JUDGMENT

FAZAL ALI, J.:— By an Order dated 15th November, 1983 we had allowed the appeal of the appellant and set aside the order of the High Court without making any order as to costs. This election appeal arises out of an interlocutory order passed by the Delhi High Court on an application given by the respondent for directing the Returning Officer to produce the marked electoral rolls for inspection. The Court also granted further prayer of the respondent for allowing inspection of the counterfoils. The High Court granted both the prayers and hence this appeal.

2. The appeal arises out of the election held for the Metropolitan Council from the Narela Constituency. As a result of the poll the appellant Hari Ram secured 12369 votes and Hira Singh (respondent) 12131 votes. Thus the appellant was declared elected. The respondent-petitioner had made a number of allegations against the appellant but in the present appeal we are only concerned with the interlocutory prayer made by the respondent for inspection of marked electoral rolls and the counterfoils.

3. In support of the appeal. Mr. Nariman submitted that the High Court gravely erred in allowing the prayers at an interlocutory stage without examining whether proper foundation was laid for inspection and sufficient material placed before the Court in order to allow the prayer which would result in adversely affecting the secrecy and sacrosanct nature of the electoral process. In our opinion the contention of the appellant is well founded and must prevail.

4. It is now well settled by a long course of decisions of this Court that inspection of ballot papers and counterfoils should be allowed very sparingly and only when it is absolutely essential to determine the issue. This Court has further laid down that in the garb of seeking inspection the defeated candidate should not be allowed to make a roving inquiry in order to fish out materials to set aside the election. In the case of Bhabhi v. Sheo Govind, (1975) Supp SCR 202 this Court clearly observed thus (at p. 2123 of AIR):

"Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection of the ballot papers:

(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous vague and indefinite allegations:

(2) That before inspection is allowed the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts :

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(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish (out) materials for declaring the election to be void: and

(6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials."

5. After going through the judgment of the High Court and the application of the respondent-petitioner for inspection of the documents concerned. We are satisfied that no case for inspection was at all made out and the High Court erred in allowing the prayers of the respondent and acted against the settled principles as extracted above.

6. To begin with, the High Court seems to have been under the impression that the Court had ample powers to direct production of any document under S. 165 of the Indian Evidence Act. In doing so with due deference the High Court overlooked that the Representation of the people Act was a special Act and provisions of the Evidence Act or the Code of Civil Procedure would only apply where they are not excluded. Thus at the very outset, with due respect, the approach of the High Court was legal