respondent were contesting
candidates for the Kovalam Assembly Seat No. 138 in the
State of Kerala. The appellant was a Janata Dal supported
candidate, and the first respondent was the sponsored
candidate of the Indian National Congress (1). Candidates
of other political parties though being in the fray get no
significance insofar as the present matter is concerned.
Polling took place on 12-6-1991. Counting took place on 16-
61991. The Assistant Returning Officer who supervised the
counting announced the number of votes polled by the
appellant as 49,516 and the first respondent as 49,500.
There was a demand of recount which was conceded to by the
Assistant Returning Officer. The final result thereafter
showed that the appellant had received 49,515 votes and the
first respondent 49,494 votes. Since the appellant had
obtained 21 votes in excess of the first respondent he was
declared elected from the Constituency. The requisite
declaration under Section 66 of the Representation of the
People Act, 1951 (hereafter referred to as the ‘Act’) was
made on 17-6-1991.
3. An election petition was moved by the first respondent.
The claim of the election petitioner was that he had
obtained more valid votes than the appellant and was
therefore entitled to be declared elected instead of the
appellant for reasons stated in the election petition. In
paragraph 5-A of the election petition, it was asserted that
several voters, whose names had wrongly and accidentally
been included in the electoral rolls of more than one
polling stations in the Constituency had dishonestly voted
in the election in both the polling stations taking undue
advantage of the double inclusion of their names. It was
suggested that this had obviously been done by erasing the
ink-mark on the little finger of the voters in order that at
the polling station where they voted the second time,
neither the polling staff nor the polling agents could
become aware of the fraud. The election petitioner further
asserted that he had ascertained the names, roll numbers and
other details of 19 voters and the polling stations in which
they had voted, necessary details of which were furnished in
Annexures 1 and 1-A to the election petition. It was
pleaded that all the 19 persons had voted twice and,
according to Section 62(4) of the Act, both the votes polled
were void. Further, those 19 persons had voted for the
appellant. He therefore suggested that it was necessary to
pick out the votes cast by those persons and eliminate them
from consideration, ejectable as they were under Section
62(4) of the Act. It was also asserted that if any one or
more of these voters claim and prove that their votes at one
of the polling stations had been validly cast, it would then
be obvious that the vote in ‘the other polling station was
cast by an impersonator and hence void and would be liable
to be rejected. The petition is supported by
624
an affidavit in accordance with Rule 94-A of the Statutory
Election Rules. Annexures 1 and 1-A are part and parcel of
the petition.
4. The allegations in the election petition on this score
were obviously denied by the appellant. Rather a
recrimination petition was filed by the appellant to suggest
similar void voting pertaining to other votes, which votes
were alleged to have gone to the election petitioner. Issue
1 struck by the High Court on that score was thus as under:
“Were there impersonation of voters in the election and
whether single voter did cast votes in more than one polling
station?”
The High Court on examining the evidence led by the parties
on the issue found that ballot papers enumerated in
paragraph 67 of its judgment deserved being picked out from
the respective ballot boxes to be rejected as void. The
ministerial work for the purpose was assigned to the Joint
Registrar of the High Court. It was ordered that the above
votes be deducted from the total votes polled by the
respective candidates. Time allotted for the purpose was
five days. Inspection was to be done in the presence of
counsel representing the election petitioner and the elected
candidate. Issue 1 was to be found in the above terms.
5. As directed by the High Court the Joint Registrar
picked out 52 ballot papers which were declared as void.
Out of those 48 were cast in favour of the elected candidate
and 4 in favour of the election petitioner. Since the
Returning Officer had announced the elected candidate to
have secured 49,515 votes, 48 void votes therefrom had to be
deducted and as a consequence the appellant was found to
have secured a total of 49,467 votes. Correspondingly in
case of the election petitioner, the total votes polled, as
announced, being 49,494, subtracting 4 void votes therefrom
brought the figure down to 49,490. So the result recorded
was that the first respondent, had secured 49,490 votes. On
such result the election petitioner entitled himself to be
declared elected instead of the appellant.
6. Now the understanding of the High Court has been that
in accordance with Section 17 of the Act, no person is
entitled to be registered in the electoral roll for more
than one constituency. Section 18 further mandates that no
person shall be entitled to be registered in the electoral
roll in any constituency more than once. Subject to the
exercise of correction in the electoral rolls by the
procedure prescribed, once the final electoral roll is
published and the elections held on the basis thereof, it is
not open to anyone to challenge the election from any
constituency on the ground of defect in electoral rolls. If
an elector has been registered in the electoral rolls of the
constituency for more than once, this may enable him to
exercise his votes in more than one polling stations. He is
capable of presenting himself in the two respective polling
stations without his identity being questioned. Possibility
however, though remote, cannot be ruled out that he may be
challenged when exercising his vote at the second polling
station if someone thereat, be he the election agent or any
other person, could successfully point out that he had voted
in another polling station. Normally, such an incidence
would be rare because of the gigantic task involved in an
election. That such a situation of double registration is
possible and capable of misuse was pertinently conceived of
by the legislature. Therefore Section 62 of the Act was
made specifically to provide that every person who is for
the time being entered in the electoral roll of any
constituency shall be entitled to vote in that constituency.
Sub-section (3) of that section provided that no person
shall
625
vote at a general election in more than one constituency of
the same class and if he votes in more than one such
constituency, his vote in all such constituencies shall be
void. Further sub-section (4) of Section 62 also provided
that no person shall at any election vote in the same
constituency more than once, notwithstanding that his name
stood registered in the electoral roll of that constituency
for more than once. And if he does vote more than once, all
his votes in the constituency shall be void. It is on the
strength of Section 62(4) of the Act that the High Court
allowed the election petition on the principle of “purity of
elections” by undertaking the exercise to cull out void
votes irrespective of the choice of voting. The evident
thrust thus has been to put such purity in a dominating
position even if the secrecy of ballot got some bruises
incidentally. The approach of the High Court on that score
was under a major attack by Mr Prashant Bhushan, learned
counsel for the appellant.
7. Significantly, as hinted earlier, the appellant had
filed a recriminatory petition making inter alia similar
allegations of double voting of other instances. This was
the reason why the High Court proceeded on the footing, as
is reflective from paragraph 9 of the judgment under appeal,
that both contesting parties had come forward with the
common allegation that in various sectors of the
constituency, some voters had exercised votes more than once
and those votes had to be traced and rejected as void votes.
It had then to be seen whether the total had gone to
materially affect the result of the election. The result of
the election as aforenarrated had provided sufficient ground
to declare it void. The High Court then made a common
observation, “so it is to be examined whether the electors
mentioned by the petitioner and the first respondent have
exercised votes more than once in the last General Elections
to the Kerala Legislative Assembly”. It would, in these
circumstances, be legitimate to assume that both the
contestants had bowed to the principle embodied in Section
64(4) of the Act for the sake of “purity of elections”
principle and were willing partners to have the void element
identified and extricated from the voted lot.
8. It is therefore unnecessary to burden this judgment
with the details of oral evidence of each and every witness
on the point examined by the respective parties. Discussion
thereon in detail is available in paragraphs 10 to 67 of the
judgment under appeal. Three broad features however are
evident as emerging from the appreciation of evidence by the
High Court:
(i) In cases of double registration of votes
the exercise by one and the same person of
both votes at two different polling stations,
led the High Court to reject both votes;
(ii) In cases of double registration of
votes, in which one vote was validly cast by
one and the same person in some polling
station and the other by some impersonator,
the High Court declared void the vote cast by
the impersonator; and
(iii) The Court exercised its powers under
Section 73 of the Evidence Act in comparing
the admitted and proved handwriting of the
voter with the disputed ones to come to the
conclusion whether a particular voter had
voted twice or just once. The signatures on
the counterfoils of the ballot papers obtained
at one. polling station were compared with the
signatures on the counterfoils of ballot
papers obtained at the other; the Court
holding whether they did or did not tally.
626
9. Pursuant to such approach the High Court located the
void votes in order to throw them away tracing them to the
contents of the related voting, which according to Mr
Prashant Bhushan, was breach of the “secrecy of ballot”
principle. He pressed for the primacy of the principle into
service by citing some precedents.
10. The existence of the principle of “secrecy of ballot”
cannot be denied. It undoubtedly is an indispensable
adjunct of free and fair elections. The Act statutorily
assures a voter that he would not be compelled by any
authority to disclose as to for whom he has voted, so that
he may vote without fear or favour and free from any
apprehension of its disclosure against his will from his own
lips. See in this connection Raghbir Singh Gill v.
Gurcharan Singh Tohral. But this right of the voter is not
absolute. It must yield to the principle of “purity of
election” in larger public interest. The exercise of
extrication of void votes under Section 62(4) of the Act
would not in any manner impinge on the secrecy of ballot
especially when void votes are those which have to be
treated as no votes at all. “Secrecy of ballot” principle
presupposes a validly cast vote, the sanctity and
sacrosanctity of which must in all events be preserved.
When it is talked of ensuring free and fair elections it is
meant elections held on the fundamental foundation of purity
and the “secrecy of ballot” as an allied vital principle.
It was observed by this Court in Raghbir Singh case’ as
follows (SCR p. 1320: SCC p. 68, para 23)
“Secrecy of ballot though undoubtedly a vital
principle for ensuring free and fair
elections, it was enshrined in law to subserve
the larger public interest, namely, purity of
election for ensuring free and fair election.
The principle of secrecy of ballot cannot
stand aloof or in isolation and in
confrontation to the foundation of free and
fair elections, viz., purity of election.
They can coexist but as stated earlier, where
one is used to destroy the other, the first
one must yield to principle of purity of
election in larger public interest. In fact
secrecy of ballot, a privilege of the voter,
is not inviolable and may be waived by him as
a responsible citizen of this country to
ensure free and fair election and to unravel
foul play.”
11. In view of the above it is the settled position that
out of the two competing principles, the purity of election
principle must have its way. Section 94 of the Act cannot
be pressed into service to suppress a wrong coming to light
and to protect a fraud on the election process.
12. That both the election petition and recrimination
petition were dealt with on the principle of “purity of
election” is not in dispute. The approach of the High Court
on the subject on the commonality of the attack also cannot
be questioned. But what was questioned by Mr Prashant
Bhushan, as reiterated in his written submissions of 14-9-
1993, was that the High Court was not correct in allowing
examination of marked copies of electoral rolls and
counterfoils without any evidence or material in support of
the plea for inspection and that the High Court allowed the
inspection casually without inviting a written application
or even by a written order. It was submitted that except
for pleadings in the election petition regarding void
voting, there was no cause pleaded to permit the election
papers to be thrown open for inspection and this exercise
was termed by learned counsel as ‘fishing or roving’. Rule
93 of the Conduct of Election Rules, 1961, provides for
documents which shall not be
1 1980 Supp SCC 53 :(1980) 3 SCR 1302
627
opened and their Contents inspected by, or produced before,
any person or authority except under the orders of a
competent court. On the basis thereof it was maintained
that by a string of judgments of this Court it has been
ruled that inspection could only be allowed when two
conditions are satisfied:
1. The material facts on the basis of which
inspection of documents is sought, must be
clearly and specifically pleaded; and
2. The Court must be satisfied on evidence,
even if in the form of
Support for these principles was sought from
Ram Sewak Yadav v. Hussain Kamil Kidwai2,
Hariram v. Hira Singh3, R. Narayanan v. S.
Semmalai4, Jagjit Singh v. Giani Kartar
Singh5, Jitendra Bahadur Singh v. Krishna
Behari6 and other decisions of the like.
13. But by and large these are cases where there was a
claim for recount. In contrast the instant case is of
double voting which has specifically been pleaded in the
election petition filed on 29-7-1991 supported by affidavit
and the names of the voters have been supplied in the lists
annexed thereto. The appellant had filed recrimination
petition pleading that there were several other cases of
double voting and reception of invalid votes in favour of
the election petitioner. This written statement-cum-
recrimination petition was filed on 10-9-1991. Issues were
framed on 20-9-1991. The election petitioner on 26-9-1991
was allowed to amend the Election Petition so as to include
10 more cases of double voting. The corresponding amendment
application filed by the appellant for taking into account
details of double voting having taken place in another
neighbouring constituency was rejected by the High Court for
it was based on a new charge. The second amendment
application of the election petitioner was allowed on 7-10-
1991 so as to include 23 more cases of alleged double
voting. It is at that stage that is on 7-10-1991 that the
Court permitted inspection of the counterfoils since several
double voters had been summoned for the following day to
appear on 8-10-1991 and subsequent days, on the oral
prayer/application of both the election petitioner and the
appellant. The court apparently took into account that
since witnesses were to be examined on the question of their
double voting and were expected to take a positive stand, it
would become necessary to corroborate or confront them with
the counterfoils of the ballot papers issued to them which
purported to have been signed or not by them, in order to
save time lest examination of the witnesses be time
consuming. The Court allowed inspection of the roll and
counterfoils in order to facilitate evidence of the
witnesses on the date of their appearance, which was the
following day. The suggestion no doubt was oral but the
Court seemed to agree with the suggestion and inspection was
permitted to both parties in the presence of the Registrar.
The commonality of the approach of the parties on the
question of double voting must have clearly goaded the Court
to adopt such measure to facilitate quick trial. It is the
case of the election petitioner that the counsel for both
the parties inspected the counterfoils on 7-10-1991 in the
2 (1964) 6 SCR 238, 247-50: AIR 1964 SC 1249 : 26 ELR 14
3 (1984) 2 SCC 36: (1984) 1 SCR 932, 937
4 (1980) 2 SCC 537
5 AIR 1966 SC 773, 783 (para 31): 28 ELR 81
6 (1969) 2 SCC 433, 436 (para 7) : (1970) 1 SCR 852, 856-
885
628
Registrar’s room as also on subsequent days, even though
there was no written application made and there was no
formal written order of the Court. Yet the inspection was
open to both the parties without any objection having ever
been raised by the appellant. In the facts and
circumstances, we fail to see how the principle of secrecy
of ballot can be imported to question the power of the Court
to orally allow inspection in its endeavour to eliminate the
impurity in elections, the opportunity provided having been
availed of without demur by both parties. In this
situation, it is difficult for us to digest the argument
that here the High Court proceeded to allow inspection
without being satisfied on evidence, even in the form of
affidavit, that it was necessary to allow inspection in the
interest of justice. Since the names of the voters who were
alleged to have double voted, had specifically been pleaded
in the election petition (as amended from time to time) and
the recrimination petition, it was necessary to correlate
their names with the electoral rolls and the counterfoils of
the ballot papers so that in case of double voting or
impersonated voting, the impure element in the election
process could be identified and retrieved from the election
package. The primary purpose thus was to purify the
electoral process and not to hunt or hound the voter’s
choice, when exercised validly and freely. It is for that
purpose that the Court, in the interest of justice, to
facilitate a quick trial permitted the parties to inspect
beforehand the records but after the framing of the
requisite issues arising from the pleadings of the parties
and not earlier. This approach could not be termed as
permitting a ‘roving or fishing’ enquiry, as it is sometimes
described in cases of a claim for re-count. We are thus of
the view that the High Court committed no error in
permitting such inspection in the facts and circumstances.
We must, however, hasten to clarify that we should not be
understood to approve of the High Court giving oral
directions in such serious matters without insisting on a
formal application setting out how a prima facie foundation
was laid for the grant of such relief.
14. Another argument put forth by Mr Prashant Bhushan was
that the pleadings in the election petition were
insufficient to justify inspection inasmuch as except for
mentioning that there had been double voting by 19 persons
nothing else was stated about the basis on which the
election petitioner came to the conclusion that these names,
which apparently had appeared twice in the electoral roll,
belonged to one and the same person and that those persons
had in fact voted twice. It was also commented that no
material facts, in the form of affidavits by single persons
or polling agents alleging that they had seen and heard
about those persons having voted twice. was filed in support
of the petition. It is maintained that in the absence of
evidence of these particulars being pleaded as to the source
of knowledge of double voting it was dangerous to allow
enquiring into such an allegation on the bare allegation of
double registration of votes and possible double voting. We
have pondered over this matter but regretfully do not accept
the argument of the learned counsel. If a name has been
registered twice enabling a person to take the advantage of
voting in two different polling stations, Section 62
mandates that if he polls both these votes then both votes
are void. A void vote cast is a vote void ab initio. In
the nature of things the void taint in the election would
have to be traced to the election papers for without that
bare oral evidence would be of no use, and at best would be
word against word, making application of Section 62(4)
welling impossible. If the election petitioner on some
information, material or otherwise
629
is able to entertain the belief that a particular voter,
double registered, is known to have voted twice, he can
certainly plead to that fact on his own entertained belief
and need not ordinarily resort to giving details of the
sources of his information or knowledge or the entertainment
of his belief because registration of double vote is by
itself the starting point; the exercise of both votes being
the second. The election petitioner had specifically
mentioned and in clear-cut terms that 19 persons had double
voted. The question was not resoluble merely on oral
evidence, whether they had or had not, except to put those
persons into the witness box, hear their version and
confront them with the election papers. The sphere of
enquiry at that stage is to the voting and not for
discovering the name of the person to whom the vote was
cast. That inevitably has to be found out after double
voting or impersonated voting has been found out leading to
the new step to trace them and nullify them. On the
pleading of the parties as such, on both sides, a case for
inspection at the stage when it was done had been made out.
We thus find no error committed in the approach of the High
Court.
15. In the matter of correlation and employment of Section
73 of the Evidence Act, the High Court took support from a
decision of this Court in Fakhruddin v. State of Mp.7 The
High Court justified its step of comparison in paragraph 13
of the judgment under appeal as follows:
“Learned counsel representing the first
respondent raised a contention that this Court
should not take the part of an expert in
handwriting to compare the signatures of
witnesses to find out whether they were
signatures of the same person. According to
counsel, the disputed signatures should be
sent to experts for their opinion. In the
alternative it is contended that petitioner
should examine persons familiar with the
signature of the witnesses to establish the
identity of signatures. Handwriting may be
proved on admission of the writer or by the
evidence of some witness in whose presence it
was written. This is direct evidence. In the
absence of such direct evidence, opinion of
handwriting expert or of some who is familiar
with the writing of the person is relevant.
Thus besides direct evidence which of course
is the best method of proof, the law makes two
other modes also as relevant, i.e., a writing
may be proved to be the handwriting of a
particular individual by the evidence of a
person familiar with the handwriting of that
individual or by the testimony of an expert
competent to compare the handwritings on a
scientific basis. A third method is also
provided by the Evidence Act in Section 73.
It is comparison by the court with the writing
made in the presence of the court or admitted
or proved to be the writing of the person.
The Court can apply its own observation to the
admitted or proved writings and to compare
them with the disputed one. This comparison
depends on an analysis of the characteristics
in the admitted or proved writings and of the
same characteristics in large measure in the
disputed writing. Even if there is the
opinion of the expert on the handwriting, it
is subjected to the scrutiny by court. The
expert’s opinion is not the final word. The
court must see for itself whether it can
safely be held that the two writings are of
the same person. To this extent, court may
play the role of an expert. The court can
accept the disputed signature to be that of
the witness when it is satisfied on its
observation that it is safe to accept the
same. In this view, I do not think it
necessary to have the admitted signature of
the witness to be compared with the signature
in the
7 AIR 1967 SC 1326: 1967 Cri LJ 1197
630
disputed counterfoils of the ballot paper by
any expert. This Court can scrutinise the
characteristics of the signatures. If it
finds that the disputed signature has the same
characteristics in large measure with the
admitted signature, it can safely come to the
conclusion that both are of the same person.”
The High Court finally recorded its satisfaction or
otherwise in the case of signatures resulting in double
voting and impersonation, and signatures and thumb
impression not tallying at all. No meaningful argument on
facts in regard thereto was addressed before us except to
the approach of employing Section 73 of the Evidence Act.
It was urged that the High Court should not have become an
expert. We, however, are of the view that when larger
public interest is served by expeditious disposal of an
election petition, then the course adopted by the High
Court, as suggested from the afore-extraction, is in
conformity therewith. Although courts should be slow in
resorting to this method, we do not find it faulted, more so
when the courts resort to exercise of such power is approved
in two other cases of this Court in State (Delhi
Administration) v. Pali Ram8 and Murari Lal v. State of
M.P.9 As a sequitur the finding recorded by the High Court
on issue 1 is perfectly sound.
16.The affirmed finding on issue 1 alone is enough to
dismiss the appeal. The related issues 6 and 7 also go in
favour of the election petitioner. These issues were to the
effect that “Is the election of the first respondent
(appellant herein) liable to be declared void for all or any
of the reasons mentioned in the petition.” Further “Is the
petitioner entitled to a declaration that he is duly elected
from No. 138, Kovalam Legislative Assembly.” Since the final
result approved by the High Court on this particular point
is that 48 void votes had to be deducted, as found on issue
1, holding that the appellant secured 49,467 votes only, and
the election petitioner 49,490. There is thus a margin of
23 votes materially affecting the result of the election.
This finding alone is enough to reject the appeal, though
the High Court has not based its decision alone on the basis
thereon.
17.On issues 2 and 3 which were to the effect as to whether
there was any illegality in the issue and counting of postal
ballot papers and further was any valid vote rejected as
invalid and invalid vote accepted as valid, the ultimate
finding of the High Court was that 20 votes had invalidly
been rejected and out of those 10 had been cast in favour of
the election petitioner and 10 in favour of the appellant.
So that made them even. The result thus came to be finally
resting on issue 1 whereunder 23 votes were found to have
been polled in favour of the election petitioner more than
the appellant. With this result the High Court rightly
allowed the election petition declaring the election
petitioner-first respondent as the duly elected member of
Kerala Legislative Assembly instead of the appellant,
setting aside the election of the latter.
18. As a result of the above discussion, this appeal fails
and is hereby dismissed. No costs.
8 (1979) 2 SCC 158 : 1979 SCC (Cri) 389: (1979) 1 SCR 931
9 (1980) 1 SCC 704: 1980 SCC (Cri) 330: (1980) 2 SCR 249
631