Judgment

MUKHERJEE, J.- Special leave granted in both the petitions.

2. In these two appeals orders dated November 2, 1992 and May 28, 1993 passed by the High Court of Punjab & Haryana in Election Petition No. 5 of 1992 are under challenge. Facts leading to the filing of these appeals and relevant for their disposal are as under :

3. The appellant and the four respondents herein contested the election of 99 Moga Assembly Constituency polling for which took place on February 19, 1992. When the results were declared it was found that Respondent 1 had secured the highest number of votes - and thereby won the election - followed by the appellant, who secured 7 votes less than her, and the other respondents. The appellant then filed the election petition assailing the election on various grounds as detailed therein. The ground, which is relevant for our present purposes, finds place in paragraph 18 of the Election Petition which reads as under :

"That twenty-two bogus votes of dead electors by impersonation were cast in favour of Respondent 1 at the instance of Respondent 1 and her supporters. The relevant details of these dead electors is annexed along with as Annexure P-9."

4. In course of the trial that followed the appellant examined himself to substantiate the allegations made by him in the petition and thereafter moved an application on October 22, 1992 seeking production of Form No. 16 (Ballot-Paper Account) of booth Nos. 1 to 125 and marked copies of the electoral roll of booth Nos. 8, 35, 44, 56 and 57. After hearing the parties the learned trial Judge allowed the prayer of the appellant so far as it related to the production of Form No. 16 but rejected the other prayer by the impugned order dated November 2, 1992. Thereafter on January 4, 1993 the appellant filed an application praying for amendment of the Election Petition which was rejected by the other impugned order.

5. In rejecting the prayer of the appellant for production of the marked copy of the electoral roll the learned Judge first observed that as that document was included in sub-clause (d) of Rule 93(1) of the Conduct of Elections Rules, 1961 (Elections Rules for short) it should not be allowed to be produced to maintain secrecy of the election. The other ground which weighed with the learned Judge was that no case had been made out for summoning the document. Having considered the materials on record in the light of the relevant rules and circulars we are unable to sustain either of the above grounds.

6. Rule 93(1) of the Elections Rules provides that while in the custody of the District Election Officer or the Returning Officer, the documents referred to in various clauses thereof shall not be opened and their contents shall not be inspected by, or produced before any person or authority except under the order of the competent Court; and the documents referred to in clause (d) of the above rule include the packets of the marked copy of the electoral roll.

7. The manner in which the marked copy of the electoral roll is to be maintained is provided for in Chapter V of the official handbook issued by the Election Commission of India for use of its officers during election. It is provided therein that as soon as an elector enters the polling station he has to proceed directly to the First Polling Officer who is to be in charge of the marked copy of the electoral roll and responsible for the identification of the electors. After taking requisite steps to locate the name of the elector in the electoral roll and after checking it with the particulars in the relevant entry in the roll, he is to call out the page number, the part number, the serial number and the name of the elector to the hearing of the polling agents and the Second Polling Officer. If there is no challenge as regards the identity of the elector he is required to underline in every case the entry relating to the elector in the marked copy of the electoral roll with him and where the elector is a female to