1. The question that arises for decision is whether under Rule 15 of the Municipal Election Rules an illiterate's voting paper must be marked by the polling officer in secret and not in the presence of the candidates or their agents. In the rules for election to the Local Boards there is a specific provision in the rule corresponding to Rule 15 that this paper shall be marked in the presence of the candidates or their agents. There is also a similar provision in the English Electoral Rules. In the Municipal Rules as in the rules for election to the legislative Council, etc., there is no such provision and Rule 15 reads as follows:
If the voter is unable to read the ballot paper or to make a cross thereon, and applies for assistance in doing so, that Polling Officer shall read it for him and, if so required, mark the ballot paper according to the directions of the voter and give it to him to put in the ballot box.
2. It is contended for the petitioner that there is no direction that the polling officer shall go either to the place set apart for illiterate voters to record their votes or to some other place where the candidates and their agents are not and that therefore there is no rule prohibiting the marking of the vote in the presence of the candidates. No reason has been put forward for the difference in the two sets of rules for the Local Boards and the Municipal Councils, respectively, and therefore the matter resolves itself into a question of the interpretation of Rule 15.' There is no provision in the Rule for the polling officer going apart or for the withdrawal of the candidates and their agents. No doubt secrecy as far as possible is the object of the rules and it might be considered that some such action as above should be adopted by the polling officer but it must be remembered that in the case of illiterate voters there cannot be absolute secrecy as the polling officer must know for which candidate the vote is to be recorded. It is also to be noted that Clause 3 of Rule 15 says that the marking of a ballot paper by the polling officer shall not be questioned 'subsequently' on the ground that it was not in accordance with the voter's directions. The word 'subsequently' may possibly imply that at the time of marking it can be questioned, but that is only a possible inference. I am however satisfied that there is no provision in the rules insisting on the absence of the candidates or their agents from the place where the ballot paper is marked by the polling officer and therefore, the marking in the presence cannot be said to be a violation of any of the rules. I must therefore allow this petition and as it is said that there are other objections which have not been disposed of by the learned District Judge the petition will have to be referred back to him for disposal on the other points.
3. I may observe that the District judge after finding that paper had not been marked in the proper manner omitted to record a finding on the question of whether the non-compliance with the rules had affected the result of the election as required in Rule 11, Clause c of the rules for decision of disputes.
4. The respondent will pay the petitioner's costs.