whether the appellant can be said to have any indirect share or monetary interest in the contract of her husband with the Village Panchayat of Raia and if the answer is in the affirmative whether she has incurred disqualification as a Panch member from Raia Village Panchayat of 1 =We also hold the view that the prohibition in Section 10(f) should not receive unduly narrow or restricted construction. In what we have considered above, the answer to the first question must be in the affirmative and it must consequently be held that the appellant has incurred disqualification under Section 10(f) of the 1994 Act. We hold accordingly.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1544 OF 2012 (Arising out of SLP (Civil) No. 26568 of 2009) Zelia M. Xavier Fernandes E. Gonsalves .... Appellant Versus Joana Rodrigues & Ors. .... Respondents JUDGMENT R.M. Lodha, J. Leave granted. 2. The question which we have to consider is whether the appellant can be said to have any indirect share or monetary interest in the contract of her husband with the Village Panchayat of Raia and if the answer is in the affirmative whether she has incurred disqualification as a Panch member from Raia Village Panchayat of 1 Salcete Taluka in South Goa District, State of Goa under Section 10(f) of the Goa Panchayat Raj Act, 1994 (for short, `1994 Act'). 3. The appellant was declared as a returned candidate from Ward No. 9 of Raia Village Panchayat of Salcete Taluka, State of Goa at the election held in May 2007 for a period 2007-2012. 4. On or about March 18, 2008, the respondent no. 2-- Village Panchayat of Raia -- invited bids for the collection of market fee within its jurisdiction for 2008-09. Mrs. Joana Rodrigues (respondent no. 1), Xavier Fernandes (appellant's husband) and one Bernard Mario Fernandes submitted their bids. On March 28, 2008, the tender forms were opened in the office of the respondent no. 2 and the bid of the appellant's husband was accepted as his bid was the highest. Her husband, on acceptance of his bid, paid the first installment of 1/4th part of the bidding amount collection. 5. On March 31, 2008, the respondent no. 1 made a representation to the Deputy Director of Panchayat, Madgaon, Goa bringing to his notice that the appellant was liable for disqualification under Section 10(f) of the 1994 Act. It appears that the respondent no. 1 also made an application to the State Election Commission (for short, `Commission), State of Goa, on which the Commission 2 directed the respondent no. 1 to file a formal election petition seeking disqualification of the appellant. Accordingly, the respondent no. 1 filed an election petition under Section 11 before the Commission for disqualification of the appellant on the ground that she has directly or indirectly a share or monetary interest in the above contract given by the respondent no. 2 to her husband. 6. The Commission, on hearing the parties, vide its order dated July 3, 2009 held that the present appellant had indirectly a share or monetary interest in the contract executed by the Village Panchayat of Raia with her husband and ordered that the appellant was disqualified as a Panch Member of Village Panchayat of Raia in Salcete Taluka in terms of clause (f) of Section 10. 7. The appellant, aggrieved by the above order of the Commission, filed a writ petition before the High Court of Bombay at Goa. The Single Judge of that Court on July 22, 2009 dismissed the writ petition. It is from this order of the High Court that this appeal, by special leave, has arisen. 8. We have heard Mr. R. Sundaravardhan, learned senior counsel for the appellant and Mr. Arun Francis, learned counsel for the respondent no. 1. The contention of Mr. Sundaravardhan, 3 learned senior counsel for the appellant is that mere relationship of husband and wife will not create that type of interest which is contemplated by Section 10(f). He heavily relied upon the decision of this Court in the case of Gulam Yasin Khan vs. Sahebrao Yeshwantrao Walaskar and another1. Mr. Arun Francis stoutly supported the view of the High Court. 9. Gram Sabha -- Constitution of Panchayats - is dealt with in Chapter II of the 1994 Act. Section 7, inter alia, provides that all the members of panchayat shall be elected. Section 9 provides for qualification for membership while Section 10 makes a provision for disqualification for membership. We are concerned with Section 10(f) and the said provision reads as follows: "S. 10. Disqualification for membership.-- A person shall be disqualified for being chosen as, and for being, a member of the Panchayat if,-- xxx xxx xxx (f) he has directly or indirectly any share or monetary interest in any work done by or to the Panchayat or any contract or employment with, under or by or on behalf of, the Panchayat; xxx xxx xxx" 1 AIR 1966 SC 1339 4 10. Section 11 provides that if any question arises as to whether a member of a Panchayat has become subject to any disqualification referred to in Section 10, it shall be referred to the State Election Commission for decision and its decision thereon shall be final. 11. The purpose and object of providing for disqualification for membership of the Panchayat in clause (f) of Section 10 is to ensure that there is no conflict between the private interest of the member and his duty as a member of the Panchayat. It is based on general principle of conflict between duty and interest. 12. Insofar as the present matter is concerned, we have to consider the applicability of clause (f) of Section 10 to the extent, "he has.....indirectly any share or monetary interest in .....any contract .... by or on behalf of the Panchayat" in the fact situation noticed above. A similar provision came up for consideration before a 5-Judge Bench of this Court in the case of Gulam Yasin Khan1. That was a case where the appellant and the respondent No. 1 therein, namely, Gulam Yasin Khan and Sahebrao Yeshwantrao Walaskar respectively were candidates for election as members to the Municipal Committee, Malkapur. They had filed their nomination 5 papers. At the stage of scrutiny, Sahebrao Yeshwantrao Walaskar objected to the validity of the candidature of Gulam Yasin Khan on the ground that Gulam Yasin Khan's son Khalildad Khan was a Moharir on Octroi Naka employed by the Committee and on account of the employment of Gulam Yasin Khan's son by the Municipal Committee, Gulam Yasin Khan had an interest in the Municipal Committee and so he was disqualified from standing for election under clause (l) of Section 15 of the Central Provinces and Berar Municipalities Act, 1922 (for short, `CP Municipalities Act'). Gulam Yasin Khan disputed the validity of the objection and he stated that his son was not staying with him and had no connection whatsoever. The Supervising Officer overruled the objection raised by Sahebrao Yeshwantrao Walaskar. The order of Supervising Officer was challenged by Sahebrao Yeshwantrao Walaskar in the writ petition before the High Court. The High Court allowed his writ petition and set aside the order of the Supervising Officer and declared Sahebrao Yeshwantrao Walaskar elected to the Municipal Committee. It is from this controversy that the matter reached this Court. This Court in the backdrop of the above facts considered the question whether by virtue of his relationship with Khalildad Khan, Gulam Yasin Khan 6 could be said to have any indirect share or interest in the employment of Khalildad Khan with the Municipal Committee. The provision under consideration read, "no person shall be eligible for election, selection or nomination as a member of a committee, if such person has directly or indirectly any share or interest in any contract with, by or on behalf of the committee, while owning such share or interest". 13. In light of the above factual and legal position, this Court in Gulam Yasin Khan1 (Pgs. 1341-1342) held as under : "7. .........We are assuming for the purpose of dealing with this point that the contract to which clause (l) refers, includes employment, though unlike other similar statutes, the word "employment" is not specifically mentioned in the said clause. In order to incur disqualification, what the clause requires is "interest or share in any contract"; it may either be a share or an interest; and if it is an interest, the interest may be direct or indirect. But it is plain that the interest to which the clause refers, cannot mean mere sentimental or friendly interest; it must mean interest which is pecuniary, or material, or of a similar nature. If the interest is of this latter category, it would suffice to incur disqualification even if it is indirect. But it is noticeable that the clause also requires that the person who incurs disqualification by such interest must "own such share or interest". It is not easy to determine the scope of the limitation introduced by this last sub-clause. Mr. Gauba for respondent No. 1 urged that the clause "owning such share or interest" is tautologous when it refers to direct interest or share, and is meaningless when it refers to indirect share or interest. Prima facie, there is some force in this contention; but whatever may be the exact denotation of this clause, it does serve the purpose of limiting the character of the share or interest which incurs disqualification prescribed by the clause and it would not 7 be easy to ignore the existence of the last portion of the clause altogether. 8. It is quite true that the purpose and the object of prescribing the several disqualifications enumerated in clauses (a) to (l) of s. 15 of the Act is to ensure the purity of the administration of Municipal Committees, and in that sense, it may be permissible to hold that the different clauses enumerated in S.15 should not receive an unduly narrow or restricted construction. But even if we were to adopt a liberal construction of S. 15(l), we cannot escape the conclusion that the interest or share has to be in the contract itself. When we are enquiring as to whether the appellant is interested directly or indirectly in the employment of his son, we cannot overlook the fact that the enquiry is not as to whether the appellant is interested in the son, but the enquiry is whether the appellant is interested in the employment of the son. The distinction between the two enquiries may appear to be subtle, but, nevertheless, for the purpose of construing the clause, it is very relevant. Considered from this point of view, on the facts proved in this case, we find it difficult to hold that by mere relationship with his son, the appellant can be said to be either directly or indirectly interested in his employment. xxx xxx xxx xxx 12. It would, we think, be unreasonable to hold that mere relationship of a person with an employee of the Municipal Committee justifies the inference that such a person has interest, direct or indirect, in the employment under the Municipal Committee. In the circumstances of this case, what is proved is the mere relationship between the appellant and his son who is the employee of the Municipal Committee; and on that relationship the High Court has based its conclusion that the appellant is disqualified under S. 15(l) of the Act. We are satisfied that this conclusion is erroneous in law." 8 14. In Gulam Yasin Khan1 while construing Section 15 (l) of the CP Municipalities Act, this Court held that the interest or share has to be in the contract itself; mere relationship of a person with an employee of the Municipal Committee shall not justify the inference that such a person has interest, direct or indirect. Ordinarily, there would not have been any difficulty in applying Section 10(f) in the same manner but we think Gulam Yasin Khan1 is clearly distinguishable and cannot be applied to the present fact situation which concerns money affairs of husband and wife governed by the provisions contained in Articles 1098 and 1108 of Portuguese Civil Code, 1860 (`1860 Code') and Section 5A of the Indian Income Tax Act, 1961 (`Income Tax Act'). 15. Articles 1098 and 1108 of the 1860 Code which is applicable in the State of Goa read as under : 1098. - In the absence of any contract, it is deemed that the marriage is done as per the custom of the country, except when it is solemnized in contravention of the provisions of Article 1058 clause 1 and 2; because in such a case it is deemed that the spouses are married under the simple communion of acquired properties. x x x x x x x x x 9 1108. - The marriage as per the custom of the country consists in the communion between the spouses of all their properties, present and future, not excluded by law. 16. Section 5A of the Income Tax Act is as follows : 5A. Apportionment of income between spouses governed by Portuguese Civil Code. - (1) Where the husband and wife are governed by the system of community of property (known under the Portugese Civil Code of 1860 as "COMMUNIAO DOS BENS") in force in the State of Goa and in the Union territories of Dadra and Nagar Haveli and Daman and Diu, the income of the husband and of the wife under any head of income shall not be assessed as that of such community of property (whether treated as an association of persons or a body of individuals), but such income of the husband and of the wife under each head of income (other than under the head "Salaries") shall be apportioned equally between the husband and the wife and the income so apportioned shall be included separately in the total income of the husband and of the wife respectively, and the remaining provisions of this Act shall apply accordingly. (2) Where the husband or, as the case may be, the wife governed by the aforesaid system of community of property has any income under the head "Salaries", such income shall be included in the total income of the spouse who has actually earned it. 17. There is no dispute that the respondent no. 4 and the appellant are husband and wife and are governed by the provisions of the 1860 Code. By virtue of Article 1098 and Article 1108 thereof, in the absence of any contract, the marriage between the appellant 10 and the respondent no. 4 is governed by the system `Communiao Dos Bens' i.e. community of property. Accordingly, on marriage, the property of the spouses gets merged. Each spouse, by operation of law, unless contracted otherwise, becomes 50% shareholder in all their properties, present and future and each spouse is entitled to a one-half income of the other spouse. 18. Section 5A(1) of the Income Tax Act provides that where the husband and wife are governed by the system of "Communiao Dos Bens" in force in the State of Goa the income of the husband and the wife under any head of income shall not be assessed as that of such community of property but such income of the husband and the wife from all sources, except from salary, shall be apportioned equally between the husband and the wife and the income so apportioned shall be included separately in the total income of the husband and of the wife respectively and the remaining provisions of the Income Tax Act shall apply accordingly. Sub-section (2) of Section 5A provides that where the husband or the wife governed by system of community of property has any income under the head `salaries', such income shall be included in the total income of the spouse who has actually earned it. 11 19. In P. Ramanatha Aiyar's The Law Lexicon, 2nd Edition (reprint 1999) the term `interest' is explained thus: "Interest. Legal concern, right, pecuniary stake the legal concern of a person in the thing or property or in the right to some of the benefits or use from which the property is inseparable ; such a right in or to a thing capable of being possessed or enjoyed as property which can be enforced by judicial proceedings. The word is capable of different meanings, according to the context in which it is used or the subject-matter to which it is applied. It may have even the same meaning as the phrase "right title and interest" but it has been said also to mean any right in the nature of property, but less than title. The word is sometimes employed synonymous with estate, or property. Interest means concern, advantage, good ; share, portion, part, or participation. A person interested is one having an interest ; i.e. a right of property or in the nature of property, less than title. The word `interest' is the broadest term applicable to claims in or upon real estate in its ordinary signification among men of all classes. It is broad enough to include any right, title, or estate in or lien upon real estate. One who holds a mortgage upon a piece of land for half its value is commonly and truly said to be interested in it. xxx xxx xxx". 20. The word `interest' has a basic meaning of participation in advantage, profit and responsibility. `Interest' is a right, title or share in a thing. 12 21. Section 10(f) speaks of monetary interest. The general rule that the wife's interest is not necessarily the husband's interest has no application where the husband and the wife are governed by the system `community of property' because under that system, on marriage, each spouse is entitled to a one-half income of the other spouse unless contracted otherwise. During the subsistence of marriage, the husband and the wife each have a share in the corpus as well as the income of communion property. 22. There is no doubt that Section 10(f) contemplates that share or monetary interest (direct or indirect) has to be in the contract itself. The expression `in any contract' means in regard to any contract. Could it be said that the appellant had no indirect share or monetary interest in regard to her husband's contract with the Village Panchayat Raia when, by operation of law, she is entitled to the profits of that contract? The answer has to be in the negative. Money acquired by the appellant's husband from the contract with the Village Panchayat Raia is `community property' and, therefore, the conclusion is inescapable that the appellant has indirect share, or, in any case, monetary interest in the contract awarded to her husband by the Village Panchayat Raia as the profits from the 13 contract shall be apportioned equally between her and her husband. There is no evidence of exclusion of the appellant from her husband's assets and income. The provisions contained in Articles 1098 and 1108 of the 1860 Code and Section 5A of the Income Tax Act give the appellant a participation in the profits of the contract and advantages like the apportionment of income from that contract. The appellant, by operation of law, becomes entitled to share in the profits of the contract awarded to her husband by the Village Panchayat. From whatever way it is seen, the appellant's participation in the profits of the contract does constitute an "indirect monetary interest" in the contract for collection of market fee awarded to her husband within Section 10(f) prohibiting the member of the Village Panchayat from having such an interest. 23. While considering Section 15(l) of the CP Municipalities Act which provided for the disqualifications to the elections of the Municipal Committees, this Court in Gulam Yasin Khan1 held that the purpose and the object of prescribing several disqualifications in that provision is to ensure the purity of the administration of the Municipal Committees and in that sense the different clauses of disqualifications should not receive unduly narrow or restricted 14 construction. We also hold the view that the prohibition in Section 10(f) should not receive unduly narrow or restricted construction. In what we have considered above, the answer to the first question must be in the affirmative and it must consequently be held that the appellant has incurred disqualification under Section 10(f) of the 1994 Act. We hold accordingly. 24. Civil Appeal is dismissed with no order as to costs. ............................. J. (R.M. Lodha) ............................. J. (H. L. Gokhale) NEW DELHI FEBRUARY 3, 2012. 15

Considering the fact that the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376(2)(f) IPC, we feel that the ends of justice would be met by imposing RI for 10 years. Learned counsel appearing for the appellant informed this Court that the appellant had already served nearly 10 years.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 309 OF 2012 (Arising out of S.L.P. (Crl.) No. 2967 of 2011) Bavo @ Manubhai Ambalal Thakore .... Appellant(s) Versus State of Gujarat .... Respondent(s) J U D G M E N T P.Sathasivam,J. 1) Leave granted. 2) This appeal is directed against the final judgment and order dated 28.08.2009 passed by the Division Bench of the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 505 of 2004 whereby the High Court while affirming the conviction and sentence awarded by the trial Court dismissed the appeal of the appellant herein. 1 3) Brief facts: (a) According to the Complainant-Ramilaben, on 02.05.2002 in the morning, when her husband had gone to work, she was in her house along with her three children. At that time, her daughter - Smita, aged seven years, was having pain in her finger, therefore, she called her distant relative Bavo @ Manubhai Ambalal Thakore - the appellant herein for taking her to the doctor. (b) Thereafter, the appellant herein took Smita to a doctor at about 10:00 a.m. and at about 11:30 a.m. she returned home alone limping and crying. When the complainant asked her daughter as to what had happened, she narrated the whole incident that how the appellant herein over-powered her and the Complainant finally came to know that he has committed rape on her daughter which was also evident from her condition. Thereafter, the Complainant went to the house of the appellant, but he was not present there. When her husband returned home in the evening, she informed him about the incident and, on 05.05.2002, a complaint was lodged at Umreth Police Station. 2 (c) On 07.07.2002, the police, after conducting the investigation, filed a charge sheet before the Judicial Magistrate, First Class, Umreth. Since the case was exclusively triable by the Court of Sessions, the Judicial Magistrate committed the case to the Court of Additional Sessions Judge, Anand. On 18.03.2004, the Addl. Sessions Judge, convicted the appellant for the offence punishable under Sections 376 and 506(2) of the Indian Penal Code, 1860 (in short "the IPC") and sentenced him to undergo imprisonment for life with a fine of Rs.20,000/-, in default, to further undergo RI for three years. (d) Being aggrieved by the order of conviction and sentence, the appellant herein preferred an appeal before the High Court. The High Court, by order dated 28.08.2009, dismissed the appeal and confirmed the conviction and sentence awarded by the Addl. Sessions Judge. (e) Being aggrieved, the appellant herein has preferred this appeal by way of special leave before this Court. 3 4) Heard Mr. K.S. Bahl, learned counsel for the appellant herein and Ms. Hemantika Wahi, learned counsel for the respondent-State. 5) Learned counsel appearing for the appellant fairly states that he is not challenging the conviction but questioning the quantum of sentence only. According to him, taking note of various factors including the age of the appellant-accused being 18-19 years at the time of the incident and hailing from a poor family, award of life imprisonment and a fine of Rs.20,000/-, in default, to further undergo RI for three years is excessive. Learned counsel appearing for the respondent- State fairly submitted that the Court is free to impose appropriate sentence in terms of Section 376(2)(f) of the IPC. 6) In view of the limited submission, there is no need to go into the finding regarding conviction under Sections 376 and 506(2) of the IPC. The only question to be considered is whether the sentence of life imprisonment and a fine of Rs.20,000/- is reasonable or excessive. 7) Section 376 speaks about the punishment for rape. Sub- section(2)(f) makes it clear that whoever commits rape on a 4 woman when she is under 12 years of age shall be punished with RI for a term which shall not be less than 10 years but which may be for life and shall also be liable to fine. Proviso appended to sub-section (2) makes it clear that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years. 8) It is clear from the above statutory provision that for the offence of rape on a girl under 12 years of age, punishment shall not be less than 10 years but which may extend to life and also to fine shows that the legislature intended to adopt strictness in awarding sentence if the victim is below 12 years of age. No doubt, the proviso to Section 376(2) lays down that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years. It is settled law that courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. In the absence of any special and adequate 5 reasons, recourse to proviso mentioned above cannot be applied in a casual manner. 9) Learned counsel for the appellant relied on a decision of this Court in Narayanamma (Kum) vs. State of Karnataka and Others, (1994) 5 SCC 728 and contended that the life imprisonment is not warranted and sentence may be reduced to the period already undergone. The said decision relates to the rape on a minor girl aged 14 years. While the trial Judge convicted and sentenced the accused to three years RI, the High Court reversed the same and acquitted the accused. It was challenged before this Court. After considering the entire materials, this Court set aside the order of the High Court and affirmed the conclusion arrived at by the trial Court. Though this Court expressed displeasure in awarding only three years RI for the crime of rape, taking note of length of time, not inclined to enhance it and confirmed the sentence awarded by the trial Court. 10) Counsel for the appellant relied on another decision of this Court in Rajendra Datta Zarekar vs. State of Goa, (2007) 14 SCC 560. The said case also relates to the offence 6 under Section 376. The victim was aged about 6 years and the accused was aged about 20 years. Ultimately, this Court confirmed the conviction and sentence of 10 years as awarded by the High Court. However, the fine amount of Rs. 10,000/- awarded under Section 376(2)(f) being found to be excessive reduced to Rs. 1,000/-. 11) Considering the fact that the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376(2)(f) IPC, we feel that the ends of justice would be met by imposing RI for 10 years. Learned counsel appearing for the appellant informed this Court that the appellant had already served nearly 10 years. 12) Coming to the quantum of fine, in the case on hand, the learned trial Judge has imposed Rs.20,000/-, in default, to undergo RI for three years, learned counsel for the appellant submitted that the accused hails from a poor family and was 7 working as an agricultural labourer and is not in a position to pay such a huge amount as fine which is not disputed by the State. Taking note of all these aspects, we reduce the fine of Rs. 20,000/- to Rs. 1,000/-, in default, to further undergo RI for one month. 13) In view of the above discussion, the conviction imposed on the appellant herein is confirmed. However, the sentence of life imprisonment is modified to RI for 10 years with a fine of Rs.1,000/-, in default, to further undergo RI for one month. 14) With the above modification of sentence, the appeal stands disposed of. ...........................................J. (P. SATHASIVAM) ...........................................J. (J. CHELAMESWAR) NEW DELHI; FEBRUARY 3, 2012. 8

the parameters laid down by this Court for considering grant of bail to an accused include the likelihood of his absconsion and tampering with the evidence or the witnesses or even the investigation. Tampering with the evidence or the investigation is no longer relevant since charge-sheet has already been filed in the case. As far as absconsion is concerned, the Appellant being a sitting MLA, even such a possibility is remote. There is, of course, the possibility that the Appellant may tamper with the witnesses

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.310 OF 2012 (Arising out of SLP(Crl) No.9350 of 2011) SUSANTA GHOSH ... APPELLANT Vs. STATE OF WEST BENGAL ... RESPONDENT O R D E R ALTAMAS KABIR, J. 1. Leave granted. 2. This Appeal is directed against the judgment and order dated 29th September, 2011, passed by the 2 Division Bench of the Calcutta High Court in C.R.M. No.7982 of 2011, which was an application for grant of bail under Section 439 of the Criminal Procedure Code, hereinafter referred to as "Cr.P.C.", in connection with Anandapur Police Station Case No.36 of 2011, dated 6th June, 2011, under Sections 147, 148, 149, 448, 326, 307, 302, 506, 201 and 120-B of the Indian Penal Code read with Sections 25 and 27 of the Arms Act, corresponding to G.R. Case No.1364 of 2011, pending before the learned Chief Judicial Magistrate, Paschim Medinipur. The Appellant had moved the High Court for bail against the order dated 20th August, 2011, passed by the Chief Judicial Magistrate, Paschim Medinipur, rejecting his prayer for bail and remanding him to jail custody. 3. The Appellant is an elected Member of the West Bengal Legislative Assembly. His prayer for bail is based mainly on the ground that on account of 3 political vendetta he has been named as an accused in a First Information Report which was lodged on 5th June, 2011, in respect of an incident which occurred on 22nd September, 2002, and in respect whereof three separate FIRs had been lodged, two on the date of incident itself and one on 26th September, 2002, in which he had not been named. The first FIR was lodged by one Nemai Ch. Sarkar, which was recorded as FIR No.59 dated 22nd September, 2002 of Keshpur PS, Paschim Medinipur, under Sections 148, 149, 307 and 302 IPC read with Sections 25, 27 and 35 of the Arms Act as also Section 9(b) of the Indian Explosives Act. 4. The second FIR was lodged by one Shri Debashish Roy, the Station House Officer of Keshpur Police Station, on the same day and in respect of the same incident, which was recorded as FIR No.60 dated 22nd September, 2002, under similar provisions. 4 5. The third FIR was lodged by the daughter of the deceased, Smt. Chandana Acharya, which was recorded as Keshpur PS Case No.61 dated 26th September, 2002, under Sections 148, 149, 448, 326, 307, 364 and 506 IPC read with Sections 25 and 26 of the Arms Act. 6. As will be apparent from the three FIRs, the first two related to the incident in which seven persons, including the father of the third complainant, Ajoy Acharya, were killed at Piyasala Village and their bodies were removed to and buried at Daser Bandh, Keshpur. As indicated hereinabove, in none of the above FIRs was the Appellant named, nor was he included in the charge-sheets which were filed. 7. The cases which arose out of the first two FIRs in which charge-sheets were filed under Sections 148, 149, 302 IPC and also under Sections 448, 364 and 506 IPC, ended in acquittal of the accused 5 persons who were alleged to have committed the offences complained of. The third case is, however, still pending trial before the learned Additional Sessions Judge, Paschim Medinipur. 8. From amongst a number of skeletons which were recovered from a grave in Daser Bandh, Keshpur, one of the skeletons was identified by one Shyamal Acharya, the younger son of the deceased, on the strength of the clothes which were recovered, together with a set of teeth, which were identified to be that of the deceased, Ajoy Acharya. It is thereafter that the fourth FIR was lodged by Shri Shyamal Acharya, being Anandapur P.S. Case No.36 of 6th June, 2011, in which 40 persons were named as accused and the name of the Appellant was shown at serial No.2 and it was alleged that he had entered into a criminal conspiracy with the other accused persons in order to cause the deaths of the seven victims, who were allegedly members of the 6 Trinamool Congress. It was further alleged that a peace meeting had been held prior to the incident and the victims were returning to their homes upon the assurance that had been given in the meeting that peace would be maintained by the local villagers. The further allegation was that under the directions of the Appellant, the seven victims were targeted and dragged out of their homes and were killed upon his instructions. Thereafter, the bodies were carried to different places and ultimately buried at Daser Bandh in Keshpur, from where the skeletons were recovered. 9. Mr. Ranjit Kumar, learned Senior Advocate, who appeared on behalf of the Appellant, Mr. Susanta Ghosh, urged that with the change in the Government in the State of West Bengal, the Appellant, who is a M.L.A. of the Communist Party of India (Marxist) and a former Minister, is being targeted after an interval of nine years in order to discredit and 7 humiliate him and to adversely affect his political career. It was further submitted that nothing prevented the prosecution or even the heirs of the victim, including his daughter, Smt. Chandana Acharya, who had earlier lodged FIR No.61 dated 25th September, 2002, or the younger son, Shri Shyamal Acharya, who had lodged the fourth FIR, from coming out with the allegation against the Appellant earlier. Mr. Ranjit Kumar submitted that not only was the delay in lodging the FIR, in which the Appellant was indicted, fatal to the prosecution case, but gave rise to a strong suspicion that it was motivated. Mr. Ranjit Kumar also submitted that before the Division Bench of the Calcutta High Court, the Appellant had been granted the benefit of anticipatory bail which was subsequently not extended by the learned trial Judge, who remanded the Appellant to police custody, and, thereafter, bail has been refused. 8 10. Mr. Ranjit Kumar submitted that the parameters for grant of bail have been laid down by this Court in various cases and this Court has indicated as to when bail could be refused in respect of cognizable offences, such as, if there were : (i) chances of tampering with the evidence; (ii) chances of interfering with the investigation; and (iii)chances of absconsion; 11. Mr. Ranjit Kumar submitted that as far as the first two instances are concerned, since charge- sheet has already been filed, the same do not survive. Furthermore, since the Appellant is a sitting MLA and a former Minister in the West Bengal Government, there was no chance of his absconsion. 9 12. Mr. Ranjit Kumar submitted that this is a fit case for grant of bail to the Appellant. 13. Strongly opposing the Appellant's prayer for bail, Mr. Gopal Subramanium, learned Senior Advocate, submitted that the offences alleged to have been committed by the accused, including the Appellant, were highly disturbing and had caused a serious law and order situation and had also spread panic amongst the people of the area. Mr. Subramanium submitted that apart from being grievous, as well as heinous in nature, the crimes were committed pursuant to a well-conceived conspiracy which had been hatched under the leadership of the Appellant herein. Mr. Subramanium submitted that although the name of the Appellant had not figured in the earlier FIRs, his complicity in the murder of the seven victims had been subsequently established by witnesses who had witnessed the incident and had maintained that the 10 Appellant had been present throughout, until the dead bodies were buried, giving rise to an additional charge under Section 201 IPC. 14. Mr. Subramanium submitted that having regard to the grievous and appalling nature of the crime, right from when the murders were committed, till the concealment of the bodies by burying them, the question of granting bail to the Appellant does not arise, especially when charge-sheet has been filed against him and the matter is ready for trial. Learned counsel submitted that the prayer made on behalf of the Appellant for grant of bail was liable to be rejected. 15. Having considered the submissions made on behalf of the respective parties, we are inclined to allow the Appellant's prayer for bail. Admittedly, two FIRs in respect of the same incident were lodged on the same day, while the 11 third FIR was lodged a few days later. The first FIR was lodged by one Nemai Ch. Sarkar, a local man. The second FIR was lodged by the S.H.O. of the Keshpur Police Station and the third FIR was lodged by the daughter of the deceased Ajoy Acharya. 16. There is no mention of the Appellant's name or alleged role in the incident. There was nothing to prevent at least Smt. Chandana Acharya, the daughter of the deceased, from naming him. Whether the investigating authorities took notice of the same is an entirely different matter. At this stage it will not be proper for us to dilate any further on the factual aspect of the matter, but at least for the purpose of considering the Appellant's prayer for bail it does merit consideration that the Appellant has been arrested in connection with a FIR lodged 9 years after the incident. During all these years there is no 12 allegation that the Appellant has interfered with the investigation. Furthermore, in connection with this case he was also granted anticipatory bail. There is nothing to indicate that such privilege was either abused or misused by the Appellant. 17. As indicated hereinabove, the parameters laid down by this Court for considering grant of bail to an accused include the likelihood of his absconsion and tampering with the evidence or the witnesses or even the investigation. Tampering with the evidence or the investigation is no longer relevant since charge-sheet has already been filed in the case. As far as absconsion is concerned, the Appellant being a sitting MLA, even such a possibility is remote. There is, of course, the possibility that the Appellant may tamper with the witnesses. However, considering the fact that the matter has been reopened as far as the Appellant is concerned, after an interval of about 10 years, even such a 13 possibility appears to be remote. However, in order to prevent such an eventuality, the Appellant can be put on terms, as was done by the High Court while allowing his prayer for Anticipatory Bail. 18. We, therefore, allow the appeal and direct that the Appellant be released on bail to the satisfaction of the trial Court. The trial Court may impose such conditions as may be necessary to secure the Appellant's presence during the trial. In addition to the above, except for Garhbeta, which is his Assembly Constituency, the Appellant shall not enter other areas of Paschim Medinipur District, West Bengal, without the permission of the trial Court and shall report to the local police station where he will be residing, once on the last Sunday of each month, between 11.00 a.m. and 1.00 p.m. The Appellant shall make himself available before the trial Court at all stages of the trial, unless for any special 14 reason he is exempted from doing so by the trial Court on any particular occasion. 19. The appeal is disposed of accordingly. ...................................................J. (ALTAMAS KABIR) ...................................................J. (GYAN SUDHA MISRA) New Delhi Dated: 03.02.2012

The Corporation is having its duty free shops at all major International Airports in India. At the said duty free shops, the appellant sells several articles including liquor to foreigners and also to Indians, who are going abroad or coming to India by air. We are concerned with a duty free shops situated at an International Airport at Bengaluru. The appellant is registered as a dealer under the Act as well as under the Central Sales Tax Act, 1956 (hereinafter referred to as `the Central Act'). In the return filed under the Act as well as under the Central Act for the relevant period, the appellant had stated that though liquor, cigarettes, perfumes and food articles were sold at the duty free shops at the Bengaluru International Airport, no tax was payable by the appellant as the goods which had been sold at the duty free shops were sold directly to the passengers and even the delivery of goods at the duty free shops was made before importing the goods or before the goods had crossed the customs frontiers of India.=Transfer of documents of title to the goods is one of the methods whereby delivery of the goods is effected. Delivery may be physical also. =In our opinion, submissions with regard to sale not taking effect by transfer of documents of title to the goods are absolutely irrelevant. Transfer of documents of title to the goods is one of the methods whereby delivery of the goods is effected. Delivery may be physical also. In the instant case, at the duty free shops, which are admittedly outside the customs frontiers of our country, the goods had been sold to the customers by giving physical delivery. It is not disputed that the goods were sold by giving physical possession at the duty free shops to the customers. Simply because the sales had not been effected by transfer of documents of title to the goods and the sales were effected by giving physical possession of the goods to the customers, it would not mean that the sales were taxable under the Act. Thus, we do not agree with the aforestated submissions made by the learned counsel appearing for the Revenue. 32. Looking to the aforestated clear and settled legal position, we allow the appeal and quash the order of assessment so far as the transactions which are the subject matter of this litigation are concerned. There shall be no order as to cost.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2560 OF 2010 M/S HOTEL ASHOKA ...APPELLANT (INDIAN TOUR.DEV.COR.LTD.) VERSUS ASSISTANT COMMISSIONER OF COMMERCIAL TAXES & ANR. ....RESPONDENTS WITH CIVIL APPEAL NOs. 10404-10412 OF 2010 J U D G M E N T ANIL R. DAVE, J. CIVIL APPEAL NO. 2560 OF 2010 1. In this appeal, an order dated 9th June, 2009 passed by the High Court of Karnataka, in Writ Appeal No. 881 of 2009 (T-CST) is challenged by the 2 appellant, who is an assessee and registered as a dealer under the provisions of the Karnataka Value Added Tax Act, 2003 (hereinafter referred to as `the Act'). Facts giving rise to the present litigation in a nutshell are as under: 2. The appellant, M/s Hotel Ashoka, is managed by India Tourism Development Corporation Limited (hereinafter referred to as `the Corporation'). The Corporation is having its duty free shops at all major International Airports in India. At the said duty free shops, the appellant sells several articles including liquor to foreigners and also to Indians, who are going abroad or coming to India by air. We are concerned with a duty free shops situated at an International Airport at Bengaluru. The appellant is registered as a dealer under the Act as well as under the Central Sales Tax Act, 1956 (hereinafter referred to as `the Central Act'). In the return filed under the Act as well as under the Central Act for the relevant period, the appellant had stated that though liquor, cigarettes, perfumes and food articles were sold at the duty free shops at the Bengaluru International Airport, no tax was payable by the appellant as the goods which had been sold at the duty free shops were sold directly to the passengers and even the delivery of goods at the duty free shops was made before importing the goods or before the goods had crossed the customs frontiers of India. 3 3. According to the appellant, no tax can be levied under the Act or under the Central Act when the goods are sold in the course of import or before the goods have crossed the customs frontier of India as per the provisions of Section 5 of the Central Act and so far as the Act is concerned, no tax can be levied, if the sale takes place before the goods crosses the customs frontiers of India as no State can tax the sale or purchase of goods which are outside the concerned State i.e. the State of Karnataka in the instant case, as per the provisions of Article 286 of the Constitution of India. In spite of the above stand of the appellant, the Assistant Commissioner of Commercial Taxes (Transition -12) Bengaluru, by an assessment order dated 28th May, 2008 directed the appellant to pay a sum of Rs.4,20,70,900/- by way of sales tax. 4. Being aggrieved by the assessment order passed by the Assistant Commissioner of Commercial Taxes Bengaluru, the appellant filed W.P.(C) No. 10989 of 2008 in the High Court of Karnataka which was rejected on 11th February, 2009, on the ground that the appellant had not exhausted equally efficacious alternative remedy available to it under the provisions of the Act. The learned Single Judge did not consider merits of the case for the aforestated reason. 4 5. Being aggrieved by the view expressed by the learned Single Judge, the appellant preferred Writ Appeal No. 881 of 2009(T-CST) before the Division Bench of the High Court which was also dismissed on 9th June, 2009 as the Division Bench found substance in the observations made by the learned Single Judge, hence the appellant has filed this appeal before this Court. 6. Learned counsel appearing for the appellant drew our attention to the provisions of Article 286 of the Constitution and Section 5 of the Central Act. He submitted that the Constitution does not permit any State to impose tax on sale or purchase of goods where such sale or purchase takes place outside the State or in the course of the import of the goods into or export of the goods out of the territory of India. 7. He further submitted that in the instant case, all sales had taken place at the duty free shops of the appellant before the goods had crossed the customs frontiers of India. He stated that the goods, which are the subject matter of the present litigation were brought in India and had been kept at bonded warehouses and thereafter they were transported to duty free shops which were outside the customs frontiers of India. 5 8. He further submitted that till the goods cross the customs frontiers of India, technically the goods are considered to have remained outside India and once the sale or purchase of the goods which takes place in the course of import or export or outside the concerned State, according to the provisions of Article 286 of the Constitution, no State can impose any tax on such a sale or purchase. As the duty free shops of the appellant are outside the customs frontiers of India, as per legal fiction, the sale of goods cannot be said to be in any State but technically such a sale would be considered to be in the course of import of the goods and, therefore, the sale effected at the duty free shops of the appellant cannot be taxed under the Act. 9. He further submitted that all the duty free shops of the appellant are in customs area as defined under Section 2(11) of the Customs Act, 1962 (in short the `Customs Act'). According to the said definition, `customs area' is the area of a customs station and it includes any area in which imported goods or export goods are ordinarily kept before clearance by Customs Authorities. According to him, the goods can be said to have been imported only after sale of the goods at duty free shop to a passenger, if the passenger brings the goods in India, after crossing the customs frontiers of India and not before that, because import means bringing of goods into India from a place outside India and as the duty free shops are in customs area, and as the 6 goods are sold before clearance of Customs Authorities, it cannot be said that the goods sold by the duty free shops were sold after they were imported or in Karnataka State. 10. For the aforestated reasons, according to him, the assessment order passed by the Assistant Commissioner of Commercial Taxes, Bengaluru dated 28th May, 2008 is bad in law. According to the learned counsel, the said officer had committed a grave error by treating the sale at duty free shops as sale after import of the goods in the State of Karnataka. 11. He further submitted that the learned Single Judge as well as the Division Bench of the High Court ought not to have passed orders against the appellant as the appellant had not exhausted equally efficacious alternative statutory remedy. He submitted that the issue involved in the litigation had already been decided by this Court and other High Courts and the legal position was so clear that the appellant ought not to have been asked to exhaust alternative statutory remedy. He submitted that when facts were not in dispute and the law had been settled by this Court in several other cases, it was not proper on the part of the learned Single Judge to dispose of the petition only on the ground that the alternative remedy had not been exhausted. He also submitted that the Division Bench also committed an error by confirming the order passed by the learned Single 7 Judge of the High Court. So as to substantiate his submission, the learned counsel relied upon several judgments including the judgments delivered in the cases of State of Travancore-Cochin and others v. Bombay Company Ltd. Alleppey [AIR 1952 SC 366], State of Travancore-Cochin and others v. Shanmugha Vilas Cashewnut Factory Quilon [AIR 1953 SC 333], J.V. Gokal & Co. (Private) Ltd. v. Assistant Collector of Sales Tax (Inspection) and Others [AIR 1960 SC 595] and in Kiran Spinning Mills v. Collector of Customs [AIR 2000 SC 3448]. 12. On the other hand, learned senior counsel Shri Bhat and Shri Sharma, assisted by learned counsel Shri Qadri appearing for the respondent-State, mainly submitted that the orders passed by the learned Single Judge as well as by the Division Bench of the High Court are just and proper. They submitted that the High Court rightly did not entertain the petition as the appellant had not challenged the validity of the order before the appellate authority appointed under the Act. They submitted that the Act has set up appellate authorities and according to the provisions of the Act, an order passed by the assessing officer should be first challenged before the first appellate authority and only after all the remedies under the Act are exhausted, the appellant should have approached the High Court. As the statutory remedies had not been exhausted by the appellant, according to the 8 learned counsel, the High Court had rightly dismissed the appeal by confirming the order passed by the learned Single Judge. 13. On merits they submitted that purchase of the goods at the duty free shops of the appellant would be taxable under the provisions of the Act. They submitted that after purchase of the goods at the duty free shops, passengers enter the country by crossing the customs frontiers. The goods were actually delivered to the customers and sales were not effected by transfer of documents of title to the goods and, therefore, it can not be said that no tax could have been levied on the sales effected at the duty free shops. According to them, crossing of customs frontiers had no significance because once the goods are brought into our country and especially in the State of Karnataka, all sales effected in the State of Karnataka would be subject to tax as per the provisions of the Act. The duty free shops situated at Bengaluru International Airport are situated in the State of Karnataka and, therefore, sales effected at the said shops would be taxable under the provisions of the Act. 14. They further submitted that according to Section 5 of the Central Act, the sales which caused import or which occasioned import would not be 9 subject to tax under the Act. According to them, all these transactions referred to in the assessment order had not taken place in the course of import or they had not caused or occasioned import, and, therefore, they would be subject to tax under the Act. They further submitted that the goods had not been sold by transferring the documents of title to the goods. According to them, before the goods had crossed the customs frontiers, they ought to have been transferred by transfer of documents of title to the goods, but as it was not done so, it cannot be said that the sales had taken place in the course of import of the goods before crossing the customs frontiers of our country. So as to substantiate the aforestated submissions, they relied upon the judgments in K. Gopinathan Nair and Others v. State of Kerala [(1997) 10 SCC 1], Binani Bros. (P) Ltd. v. Union of India and Others [(1974) 1 SCC 459], Mohd. Serajuddin & Ors. v. State of Orissa [(1975) 2 SCC 47]. 15. In the circumstances, they submitted that the appeal be dismissed with costs and the stay granted by this Court be vacated. 10 16. We heard the learned counsel at length and considered the impugned order of assessment as well as the orders passed by the High Court of Karnataka and the judgments referred to by the learned counsel. 17. In our opinion, the facts stated by the counsel are not much in dispute. 18. It is an admitted fact that the goods which had been brought from foreign countries by the appellant had been kept in bonded warehouses and they were transferred to duty free shops situated at International Airport of Bengaluru as and when the stock of goods lying at the duty free shops was exhausted. It is also an admitted fact that the appellant had executed bonds and the goods, which had been brought from foreign countries, had been kept in bonded warehouses by the appellant. When the goods are kept in the bonded warehouses, it cannot be said that the said goods had crossed the customs frontiers. The goods are not cleared from the customs till they are brought in India by crossing the customs frontiers. When the goods are lying in the bonded warehouses, they are deemed to have been kept outside the customs frontiers of the country and as stated by the learned senior counsel appearing for the appellant, the appellant was selling the goods from 11 the duty free shops owned by it at Bengaluru International Airport before the said goods had crossed the customs frontiers. 19. Thus, before the goods were imported in the country, they had been sold at the duty free shops of the appellant. 20. In view of the aforestated factual position and in the light of the legal position stated hereinabove, it is very clear that no tax on the sale or purchase of goods can be imposed by any State when the transaction of sale or purchase takes place in the course of import of goods into or export of the goods out of the territory of India. Thus, if any transaction of sale or purchase takes place when the goods are being imported in India or they are being exported from India, no State can impose any tax thereon. 21. Section 5 of the Central Act deals with the transaction which is said to have taken place in the course of import or export. Relevant portion of Section 5 of the Central Act reads as under: 12 "5(1) xxx xxx xxx (2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before goods have crossed the customs frontiers of India." 22. Upon perusal of the aforestated provision of Section 5 of the Central Act, it is clear that a sale or purchase of goods shall be deemed to take place in the course of import of the goods into the territory of India only if sale or purchase takes place before the goods have crossed the customs frontiers of India. 23. Looking to the aforestated legal position, it cannot be disputed that the goods sold at the duty free shops, owned by the appellant, would be said to have been sold before the goods crossed the customs frontiers of India, as it is not in dispute that the duty free shops of the appellant situated at the 13 International Airport of Bengaluru are beyond the customs frontiers of India i.e. they are not within the customs frontiers of India. 24. If this is the factual and legal position, in our opinion, looking to the provisions of Article 286 of the Constitution, the State of Karnataka has no right to tax any such transaction which takes place at the duty free shops owned by the appellant which are not within the customs frontiers of India. 25. Looking to the aforestated simple and factual legal position, in our opinion, it would not be much useful to discuss the judgments which have been referred to by the learned counsel appearing for the appellant. In our opinion, the legal position is so clear that it was not necessary for the learned counsel to refer to any judgment and merely by showing the aforestated factual aspects and legal provisions to the concerned authority, the appellant could have convinced the concerned authority that the sale effected at the duty free shops of the appellant could not have been taxed by the State of Karnataka. 14 26. Learned counsel appearing for the respondent-Authorities had vehemently submitted that the appellant had not exhausted equally efficacious alternative statutory remedy and, therefore, the Single Judge of the High Court had rightly not entertained the petition filed by the appellant. 27. According to them, the Division Bench had also rightly dismissed the appeal for the same reason. According to them, this Court also should not entertain this appeal. 28. It is true that the appellant had rushed to the High Court without exhausting equally efficacious alternative statutory remedy. In our opinion, the learned Single Judge of the High Court was also right when he directed the appellant to move the statutory appellate authority. In normal circumstances, even we would have expressed the same opinion but looking to the fact that the special leave petition has already been admitted and the matter pertains to the assessment year 2004-2005, it would not be in the interest of the justice to relegate the appellant to the statutory authorities especially when the legal position is very clear and the law is also in favour of the appellant. 15 29. The learned counsel appearing for the respondent had submitted that the sale would not be subject to tax under the Act only if it occasions in the course of import but the transactions of sale, which are subject matter of this litigation had not taken place in the course of import and, therefore, they would not be exempted under the provisions of Section 5 of the Central Act. In our opinion, the aforestated submission cannot be sustained. 30. They again submitted that `in the course of import' means `the transaction ought to have taken place beyond the territories of India and not within the geographical territory of India'. We do not agree with the said submission. When any transaction takes place outside the customs frontiers of India, the transaction would be said to have taken place outside India. Though the transaction might take place within India but technically, looking to the provisions of Section 2(11) of the Customs Act and Article 286 of the Constitution, the said transaction would be said to have taken place outside India. In other words, it cannot be said that the goods are imported into the territory of India till the goods or the documents of title to the goods are brought into India. Admittedly, in the instant case, the goods 16 had not been brought into the customs frontiers of India before the transaction of sales had taken place and, therefore, in our opinion, the transactions had taken place beyond or outside the custom frontiers of India. 31. In our opinion, submissions with regard to sale not taking effect by transfer of documents of title to the goods are absolutely irrelevant. Transfer of documents of title to the goods is one of the methods whereby delivery of the goods is effected. Delivery may be physical also. In the instant case, at the duty free shops, which are admittedly outside the customs frontiers of our country, the goods had been sold to the customers by giving physical delivery. It is not disputed that the goods were sold by giving physical possession at the duty free shops to the customers. Simply because the sales had not been effected by transfer of documents of title to the goods and the sales were effected by giving physical possession of the goods to the customers, it would not mean that the sales were taxable under the Act. Thus, we do not agree with the aforestated submissions made by the learned counsel appearing for the Revenue. 32. Looking to the aforestated clear and settled legal position, we allow the appeal and quash the order of assessment so far as the transactions which are the subject matter of this litigation are concerned. There shall be no order as to cost. 17 CIVIL APPEAL NOs. 10404-10412 OF 2010 33. As issues involved in the aforestated appeals and in Civil Appeal No.2560 of 2010 are same, for the reasons recorded in the judgment rendered in Civil Appeal No. 2560 of 2010, these appeals also stand allowed and the assessment orders, so far as they pertain to the subject matter of these appeals are concerned, are quashed. There shall be no order as to costs. ................................................J. (D.K. JAIN) ....................................................J. (ANIL R. DAVE) New Delhi February 3, 2012.

whereby the High Court has allowed the Interlocutory application filed by the first respondent herein, and directed the District Returning Officer, Distt. Papum Pare, Arunachal Pradesh to produce the record of Register of voters' counterfoils (in Form 17A) of 38 polling stations of 13-Itanagar (ST) Assembly Constituency in that State.=an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas.=The impugned judgment has relied upon the judgment of this Court in Fulena Singh (supra). In that matter also there was an allegation of double voting, and the inspection of register of voters in Form 17-A was sought. In para 13 of the judgment the Court noted the submission on behalf of the respondent that the registers of voters in Form 17-A do not enjoy the same immunity as that of the other papers mentioned in clauses (a) to (d) and (e) of Rule 93 (1). This Court did not accept that submission, and held that inspection of election papers mentioned in detail in the entire Rule 93 (1) is not a matter of course unless a clear case is made out. The Court, therefore, disallowed the inspection of register of voters in Form 17-A. Thus, the reliance on Fulena Singh (supra) in the impugned judgment was also wholly erroneous 25. This being the position, in our view the order passed by the learned Single Judge is illegal and unsustainable. We are, therefore, required to set-aside the same. 26. Accordingly, we pass the following order:-

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 1539 OF 2012 @ SLP No. 30410 OF 2010 Markio Tado ... Appellant Versus Takam Sorang & Ors. ... Respondents J U D G E M E N T H.L. Gokhale J. Leave granted. 2. This appeal is directed against the Judgment and Order dated 14.9.2010 passed by a Learned Single Judge of Gauhati High Court in Misc. Case (E.P.) No. 05(AP)/2010 in Election Petition No. 01(AP)/2009 whereby the High Court has allowed the Interlocutory application filed by the first respondent herein, and directed the District Returning Officer, Distt. Papum Pare, Arunachal Pradesh to produce the record of Register of voters' counterfoils (in Form 17A) of 38 polling stations of 13-Itanagar (ST) Assembly Constituency in that State. 2 Brief facts leading to this appeal are as follows:- 3. The appellant and the respondent No. 1 herein contested the election to the Arunachal Pradesh Legislative Assembly from 20-Tali (ST) Assembly Constituency held in October 2009, wherein the appellant was declared elected, defeating his nearest rival respondent No. 1, by 2713 votes. Respondent No. 1 filed Election Petition No. 01/2009 to challenge the election of the appellant on the ground of corrupt practice of booth capturing. This 20-Tali (ST) Assembly Constituency consists of two circles viz. (i) Tali, and (ii) Pipsorang. Each of the circles was having 10 polling stations. The voting had taken place on 13.10.2009. It was alleged that on two polling stations viz. (i) 7-Roing and (ii) 2-Ruhi from circle Tali, boxes (containing EVMs) were illegally removed by the party workers of the appellant, and votes in favour of the appellant were cast by a single hand. The common voters were not allowed to exercise their voting rights as they were threatened for their lives by the miscreants of the appellant. It was claimed that polling agents of the first respondent at these two polling stations jointly reported about the happenings in these polling stations on 15.10.2009 to the Assistant Returning Officer. It was alleged that such incidents also took place on 6 more polling stations. In para 9 of the petition, it was stated that, it was necessary to bring the EVMs and counter foils of Form 17A (register of voters) of these 8-polling stations (mentioned in para-7 of the petition) for forensic test and other examination etc. before the Hon'ble Court for proper adjudication of the case. It was stated that the votes received by the appellant in these 8 polling stations were 3763, and if they were deleted from the votes of appellant, the first respondent would be declared as 3 elected. It was prayed that the records of (i) register of voters counterfoils (Form 17-A) of these 8 polling stations described in paragraph 7 of the petition, (ii) EVMs of these 8 polling stations, and (iii) records relating to 20 Tali (ST) Assembly Constituency be called, and appellant be directed to show cause as to why those votes cast by booth capturing in 8 polling stations in favour of the appellant should not be declared as illegal, and the election order dated 22.10.2009 be not declared as void, and why the respondent No. 1 should not be declared as elected candidate. 4. The appellant contested this petition by filing a Written Statement. He submitted that no unfair means were employed by him, or by his agents, and stated that the allegation of illegal practice adopted in 8 polling stations is completely false. He submitted that the election was conducted peacefully with free and fair means. The polling stations were guarded by police personnel who carried arms and ammunitions. There was no booth capturing or criminal intimidation at all. EVMs and voters' counterfoils were duly verified at the Receiving Centre, and there was no need to call for any of these documents, nor was there any question to declare the election void. 5. The learned Judge framed the necessary issues on 8th March, 2010 including as to whether the EVMs were illegally removed, whether any election offence of booth capturing and criminal intimidation was committed, whether the election was liable to be declared void under Section 100 of the Representation of the People Act, 1951 ("Act of 1951" or the said Act for short) and whether the first respondent was entitled to be declared as duly elected? 4 6. Before the evidence could start, the first respondent filed Interlocutory Application No. 6/2010 in the said Election Petition on 29th March, 2010. In para 1 thereof he submitted as follows:- "1. That your applicants beg to state and submit that some thousand of voters of those 8 polling stations viz. (i) Giba, (ii) Tungmar, (iii) 15-Richik, (iv) 7-Roing, (v) 10-Yarda, (vi) 5- Guchi, (vii) 8-Dotte, (viii) 2-Ruhi of 20 Tali (ST) Assembly Constituency have double entry in different 38 polling stations of 13-(ST) Itanagar Assembly Constituency. So far your applicant knowledge is concerned about 80% of the voters of 20-(ST) Tali Assembly Constituency from those 8 polling stations viz. (i) 6- Giba, (ii) 4-Tugnmar, (iii) 15-Richik, (iv) 7-Roing, (v) 10-Yarda, (vi) 5-Guchi, (vii) 8-Dotte, (viii) 2-Ruhi have cast their votes at 13-(ST) Itanagar Assembly Constituency and not at 20-(ST) Tali Constituency." Thereafter, he gave the list of 38 polling stations of Itanagar constituency. He claimed that the total number of such voters who had their names in those 38 polling stations was 1304. He, therefore, prayed that the record of register of voters counterfoils (Form 17-A) of the above 38 polling stations of 13- (ST) Itanagar Assembly Constituency from the District Returning Officer, Distt. Papum Pare be called. 7. The appellant opposed this application. The learned Single Judge noted the submissions on behalf of the respondent No. 1. He also noted the submissions on behalf of the appellant that there was no allegation of double enrollment, and no issue had been framed in this respect in the election petition, and therefore the application was liable to be dismissed. Having noted the submissions, the learned Single Judge rejected the said application by his order 5 dated 31.03.2010 observing "I am of the considered view that calling of records as sought for by the applicant is not justified at this stage." 8. Thereafter, the evidence was recorded. The first respondent went into the witness box on 4th April, 2010 and in his examination in chief, he stated that he had sent a fax message to the Returning Officer of 20-Tali (ST) Assembly Constituency on 15.10.2009 alleging the booth capturing of 2-Ruhi and 7-Roing polling stations. He stated that he had complained about the booth capturing in 6 more polling stations and produced copies of complaints. He stated that there was single handed voting in favour of the appellant, and respondent's voters were threatened and not allowed to cast their votes. He further stated that a large number of voters had double entries in the electoral roll of 20 Tali (ST) as well as Itanagar (ST) Assembly Constituency. They had actually cast their votes at 38 different polling stations of 13-(ST) Itanagar Assembly Constituency, and in their place votes were cast in Tali Constituency by the miscreants of the appellant. The electoral rolls of the two constituencies were to be exhibited. He further pointed out that a vote was cast against a dead person by name Markio Tama from 2-Ruhi polling station and the death certificate of the person concerned was produced. 9. In his cross examination on 9th June, 2010, the first respondent accepted that he had not made any averments in the election petition regarding double enrollment of the voters in the two Assembly Constituencies. He accepted that he was aware that the final electoral rolls were published by the authorities concerned before the election was held, prior to which the draft roll was published for information of the voters concerned, and that he did not lodge any complaint 6 before the authorities concerned about the double enrollment in the two constituencies. He explained it by stating that he did not know that such double enrollment had taken place. He could not say who actually cast the vote for Markio Tama, who had already expired. He accepted that he had appointed his polling agents for all the polling stations. He knew about the duties of the polling agents which included raising objection in case of detection of any impersonation during the polling time, before the Presiding Officer concerned by filling up a prescribed form alongwith a fee of Rs. 2/-. He stated that his polling agents were not allowed to enter into the polling booths and the candidates appointed by the appellant acted as fake polling agents for the first respondent. He however, accepted that he has not stated in election petition that the candidates appointed by the opposite party had acted as fake polling agents for him. He further accepted that his complaint to the Returning Officer did not mention all the 8 polling stations. It mentioned only about 2 polling stations. He also accepted that he did not mention the names of persons involved in booth capturing. The first respondent had alleged that in two polling stations viz. Ruhi and Roing, booth capturing had taken place which was on the basis that in Ruhi the first respondent got only 3 votes as against appellant getting 697 votes and in Roing he got only one vote as against the appellant getting 1196 votes. On this aspect it was put to him that there were two circles in this constituency viz. Tali and Pipsorang. The above two polling stations were in Tali Circle. The first respondent accepted that the returned candidate secured no vote in 11-Vovia polling station. He also accepted that the returned candidate secured only 7 7 votes in 13-Zara polling station, both falling in Pipsorang circle. Thereafter, he accepted that "It may be correct that securing less vote by a candidate may be due to his less attachment to the people of a particular area and it may also be the one of the reasons for losing the election." The first respondent also accepted that Micro Observers were appointed in all the polling stations and they were provided with digital camera for their use as and when required during election for all the purposes. 10. It was at that stage that the first respondent moved another application viz. Mis Case No. 05(AP) of 2010 on 29th June, 2010. In that application he repeated that some of the voters of the 8 polling stations mentioned earlier, had double entries in different 38 polling stations of 13 Itanagar (ST) Assembly Constituency. In para 2 he stated that 30% of voters of Tali Constituency from those 8 polling stations had cast their votes in Itanagar and not in Tali, and in their place the double voting was effected on behalf of the appellant, and therefore it was necessary to get the record of the voters' counterfoils (in Form 17A) from the 38 polling stations under 13-(ST) Itanagar Assembly Constituency. The appellant opposed this application. The counsel for the appellant submitted that this was a fishing inquiry to improve the case. The learned Single Judge however observed: "This allegation sounds to be new one, but when it is closely examined, it also comes under the purview of booth capturing because votes by impersonation is one of the modus operandi adopted towards accomplishment of securing votes by use of illegal method or illegal resource". 8 11. The learned Judge referred to a judgment of this Court in Hari Ram Vs. Hira Singh reported in AIR 1984 SC 396, that electoral rolls and counter foils should be called sparingly and only when sufficient material is placed before the Court. He also referred to a judgment of this Court in Fulena Singh Vs. Vijoy Kr. Sinha reported in 2009(5) SCC 290 wherein it was held that inspection of register of voters in Form 17-A would be permissible where a clear case is made out. The learned Single Judge held that the official record would be the most reliable evidence where there was impersonation, and thereafter passed the impugned order calling for the record of registers of voters counterfoils in form 17A of 38 polling stations of 13-(ST) Itanagar Assembly Constituency which order is challenged in the present appeal. Submissions on behalf of the rival parties 12. Mr. Giri, learned senior counsel appearing for the appellant submitted that the learned Judge of the High Court clearly erred in allowing the second application filed by the first respondent for the simple reason that he was making a roving and fishing inquiry. Mr. Giri submitted firstly that if the respondent No.1 was concerned with the alleged double entries of the voters in the two constituencies, he ought to have challenged the double enrollment when the draft rolls were published. Secondly, this ground of impersonation and double voting was not raised in the election petition at all. Then there were no particulars provided as to whether anybody had seen the real voters not voting, and somebody else voting in their place. Thirdly, he submitted that the application made by respondent No.1 earlier having been rejected, there could not be a second application for that very purpose. 9 Besides, impersonation or double voting would come in the category of `improper reception of votes' which is a separate category of corrupt practice falling under Section 100 (1) (d) (iii) of the Act of 1951. For invoking this ground one has to plead that the election was materially affected by such improper reception of votes which the first respondent had not done. `Improper reception' is different from `booth capturing' which is a separate corrupt practice under Section 123 (8) read with Section 135 A of the Act of 1951. The first respondent had filed the election petition only on the ground of booth capturing and not on the basis of improper reception of votes and he cannot be permitted to improve upon it from stage to stage. The sanctity and secrecy of the electoral process was important and the same could not be permitted to be violated. 13. Mr. Rakesh Dwivedi, learned senior counsel appearing for the first respondent on the other hand submitted that the first respondent had filed the election petition on the ground of booth capturing, and double voting or impersonation could be considered as facets of booth capturing. The learned Judge could not be faulted for his order since impersonation is a link between the booth capturing and improper reception. If purity of the election process is to be maintained, and if the true result of the election is to be found out, the order which is impugned in the petition was a necessary order. Consideration of the rival submission 14. The order impugned in the present appeal has been passed on the second application in this behalf which was Misc. Case No. 05(AP)/2010 filed on 29th 10 June, 2010 after the recording of the evidence of the first respondent. It is material to note that in his evidence the first respondent did not dispute that he had not made any averment in the election petition regarding double enrollment of some voters of the two constituencies. He also accepted that one has to object to such double entries when that draft electoral roll is published, but he explained his inaction in this behalf by stating that he did not know that such double enrollment had taken place. With respect to impersonation, he cited the instance of only one person, namely Markio Tama who had expired, but he could not state as to who voted in his place. He accepted that the polling agents have to object when such impersonation takes place, but explained inaction of his polling agents by saying that his polling agents were not allowed to enter into the polling booths and the candidates appointed by the opposite party acted as fake polling agents for him. He however, accepted that such plea was not taken in the election petition. He also accepted that his complaint about double voting was only about 2 polling stations, and that he did not mention all the 8 polling stations in his complaint. He had to accept that he did not mention the names of persons involved in the booth capturing. The first respondent had emphasized the fact that in Ruhi he got only 3 votes as against appellant getting 697 votes. In Roing he got only one vote as against appellant getting 1196 votes. He further had to accept that there were two circles in Tali constituency, namely, Tali and Pipsorang. Ruhi and Roing were falling in Tali circle where appellant did get most of the votes. As against that in Pipsorang circle the respondent No.1 got most of the votes. Thus in Vovia polling station, the appellant got no vote at all and if we see the pleadings we find that the first 11 respondent got 365 votes. In Zara polling station, the appellant got only 7 votes as against 335 votes of the first respondent. There are two more noteworthy polling stations. Thus, in Keba polling station the first respondent got 346 votes as against the appellant's one vote, and in Tedung polling station the first respondent got 361 votes as against only 5 votes of appellant. The first respondent had to accept that the securing of less votes may be due to the less attachment of the candidate to the people of a particular area, and may be one of the reasons to loose the election. He has also accepted that there were micro observers in all the polling stations with digital cameras. 15. In this Misc. Case No.05(AP)/2010 the first respondent once again prayed for calling for the voters counterfoils in Form 17-A from 38 polling stations of Itanagar Assembly Constituency. In para 2 of this application he now stated that 30% of the voters' of Tali Constituency from 8 polling stations had cast their votes in Itanagar, and in their place double voting was effected. Thus, in this second application, the first respondent's grievance of such double voting came down from 80% to 30%. The question is as to whether the learned Judge was right in allowing this second application for getting this additional record on the background of the material that had then come on the record. 16. To begin with, one must note that in an election petition, one has to plead the material facts at the outset, and the failure to plead the same is fatal to the election petition. For reference one may see the judgment of a bench of three judges of this Court in Hari Shanker Jain Vs. Sonia Gandhi reported in [2001 (8) SCC 233]. Besides, no evidence can be led on a plea which is not raised in the 12 pleadings and no amount of evidence can cure the defect in the pleadings as held in para 7 of Ravinder Singh Vs. Janmeja Singh reported in [2000 (8) SCC 191]. 17. (i) In the present case the election petition filed by the first respondent made the grievance of booth capturing which is a corrupt practice covered under Section 123 (8) of the Act of 1951. Committing a corrupt practice is a ground to declare an election void under Section 100 (1) (d) of the Act. Booth capturing is also made an offence under Section 135 A of the Act, and the term `booth capturing' is spelt out in the explanation to that section. (ii) Section 135 A alongwith the Explanation reads as follows: 135A. Offence of booth capturing - [(1)] Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which [shall not be less than one year but which may extend to three years and with fine, and where such offence is committed by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine. Explanation - For the purpose of [this sub-section and section 20B], "booth capturing" includes, among other things, all or any of the following activities, namely:- (a) seizure of a polling station or a place fixed for the poll by any person or persons making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of elections; (b) taking possession of a polling station or a place fixed for the poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and [prevent others from free exercise of their right to vote]; (c) [coercing or intimidating or threatening directly or indirectly] any elector and preventing him 13 from going to the polling station or a place fixed for the poll to cast his vote; (d) seizure of a place for counting of votes by any person of persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes; (e) doing by any person in the service of Government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate. (2) An offence punishable under sub-section (1) shall be cognizable. 18. As far as impersonation or double voting is concerned, such actions would amount to improper reception of votes which is a separate ground for declaring an election to be void under Section 100 (1) (d) (iii) of the said Act. This ground was not pleaded in the petition, nor was any issue framed thereon for the trial. As can be seen from the explanation to Section 135 A, the main element of booth capturing is use of force or intimidation. As against that impersonation or double voting involves cheating or deception. Thus, these two grounds deal with two different aspects of corrupt practices. That being the position, the question is as to whether the respondent No.1 could have been permitted to lead any evidence in this behalf without raising the ground in this election petition. This is particularly on the background that the earlier application I.A. No.6/2010 calling for the register of voters' counterfoils (Form 17-A) from the 38 polling stations of Itanagar had not been entertained at that stage under the order dated 31.03.2010 which was prior to recording of evidence. 14 19. The evidence which had come on record clearly showed that the first respondent received overwhelming votes in some polling stations, whereas the appellant received similarly overwhelming votes in other polling stations. The statement of the first respondent that the appellant had appointed fake polling agents for the first respondent was a clear after thought, since if it was so, he would pleaded the same in the election petition itself. He has not mentioned the names of the persons allegedly involved in booth capturing. Even with respect to impersonation, the only instance pointed out was that of one Markio Tama, but it was not stated in the petition or in evidence as to who voted in his place. It is thus obvious that having failed to place any material with respect to either booth capturing or impersonation, the first respondent was trying to make fishing and roving inquiry to improve his case by calling for the record of the voters register from Itanagar Constituency, in support of his grievance of double voting. In the absence of any evidence with respect to the persons who at the instance of the appellant allegedly captured the booths or made double voting or impersonation in Tali Constituency, no such inference could have been drawn against the appellant. The learned Single Judge, therefore, was clearly in error in allowing the second application made by the first respondent. 20. Besides, the ground of improper reception requires a candidate to show as to how the election in so far as it concerns the returned candidate was materially affected, in view of the requirement of Section 100 (1) (d) of the Act of 1951. First respondent has stated that there were some 1304 double entries of voters. The allegation of respondent No.1 on evidence was only with respect to 15 Roing and Ruhi polling station. The votes received by the appellant in both these polling stations put together come to 1873. The appellant has won with a margin of 2713 votes. That being so the second application could not have been entertained even on that ground in the absence of prima facie case that the result of the election had been materially affected. 21. The learned Judge has referred to and relied upon the judgments of this Court in Hari Ram Vs. Heera Singh (supra) and Fulena Singh Vs. Vijoy Kr. Sinha (also supra) to hold that in a rare case an order of production of such record concerning the voters register could be passed. Learned Judge however made no attempt to apply the principles laid down in those cases to the facts of the present one, as can be seen from the narration above. In Hari Ram, (which is a decision of three judges) the situation was almost similar. The High Court had passed an interlocutory order directing the Returning Officer to produce the marked electoral rolls for inspection, which was on the background that the first respondent had won that election by a very small margin of 238 votes. In para 3 of the judgment, this Court accepted the contention on behalf of the appellant as well founded that the High Court erred in allowing the prayers at an interlocutory stage without examining whether proper foundation was laid for inspection which would otherwise result in adversely affecting the secrecy and sacrosanct nature of electoral process. In para 6 of Hari Ram, this Court observed as follows:- "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 Section 165 of the Indian Evidence Act. In doing so with due deference, the High Court overlooked that the Representation of People Act was a special Act 16 and provisions of the Evidence Act or the CPC would only apply where they are not excluded. Thus, at the very outset, with due respect, the approach of the High Court was legally incorrect......." In Hari Ram also there was a grievance that there were a number of dead persons for whom votes were cast. No details and particulars were given that votes were actually cast for dead persons. This Court held that it was nothing but a fishing inquiry and it clearly violated the sanctity and secrecy of the electoral process. 22. (i) Rule 93 of the Conduct of Election Rules, 1961 governs the production and inspection of election papers. Sub-rule 1 thereof is relevant for our purpose and it reads as follows:- "93. Production and inspection of election papers - (1) While in the custody of the district election officer or, as the case may be, the returning officer - (a) the packets of unused ballot papers with counterfoils attached thereto; (b) the packets of used ballot papers whether valid, tendered or rejected; (c) the packets of the counterfoils of used ballot papers; (d) the packets of the marked copy of the electoral roll or, as the case may be, the list maintained under sub- section (1) or sub-section (2) of section 152; and [(dd) the packets containing registers of voters in form 17- A;] (e) the packets of the declaration by electors and the attestation of their signatures; shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the order of a competent court." 17 (ii) Sub-rule (dd) above has been added in this rule by notification dated 24.3.1992. Form 17-A mentioned therein is related to Rule 49 (L) which is concerning the procedure about the voting by voting machines. Sub-rule 1 (a) of Rule 49 (L) requires the polling officer to record the electoral roll number of the elector as entered in the marked copy of the electoral roll in a register of voters which is maintained in Form 17-A. 23. This rule (as it then stood) came to be construed by a Constitution Bench of this Court in Ram Sewak Vs. H.K. Kidwai reported in AIR 1964 SC 1249. This Court held in para 7 as follows:- "7. An order for inspection may not be granted as a matter of course : having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled : (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between parties inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a more allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection." The judgment in Ram Sewak has been followed all through out, and the proposition with respect to inspection have been repeated in a catena of 18 decisions of this Court, namely that inspection of ballot papers and counterfoils should be allowed very sparingly, and only when it is absolutely essential to determine the issue. As held by this Court in Bhabhi Vs. Sheo Govind reported in AIR 1975 SC 2117, 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 materials for declaring the election to be void. 24. The impugned judgment has relied upon the judgment of this Court in Fulena Singh (supra). In that matter also there was an allegation of double voting, and the inspection of register of voters in Form 17-A was sought. In para 13 of the judgment the Court noted the submission on behalf of the respondent that the registers of voters in Form 17-A do not enjoy the same immunity as that of the other papers mentioned in clauses (a) to (d) and (e) of Rule 93 (1). This Court did not accept that submission, and held that inspection of election papers mentioned in detail in the entire Rule 93 (1) is not a matter of course unless a clear case is made out. The Court, therefore, disallowed the inspection of register of voters in Form 17-A. Thus, the reliance on Fulena Singh (supra) in the impugned judgment was also wholly erroneous 25. This being the position, in our view the order passed by the learned Single Judge is illegal and unsustainable. We are, therefore, required to set-aside the same. 26. Accordingly, we pass the following order:- 19 (i) The appeal is allowed. The judgment and order dated 14.09.2010 passed by the learned Single Judge of Gauhati High Court in Misc. Case (E.P.) No.05(AP)/2010 in Election Petition No.01(AP)/2009 is hereby quashed and set- aside. (ii) The Misc. Case (E.P.) No.05(AP)/2010 is hereby dismissed. (iii) Parties will bear their own costs. ........................................J. ( Deepak Verma ) .........................................J. ( H.L. Gokhale ) New Delhi Dated: February 2, 2012