Dr. Khwairakpam Loken Singh vs Rajkumar Imo Singh And Others

Kh. Nobin Singh, J

[1] Heard Shri A.C Borbora, Senior Advocate assisted by Shri S. Biswajit Meitei, Advocate and Shri S. Lokhendro, Advocate appearing for the applicant/ petitioner and Shri H.S. Paonam, Senior Advocate assisted by Shri N. Bipin, Advocate appearing for the respondent No.1.

[2.1] The instant application has been filed by the applicant/ petitioner praying for calling the documents mentioned in Schedule-I & II annexed thereto from the respective authorities indicated in the schedule and on receipt of the documents, to take certified copies thereof. The grounds on which the application has been filed, are inter-alia that for the trial of the election petition, it is necessary to call for the documents mentioned in the schedule annexed thereto; that these documents would be required for the purpose of adjudication of the case; that the documents which are to be called for, have been mentioned in the election petition and specific averments have been made in respect thereof in para 35 of the petition and that the certified copies of the documents are necessary to effectively prove his case.

[2.2] A written objection has been filed by the respondent No.1 contending inter-alia that the calling for documents as prayed for by the applicant/ petitioner is not permissible under any law governing the field; that the statement made in the application has exposed the true nature of the election petitioner trying to have a roving enquiry to find some irregularity; that the applicant/ petitioner is trying to correct the prayer (i) of the election petition by way of this application which is an ill-design to amend the petition and to cure the defect crept therein and that the prayer of the election petition is itself the living testimony of 360 degree roving and fishing enquiry without any specific allegation of any commission or omission of irregularity

[3] At the time of hearing, it has been contended by the learned senior counsel appearing for the applicant/ petitioner, Shri A.C Borbora that this Court has the power to call for all these documents under Section 87 of the Representation of People Act, 1951 (hereinafter referred to as "the RP Act, 1951") read with Order VII Rule 14 of the CPC. While moving such an application, it is not necessary that the provision under which it has been filed, shall be mentioned and even the wrong quoting of any provision does not debar the court from exercising its power. Combating the aforesaid contentions and in addition to what has been stated in the written objection, Shri H.S. Paonam, the learned senior counsel appearing for the respondent No.1 has submitted that there is no provision under the RP Act for filing such an application nor can the provisions of CPC be applied in all cases and the application is misconceived because the actions of the Returning Officer shall be deemed to have completed in accordance with law. Although the agents of the applicant/ petitioner were present at the time of counting postal ballot papers, no objection was raised by any of them and therefore, the application is nothing but an attempt to roving and fishing evidence.

[4] Considering the submissions made by the counsels appearing for the parties and in order to appreciate their submissions, it becomes necessary and appropriate for this Court to examine the provisions of Section 87 of the RP Act, 1951 and Order VII Rule 14 of CPC which read as under:

"Section 87. Procedure before the High Court:-

(1) 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, 1908(5 of 1908) to the trial of suits:

Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.

(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.

Order VII Rule 14- Production of Document on which plaintiff sues or relies:-

(1) Where a Plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to document produced for the Cross-examination of the plaintiff‟s witnesses, or, handed over to a witness merely to refresh his memory."

[5] Section 87 of the RP Act, 1951 provides that every election petition shall be tried by the High Court in accordance with the procedure applicable under the CPC with the qualifying expression "as nearly as may be" which indicates that all the provisions of the CPC are not applicable in the trial of an election petition. If it is intended by the Legislature that all the provisions of the CPC will have to be applied in the trial of an election petition, it could have expressly provided in the section itself instead of using the expression "as nearly as may be" but it did not do that. The trial of an election petition by the High Court is subject to the provisions of the RP Act, 1951 and the rules made thereunder. The expression "as nearly as may be" is not defined in the RP Act, 1951 and in other words, what and which provisions of CPC will be applied in the trial of the election petition, have not been specifically mentioned in the RP Act, 1951. But it has been submitted by the learned counsel appearing for the applicant/ petitioner that the High Court has the power to call for the documents under Order VII Rule 14 of CPC. Rule 14 (1) provides that whenever a plaintiff sues upon a document or relies upon a document in the suit, such a document is required to be produced in the court along with the plaint, if the same is his possession. Sub-rule 2 provides that where any such document is not in the possession or power of the plaintiff, he shall state in whose possession or power it is. Sub-rule (3) provides that a document which is no produced along with the plaint, shall not be received in evidence without the leave of the court. The question is as to whether the High Court is empowered under Sub-rule (3) to call for the documents relied upon by the applicant/ petitioner. The learned counsel appearing for the applicant/ petitioner has not brought to the notice of this court any decision rendered by the Hon'ble Supreme Court directly on the issue. However, in order to substantiate his contention, he has relied upon some of the decisions of the Hon'ble Supreme Court. In Ram Sewak Yadav Vs. Hussain Kamil Kidwai & ors., AIR 1964 SC 1249 wherein the question was whether the election Tribunal erred in declining to grant an order for inspection of the ballot paper which had been, pursuant to its order in that behalf, lodged before it in sealed boxes by the returning officer. The Hon'ble Supreme Court held that the power to grant permission for inspection of the ballot papers is implicit in Section 100(1) (d) (iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961 which may be exercised subject to the statutory restrictions about the secrecy of the ballot papers prescribed by Section 94 and 128 (1) of the RP Act. The Hon'ble Supreme Court held:

"7. An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled:

(i) That the petition for setting aside an election contains an adequate statement of the material facts on which the petitioners relies in support of his case; and

(ii) The Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.

But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection."

There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes, the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes, and to demand a re-count. Therefore a candidate who seeks to challenge an election on ground on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a re-count. It is in the light of the provisions of S. 83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a re-count that the application for inspection must be considered."

The other decision relied upon by him is the one rendered in Jyoti Basu & ors. Vs. Debi Ghosal & ors., (1982) 1 SCC 691. This decision is also not exactly on the issue involved herein and has been rendered on the issue relating to persons to be joined as respondents in the election petition as provided under Section 82 and 86(4) of the RP Act, 1951. But the expression "as nearly as may be" has been referred to in the decision with the following observations:

"10. ...The question is not whether the Civil Procedure Code applies because it undoubtedly does, but only "as far as may be" and subject to the provisions of the Representation of the People Act, 1951 and the Rules made thereunder. Section 87(1) expressly says so. The question is whether the provisions of the Civil Procedure Code can be invoked to permit that which the Representation of the People Act does not. Quite obviously the provisions of the Code cannot be so invoked........"

In Basanagowda Vs. Dr. S.B Amarkhed & ors., (1992) 2 SCC 612, the issue was as to whether the High Court erred in permitting the summoning of items as mentioned in para 1 of the application filed under Order XI Rule 14 read with Order XVI Rule 6 CPC and Section 87of the RP Act. The Hon'ble Supreme Court held that the Court is empowered and it shall be lawful for it to order the production, by any party to the suit, such documents in his possession provided the production of documents are necessary to decide the matter in question. The election petition being of quasi-criminal nature, the allegations in the petition must be pleaded clearly and with full particulars. The court while exercising its power under Order XI Rule 14 read with Order XVI Rule 6 has to keep in view the rigour of sub-rule (1) of Rule 93 of the Conduct of the Election Rules, 1961. The relevant paras of the said decision read as under:

"7. 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 consideration 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 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 135-A which was brought on statute with effect from 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 Government, 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 elections etc. have been enumerated. They are only 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 ingenuity 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 feature of our Constitution. During the post-independence era ten parliamentary elections have entrenched democratic policy 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 Section 135-A of the Act. The allegation of 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 giving material particulars. The nature and various acts of capturing booths were enumerated in the explanation to Section 135-A. 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 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 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 or 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 Section 152; and

(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 that a 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 Kidwai. 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 thereto or the packets of used ballot papers whether valid, tendered or rejected cannot be opened. Equally the packets of declarations by electors and the authorization 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 the records covered under Rule 93(1). To effectuate the objects of Section 135-A 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 conformity with Section 135-A of the Act."

[6] On the other hand, Shri H.S Paonam, the senior counsel has relied upon the decision rendered in Ram Sukh Vs. Dinesh Aggarwal, (2009) 10 SCC 541, wherein the Hon'ble observed that Section 87 which lays down the procedure required to be followed by the High Court while trying an election petition, requires that every election petition shall be tried, as nearly as may be, in accordance with the procedure applicable under the Code to the trial of the suits, subject of course to the provisions of the Act and of any requirement made thereunder. It has further been observed that in the absence of anything to the contrary in the Act, the Court trying an election can act in exercise of its power under the Code, including Order 6 Rule 16 and Order 7 Rule 11 of the Code. In Kalyan Singh Chouhan Vs. CP Joshi, (2011) 11 SCC 786, an election petition was filed under Section 80, 81, 100(1)(d)(iii) & (iv) of the Act, 1951. Several applications were filed by both the parties, of which one is the application being IA No.6839 of 2010 filed by the appellant to summon the marked copies of the electoral rolls, register of voters in Form-17-A, list of tendered voters in Form 17-B etc. The Hon'ble Supreme Court referred to its earlier decision in Kailash Vs. Nanhku, AIR 1968 SC 1500 wherein it has been held that the procedure provided for the trial of civil suits under CPC is not applicable in its entirety to the trial of the election petition. For the purpose of election petition, the word "trial" includes the entire proceedings commencing from the time of filing the election petition till the pronouncement of the judgment. The applicability of the procedure in the Election Tribunal is circumscribed by two riders: firstly, the procedure prescribed in CPC is applicable only "as nearly as may be" and secondly, CPC would give way to any provisions of the Act or any rule made thereunder. Therefore, the procedure prescribed in CPC applies to election trial with flexibility and only as guidelines.

[7] On perusal of the decisions rendered by the Hon'ble Supreme Court as aforesaid, it is absolutely clear that the procedure prescribed in CPC will have no application, in its entirety, in the trial of the election petition and only the portion of the procedure, which is not prescribed in the RP Act, 1951 or any rules made thereunder, will be applicable. There may be no specific procedure prescribed in the RP Act, 1951 or any rules made thereunder for moving such an application for calling documents which are in the possession of the Election Commission of India. Rule 93 of the Conduct of election rules, 1961 provides for production and inspection of election papers while in the custody of the district election officer and as regards its effect, it has been held by the Hon'ble Supreme Court that in respect of the documents mentioned in sub-rule (1), there was a strict prohibition for opening them unless the court was fully satisfied that a cast iron case was made out for the same. The Hon'ble Supreme Court, in Ram Sewak Yadav case, has held that that the power to grant permission for inspection of the ballot papers is implicit in Section 100(1) (d) (iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961. In view of the above, it cannot be said that the High Court has no power to call for the documents from the authorities concerned.

[8] The other point which needs to be considered by this court is the contention of the learned counsel appearing for the respondent No.1 that while moving the application, the provision of law under which it has been moved, is nowhere stated in the application and therefore, the application is liable to be rejected by this Court, to which the learned counsel appearing for the applicant/ petitioner has submitted that since the High Court has the power to call for the documents, the non-mentioning of the provision of law in the application is not fatal and it can be ignored by this court. In support of his contention, he has relied upon the decision in H.L. Mehra Vs. Union of India, (1974) 4 SCC 396 wherein the Hon'ble Supreme Court held that it is well settled that when an authority passes an order which is within it competence, it cannot fail merely because it purports to be made under a wrong provision, if it can be shown to be within its power under any provision. If the power is otherwise established, the fact that the source of the power has been incorrectly described in the order would not make it invalid. In N. Mani Vs. Sangeetha Theatre & ors., (2004) 12 SCC 278, the Hon'ble Supreme Court held that it is well settled that if an authority has a power under the law, merely because while exercising the power, the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law. In MIG Cricket Club Vs. Abhinav Sahakar Education Society & ors., (2011) 9 SCC 97, it has been held by the Hon'ble Supreme Court that it is trite that the validity of the order does not depend upon the section mentioned in the order. Wrong provision mentioned in the order itself does not invalidate the order, if is found that order could be validly passed under any other provision. The facts of the above cases are not identical with that of the present case and moreover, the decisions thereof have not been rendered on the issue relating to the power of the High Court to be exercised under the provisions of CPC. But the principle laid down therein can be applied, in the sense that since the High Court having been held to be empowered to call for the documents, it cannot be debarred from exercising its power merely because in the application, its source of power is not mentioned. In other words, it can be said to be a mere irregularity which shall not preclude the High Court from exercising its power.

[9] Having held as above, the short question is as to whether all the documents will be required to be called for and a decision thereof will depend upon the material facts pleaded in the election petition. There are two kinds of documents-one, mentioned in Schedule-I and the other, mentioned in Schedule-II. So far as the documents mentioned in Schedule-I are concerned, they are either guidelines or instructions issued by the Election Commission of India, from time to time, in relation to the election and are in its possession and moreover, since the existence of these documents is not denied by the respondent No.1, the same are not required to be called for. In other words, these documents are official documents. If need arises during the course of the trial, a responsible officer working in the Election Commission of India can be examined as witness to verify the factum of the said documents being issued by the Election Commission of India. The Schedule-II consists of many documents, some of which are instructions which will fall in the same line as that of the documents in Schedule-I. As regards the remaining documents, the concise statement of material facts which is found in para 31 of the election petition, is required to be gone into. Admittedly, a total of 298 votes are recorded on postal ballot papers, out of which the applicant/ petitioner received 126 votes while the returned candidate received 155 votes. The concise statement of material facts, in short, is that the said 298 votes are to be polled in accordance with the provisions of the RP Act, 1951 and rules made thereunder and while complying with the law, the poll officials are required to use various prescribed forms. The grounds on which the election petition has been filed, are that there has been improper receipt, refusal and rejection of votes by means of postal ballot papers and that there has been non-compliance with the provisions of the RP Act, 1951 and the rules including the guidelines/ instructions. However, so far as the first ground as regards the improper receipt, refusal and rejection is concerned, the applicant/ petitioner has failed to furnish the details of the persons whose votes have been improperly received or refused or rejected, which fact is evident from the averments made by him in para 31 (Iv) of the petition that after the result of the election being declared, he moved an application seeking information as regards the total number of requests received from the voters in prescribed form to franchise their rights by way of postal ballot and details thereof, certified copies of Form-

12 and 12-C and intimation received from elector under preventive detention. When and where did they happen, is also not stated in the election petition. Moreover, there is no averment made in para 31 of the petition that the applicant/ petitioner or his agents did raise any objection while counting the postal ballot papers except stating that his election agent discussed the matter with the Returning Officer on 13-03-2017. In this regard, the observations made by the Hon'ble Supreme Court in Ram Sewak Yadav case (supra) and in particular, para 9 thereof, are relevant and important and are to be kept in view to properly appreciate the case of the applicant/ petitioner. Therefore, the documents as mentioned in Schedule-II except the application dated 05-04-2017 of the applicant/ petitioner which is not denied, are also not required to be called for. Allowing the instant application, at this stage, may amount to granting opportunity to the applicant/ petitioner to roving and fishing evidence without making any specific averment in respect thereof in the petition. It may be noted that on the basis of their pleadings, six issues have already been farmed to which none of the parties has any objection and therefore, the trial of the election petition can go on on the basis of the materials placed on record.

[10] In view of the above and for the reasons stated hereinabove, the application is devoid of merit and is accordingly dismissed.