1. The petitioner has Filled I.A. IV; it purports to be an application under S. 151 of the Civil P. C. He seeks permission to get on record the marked electoral rolls maintained by the Polling Officers of the Polling Booths situated at Ilkal town through his witness P. W. 14, Sri Thamanna Gowda Thammanna Gowda Patil. This witness who is being examined by the petitioner is the 4th respondent in the election petition. He was the Returning Officer of the constituency at the time of the election in question.
2. The facts leading to the filing of this I.A. IV may briefly be stated:
The petitioner has called in, question the election of the first respondent to the Karnataka Legislative Assembly from the Hunugund. Assembly Constituency No. 216 in the General Elections held in the month of Feb. 1978 1978. He is challenging the election on four grounds, namely -
. (I) That the first respondent had committed corrupt practices by unduly influencing the voters and interfering with the free exercise of their electoral rights.
(ii) That he had committed corrupt practices by incurring or authorizing of expenditure in contravention of, S. 77 of the Representation of the -People Act, 1951 (the Act);
(iii) That there was large scale improper reception of votes and. as well as reception of votes' which, were void: and
(iv) That in the matter of. counting of votes the Returning Officer had failed to make proper arrangements and had violated the mandatory provisions it the rules.
Elaborating the third ground of attack it is stated in the -petition that there was large scale voting by imprecation at the polling booths situated in Ilkal town. It is stated that the supporters of the lot respondent had manoeuvred to see that votes are cast in the names of dead persons and in the names of those who were not at Ilkal town on the date of poll. He has furnished a list of such names at schedules E. F. G. and H to the petition. He has let in some oral evidence in support of these averments. He has also summoned the marked electoral rolls used at the time of the polling at the -polling stations of Ilkal town These electoral rolls have been sent to the Court by the District Election Officer pursuant to the summons issued to him. While examining P. W. 14 the petitioner wanted to get those marked electoral rolls on record as a piece of documentary evidence in proof of the allegation of voting -by impersonation. At that stage objections were raised on behalf of the first respondent for getting on- record these electoral rolls stating that they were privileged documents and should not be permitted, as a matter of course, to get them on record as evidence in the case. The learned counsel for the its respondent, sought for time to file objections in writing in this connection. After hearing both the sides the petitioner was directed to file an interlocutory application stating what all documents, out of the ones sent by the District Election. Officer In sealed packets, he wants to be brought on, record as evidence through the witness under examination (vide order passed by this Court on 7-12-1970 in the deposition sheet of P. W. '14). Accordingly t A. TV has come to be filed. The Ist respondent has filed his objections in writing also.
3. The objection raised by the lst respondent is sought to be sustained mainly on the ground that permitting the petitioner to get the marked electoral rolls on record as evidence in the case would result in infringing the 'secrecy of voting'., The learned counsel for the Ist respondent based his arguments relying on S. 94 of the Act read with R. 93 of the Conduct of Election Rules, 1961 (the Rules).
4. Under S. 94 of the Act 'no witness or, other person shall be required to state for whom he has voted at an election.' This salutary principle is incorporated in our Election Law to preserve the secrecy of voting by ballot. Based an this * principle S. 128 of the Act enjoins on all those connected with the recording or counting of votes to maintain the secrecy of voting and forbids them from communicating to any Pat any information calculated to violate such secrecy. Violation of this provision is punishable as provided under sub-s (2) of S. 129
5. Secrecy' of voting or secrecy of ballot means the fact to whom out of more than one contestant, an elector has cast his vote at a given election shall not be made known to the public. That is why S 94 of the Act confers a Privilege on a voter to refuse to testify to whom he has cast his ballot, an S. 128 prohibits the persons from making known any information calculated to violate such secrecy. One the ways by which it is possible know to whom a particular person has cast his vote is by opening the ballot boxes and examining the ballot Papers. Courts have held that it being important to maintain the secrecy of the ballot which is sacrosanct, Inspection of ballot papers should not be allowed on frivolous, vague, and indefinite grounds (See Bhabhi v. Sheo Govind, : AIR1975SC2117 ).
6. Now the question is, would the secrecy of the ballot be violated if the petitioner is permitted to get the marked electoral rolls on record as evidence? The marked electoral rolls used by the Presiding Officers of polling booths or polling stations at are. election would only show. whether franchise has. been exercised by or in the name of the person whose name finds a place in the electoral roll. Beyond that nothing else can be known. It is not possible to know from these electoral rolls whether the person who had cast his vote had voted for a 'particular candidate or symbol. In the circumstances it cannot be said that permitting the petitioner to get the marked elect al rolls on record as evidence would be violative of the principle of the secrecy of voting. The Ist respondent also cannot draw any inspiration in this connection from R 93 of the Rules. That rule merely provides that packets of unused ballot papers with counterfoils attached thereto, the packets of used ballot' papers, the packets of counter-foils of used ballot papers, the packets of the marked copy of the electoral roll, and the packets of the declarations by electors and the attestation of their signature while these packets are in the custody of the District Election Officer or the Returning Officer, shall not be opened and their contents shall not be inspected or produced before any parson or authority except under the order of a Competent Court. After an election is over the materials 'referred to above and used in the election will, in the first instance, be kept with the Returning Officer in sealed packets and thereafter, in the normal course, will be transmitted to the District Election Officer. , They are required to be preserved as there would be a, likelihood of the election of a returned candidate being called in question before a Competent Court or Tribunal. Therefore, this Rule enjoins that the sealed packets containing the aforesaid materials shall not be lightly meddled with while in the custody of the aforesaid authorities except under the orders of Competent Court. Rule 93 doe's not apply to the facts of this case. The learned counsel for the Its respondent placed reliance on some decisions including Ram Sutra Singh v. Harsh Chancre Mahanoy, : AIR1975SC701 while arguing that ' permitting the petitioner to get the marked electoral roll, without there being a prima facie case, without permitting the lest respondent to adduce his rebuttal evidence, and without there being material. Facts and particulars in this respect in the election petition, would be volatile of the principle of secrecy of ballot. But, in those cases what was sought for was inspection of the ballot papers or counter-foils thereof. It is true, as already stated above, that such inspection of the ballot papers or counter-foils should not be permitted for the mere asking. That stage has not yet been reached in the instant case.
7. For the reasons mentioned above I A. IV is allowed overruling the objection of 1st respondent. No costs.
8. Application allowed.