1. Petitioners seek to revise the order of the Subordinate Judge, Bapatla, setting aside the election of petitioner 2 as a Councillor of the Chirala Municipality. Petitioner, was the Chairman of the Municipality at the time of the election, and was accused of corruptly assisting petitioner 2 but that was no reason for including him as a principal party in an election petition. His name should have been struck out at the outset.
2. Petitioner 2 who will be referred to as petitioner raises two points. Firstly, the inquiry was vitiated by the learned Subordinate Judge allowing the ballot box to be opened by the respondent and its contents to be generally inspected by him. This was a most improper proceeding, and no justification for it is upon the record. The respondent filed an affidavit to the effect that without seeing the records (the ballot papers) it was impossible for him to proceed with the trial and the Subordinate Judge without obtaining further particulars granted permission.
3. No doubt under Rule 26 (2) of the Rules for the conduct of Municipal elections an Election Court may order the ballot papers to be inspected, but obviously that is a power which should be exercised with the greatest circumspection, otherwise the voters would no longer be safeguarded by the secrecy of the ballot. Rule 41 of the Rules for Parliamentary Elections (Rogers on Elections, Vol. 2 (1918), p. 730, lays down that the mode in which any particular elector has voted shall not be discovered until he has been proved to have voted, and his vote has been declared by a competent Court to be invalid. This is the right principle. The examination of the ballot paper must follow the proof, not precede it, and if it is necessary to find such a paper the search must be conducted by the Judge himself or by the subordinates in whose impartiality he has complete confidence. The parties themselves should never have access to the general contents of the ballot box.
4. But it cannot be said that this irregularity has invalidated the inquiry. If petitioner could have established, as he alleged that the whole case against him was fraudulently based on information obtained in this manner, he might have discredited the evidence to that extent. But it is all a question of fact and the conclusion at which the Subordinate Judge has arrived after considering all the circumstances cannot be disturbed by this Court on revision.
5. Secondly, exception is taken to the manner in which the learned Subordinate Judge presuming that certain witnesses would probably have voted for the respondent has aided their votes as if they had been duly recorded. After also rejecting certain votes recorded for the petitioner he declares the figures as follows: Petitioner 43. Respondent 49 as against the original petitioner No. 51. Respondent 42 and so feels himself constrained to declare the respondent elected. There is no justification for this. The Judge may reject votes, and if he had confined himself to rejection the figures would be petitioner 43, respondent 42. But he cannot also add votes. Therefore, on the bare figures the petitioner still heads the poll, and the Judge does not profess to put the respondent in his place on any other consideration than that of the figures.
6. Under Rule 12 the Judge has a discretion either to order a fresh election or to declare some other party to the petition duly elected. Obviously the latter course is only appropriate when the inquiry has been confined to mere technical questions about the admissibility of certain votes. When there are charges and counter-charges of corruption it would be unwise to declare some other party elected, unless the Court was prepared to extend its inquiry into the conduct of every candidate. Other wise a candidate would be elected by action of the Court, and no further election petition against his alleged misdemeanours would lie. Where one party has indulged in active intimidation it is by no means improbable that its conduct has evoked a response from its opponents; as was observed on a famous occasion not altogether dissimilar from the facts of the present case it may be a spirited contest with sturdy patriotism culled forth on either side.
7. In such circumstances it is hardly safe to declare as elected the second on the poll merely because the first is disqualified. Nor was the learned Subordinate Judge prepared to take such a step. He merely declared the respondent elected because he thought wrongly that he had obtained more votes.
8. I, therefore, set aside this part of the order and order a fresh election.
9. No costs to petitioner 2 who has failed in his main attempt to rehabilitate his own election. petitioner 1 may have his costs throughout in Civil Revision Petition No. 1458 of 1927 to which this judgment also applies.