# ' ' DR. ANUP SL'IGH v. SURI ABDUL GHANI AND ANOTHER

- **Citation:** [1965] 1 S.C.R. 38
- **Court:** Supreme Court of India
- **Decided:** 1962-05-30
- **Case number:** Civil Appeals Nos. 141 and 142 of 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-anup-sl-igh-v-suri-abdul-ghani-and-another-3327
- **Pages:** 11

## Headnote

'
'
DR. ANUP SL'IGH
v.
SURI ABDUL GHANI AND ANOTHER
A ugus/ 14, 1964
(P. B.
GAJENDRAGADKAR, C.J., K.
N.
WANCHOO,
A
M. HIDAYATULLAH, J. C. SHAH AND N, RAJAGOPALA
B
AYYANGAR JJ.)
The Rcprew1tatio11 of the People Act (43 of 1951). ss. 81(3) and
90(3)-Scope of.
Conduct of Election Rules, 1%1. r. 73(2) (d)--"Any mark or writing
by which the elector can he id~ntifie,t', meaning of.
The Election Trihunal allowed the periiion ch1llenging the appellant's
election to the Council of States and declared the respondent elected. The
a;,pellant's appeal to the High Court was di•missed.
In his appeal to the
Supreme Court, he contended that ; ( i) the High Court was in error in
not rejecting the election peti_rion under s. 90(3) of the Representation
ol the People Act ( 43 of I ?51)
for non-compliance with the provisions of s. 81(3) of the Act, and (ii) the High Court wa. in error in
rejecting one of the votes \\:hich \V;1s in his favou:-.
HELD; (i) As there was a substantial compliance with s. 81(3),
the petition could not be dismissed under s. 90(3). (41F]
Ch. Subba Ra'J v. Member, Election Tribunal, A.1.R. 1964 S.C. 1027,
followed.
c
0
(ii) As the elector by his- wri1ing on the ballot paper had left sufficient evidence of his identity \vhich could lead to his. identification. the
E
ballot paper was rightly rejc'Cted. (48G]
'fhe words ''any n1ark or writing hy \vhich the elector can be identified" in r. 73(2)(d) of-the Conduct of Election Rules mean something
more than a mere possibility of identification hu:: do not require actual
proof of identification before a vote can be invalidated.
All that these
words require is that there -should be reasonable probability of identification by the mark or writing (other than that pennittcd by r. 37-A) and
if there is such a reasonable probability of idenrifi,:ation, the ballot paper
F
would be invalidated. [44C-E]
Woodward v. Sarson.<, (1875), L.R. 10 C. P. 733; Jsaac1on v. Durant,
(1886) IV O'M & H 34; fl. L. Lawso" v, Colonel Chester Master, (1893),
IV O'M & H 194; He,,ry Ed1.-ard Duk' v. R/ch,,rd Harold, (1911) VI
O'M & H 228. Ll'wi.< v. Shepperdson, (1948] 2 All E.R. 503, Reginald
Pole Blundell v. Joseph Vardon, ( 1907) 4 (Pt. 2) C.L.R. 1463, Kenned.v
v. Palmer, (1907) 4 (Pt. 2) C.L.R. 1481 and Kean v. Kerby (1920} 27
G
C.L.R. 449, referred to.
CrvtL APPH!.ATE ]URISDlCTJON: Civil Appeals Nos. 141 and
142 of 1964.
-
Api:eals from lk judgment and order dated May 30, 1962
of the Punj~b High Court, in F.A.O. Nos. 3.'E and 4/E of 1962.
H
G. S. ·Pathak. Harder Singh, Y. Kumar, Mohinder Narain,
S. N. And/ey, nnd Ramesltwar Na1h, for the appellants.
..
ANUP v. ABDUL GHAN! (Wanchoo J.)
39·
A
T. R. Bhasin, Rajinder'Sachar and S. C. Malik, for responB
c
D
E
F
dent No. 1 (in C.A. No. 141/64) and respondent No. 2 (in C.A.
No. 142/64).

## Text

'
'
DR. ANUP SL'IGH
v.
SURI ABDUL GHANI AND ANOTHER
A ugus/ 14, 1964
(P. B.
GAJENDRAGADKAR, C.J., K.
N.
WANCHOO,
A
M. HIDAYATULLAH, J. C. SHAH AND N, RAJAGOPALA
B
AYYANGAR JJ.)
The Rcprew1tatio11 of the People Act (43 of 1951). ss. 81(3) and
90(3)-Scope of.
Conduct of Election Rules, 1%1. r. 73(2) (d)--"Any mark or writing
by which the elector can he id~ntifie,t', meaning of.
The Election Trihunal allowed the periiion ch1llenging the appellant's
election to the Council of States and declared the respondent elected. The
a;,pellant's appeal to the High Court was di•missed.
In his appeal to the
Supreme Court, he contended that ; ( i) the High Court was in error in
not rejecting the election peti_rion under s. 90(3) of the Representation
ol the People Act ( 43 of I ?51)
for non-compliance with the provisions of s. 81(3) of the Act, and (ii) the High Court wa. in error in
rejecting one of the votes \\:hich \V;1s in his favou:-.
HELD; (i) As there was a substantial compliance with s. 81(3),
the petition could not be dismissed under s. 90(3). (41F]
Ch. Subba Ra'J v. Member, Election Tribunal, A.1.R. 1964 S.C. 1027,
followed.
c
0
(ii) As the elector by his- wri1ing on the ballot paper had left sufficient evidence of his identity \vhich could lead to his. identification. the
E
ballot paper was rightly rejc'Cted. (48G]
'fhe words ''any n1ark or writing hy \vhich the elector can be identified" in r. 73(2)(d) of-the Conduct of Election Rules mean something
more than a mere possibility of identification hu:: do not require actual
proof of identification before a vote can be invalidated.
All that these
words require is that there -should be reasonable probability of identification by the mark or writing (other than that pennittcd by r. 37-A) and
if there is such a reasonable probability of idenrifi,:ation, the ballot paper
F
would be invalidated. [44C-E]
Woodward v. Sarson.<, (1875), L.R. 10 C. P. 733; Jsaac1on v. Durant,
(1886) IV O'M & H 34; fl. L. Lawso" v, Colonel Chester Master, (1893),
IV O'M & H 194; He,,ry Ed1.-ard Duk' v. R/ch,,rd Harold, (1911) VI
O'M & H 228. Ll'wi.< v. Shepperdson, (1948] 2 All E.R. 503, Reginald
Pole Blundell v. Joseph Vardon, ( 1907) 4 (Pt. 2) C.L.R. 1463, Kenned.v
v. Palmer, (1907) 4 (Pt. 2) C.L.R. 1481 and Kean v. Kerby (1920} 27
G
C.L.R. 449, referred to.
CrvtL APPH!.ATE ]URISDlCTJON: Civil Appeals Nos. 141 and
142 of 1964.
-
Api:eals from lk judgment and order dated May 30, 1962
of the Punj~b High Court, in F.A.O. Nos. 3.'E and 4/E of 1962.
H
G. S. ·Pathak. Harder Singh, Y. Kumar, Mohinder Narain,
S. N. And/ey, nnd Ramesltwar Na1h, for the appellants.
..
ANUP v. ABDUL GHAN! (Wanchoo J.)
39·
A
T. R. Bhasin, Rajinder'Sachar and S. C. Malik, for responB
c
D
E
F
dent No. 1 (in C.A. No. 141/64) and respondent No. 2 (in C.A.
No. 142/64).
The Judgment of the Court was delivered by
Wanchoo J.
These
appeals on certificates granted by the
Punjab High Court arise out of an election to the Council of States
by the Punjab Legislative Assembly and will be dealt with together
as they arise out of two separate election petitions by two persons,
challenging the election of the same person.
There was an electfon to the Council of States by the Punjab
Legislative Assembly in March 1962. There were a number of
candidates for three seats which had to be filled. In the present.
appeals we are concerned with two candidates, namely, Dr. Anup
Singh, appellant, and Shri Abdul Ghani respondent. Two of·the
seats were filled by Shri .Chaman Lal and Shri
Surjit
Singh.
Though originally their election was also challenged, that is not in
dispute now. The position with respect to Dr. Anup Singh and
Shri Abdul Ghani on first preference votes' r the election being on
proportional representation) was that Dr. Anup Singh got 36 votes
and Abdul Ghani 35 votes. Thereafter preferences were transferred
and Dr. Anup Singh got 36 · 3 votes 'and Shri Abdul Ghani 35 votes.
Jn consequence Dr. Anup Singh was declared el~cted along with the
other two candidates whose election is not now in dispute. This
was followed by two election petitions, one by Shri Abdul Ghani
and the other by Shri Lachhman Singh. Originally the election of
all the three candidates was challenged on a large number of
grounds; but eventually the matter was pressed only against the
election of Dr. Anup Singh and only on one ground, namely, that
certain votes cast in favour of Shri Abdul. Ghani had been wrongly
rejected and certain votes cast in favour of Dr. Anup Singh were
wrongly accepted. This challenge was met by the appellant on
two grounds. In the first place he contended that the petitions
were liable to be dismissed under s. 90 ( 3) of the Representation
G of the People Act, No. 43 of 1951 (hereinafter referred to as the
Acti for non-compliance withs. 81 (3). In the second place it
was contended that there was .no improper rejection of the votes
of Shri Abdul Ghani and no improper acceptance of votes of the·
appellant.
H
These were the two main questions before the Tribunal. On
the first question, the Tribunal decided that the election petitions
were maintainable inasmuch as there. was ·substantial compliance
withs. 81(3) of the Act. On the second question relating to eight
40
SUPREME COURT REPORTS
[ 1965] I S.C.R.
votes which were under challenge, the tribunal held that the three A
votes in favour of Shri Abdul Ghani were rightly rejected. This
decision of the tribunal has been upheld by the High Court and
is no longer in dispufo before us.
As to the five votes in favour of
Dr. Anup Singh, it wa> conceded on behalf of the appellant that
one was invalid. Of the remaining four, two were held to be valid
B
. and two were held to be invalid on the basis of the decision of the
Punjab High Court in Pala Singh v. Narha Singh.(') Thereafter
the Tribunal redistributed the votes on the basis of its findings and
declared Shri Abdul .Ghani elected as on redistribution Dr. Anup
Singh .received 33 · 3 votes and Abdul Ghani 35 votes.
Thereupon there were two appeals to the High Court by the c
present appellant and two points were urged on his behalf, namely,
(i) that the election petitions should have been dismissed under
s. 90 ( 3) of the Act as they did not comply with s. 81 ( 3), and (ii)
that the Tribunal was wrong in rejecting the two ballot pa~n;.
The High Court held that there was substantial compliance with
s. 8 1 ( 3) and therefore the petitions could not be rejected under D
s. 90(3). It further held that one of the two votes in favour of
Dr. Anup Singh which the Tribunal had invalidated was not invalid.
Lastly, it held that the second vote rejected by the Tribunal was
rightly rejected. The final position on this basis was that Dr. Anup
Singh got 34 · 3 votes and Shri Abdul Ghani 35 votes.
In consequence the High Court dismissed the two appeals. Then followed
E
two petitions for certificates which were granted; and that is· how
the matter has come up before us.
Two points have been urged on behalf of the appellant before
us. Jn the first place it is contended that the High Court was in
error in not rejecting the election petitions under s. 90(3) of the F
Act for non-compliance with the provisions of s. 81 ( 3) .. Secondly,
it is urged that the High Court was in error in rejecting one of the
votes, and that if that vote had not been rejected Dr. Anup Singh
would have got 35 · 3 votes and Shri Abdul Ghani 35 votes and the
election petitions should have therefore failed. On this aspect of
the matter therefore we have to consider the validity of one vote
G
only.
So far as the first point is concerned, the argument is that
s. 81 ( 3) requires that "every election petition shall be accompanied
by as many copies thereof as there are respondents mentioned in
the petition and one more copy for the use of the Election Commission and every such copy shall be attested by the petitioner H
under his own signature to be a true copy of the petition."
In
--------- ·-
LXIV (1962) P.L.R. 1110.
•
..
•
ANUP v. ABDUL GHANI (Wanchoo I.)
"1
A this case the necessary number of copies were filed and each copy
bore the signature of the petitioner concerned. It may !ilso be
·mentioned that these copies were carbon copies of. the original and
it is not in dispute that they were true copies thereof. But the
attestation required by s. 81 (3.) was not there specifically on the
copies.
Consequently, the appellant contends .that there was no
B compliance with s. 81 ( 3) and in consequence the petitions should
have been rejected under s .. 90(3) which provides that "the Tribunal
shall dismiss an election · petition . which does· not comply with
the provisions of section 81, or section 82 notwithstanding thaf it
has· n6t been dismissed by the Election Commission under section
85." It is urged that in view of the penalty provided for none compliance with s. 81 ( 3), that section is mandatory and has to be
strictly complied with.
Inasmuch as in this case there was no
attestation, the petitions should have .been rejected.
An exactly similar matter came to be considered by this Court
in Ch. Subba Rao v. Member, Election Tribunal. (1 ) In that case
D also the copies were signed by the petitioner but there was no
attestation in the sense that the words "true copy" were omitted
above the signature of the petitioner. This Court held that as the
signature in original was there in the copy, the presence of such
original signature in the copy was sufficient to indicate that the
copy was attested as a true copy, even though the words "true
E copy" were not written above the signature in the copies.
This
Court further held that there was substantial complianc<! with
s. 81 (3) of the Act and the petition could.not be dismissed under
s. 90(3). That case applies with full force to the facts of the
present case, and it must therefore ·be held that there was substanF tial compliance withs. 81 (3) and the petitions could not therefore
be dismissed under s. 90 ( 3) .
This brings us to the main question that has been argued before
us, namely, whether the Tribunal and the High Court were right
in rejecting one of the ballot papers which was marked Ex. ·p~76.
The Tribunal's judgment shows that it was inclined to hold that this
G ballot paper· was not invalid, but following the judgment of the
High Court in Pala Singh's case(') it held this particular ballot
paper to be invalid. When the matter came before the High Court,
the case was placed before a Full Bench of three Jlidges to consider
the correctness of the judgment in Pala Singh('). It may be
mentioned that that judgment was concerned with a mark on
H
the ballet paper and not with any writing thereon, and the High
Court in Pala Singh's case(') took the view that making of any
(I) A.l.R. 1964 S.C. 1027.
(2) LXN (1962) P.L.R. 1110·
42
SUPREME COURT REPOR°IS
[I 965) l S.CR.
mark would make the ballot paper invalid in view of r. 7312Hd).
A
Pala Singh's case(') was reconsidered by the High Court and it
held that on the whole Pala Singh's case(') could not be held to
have been correctly decided in the matter of a mark on the ballot
paper in view of certain decisions of the English courts in that
behalf.
But so far as Ex. P-76 was concerned, the High Court
took the view that that was a case of writing and relying on the
B
decision of Woodward v. Sarsons.( 2 ) the High Court held by
majority the ballot paper to be invalid.
Rule 7 3 ( 2) ( d) lays down as follows :-
" ( 2) A ballot paper ~hall be invalid on which-
( a)
c
(b)
(c)
( d) there is any mark or writing by which the elector
can be identified."
The contention of the appellant is that before any ballot paper can D
be declared invalid under r. 73(2)(d) because of the existence
of any mark or writing on it other than that permitted by r. 3 7-A,
it has to be shown that the elector is actually identified because of
the mark or writing. Now what r. 73(2) (d) requires is (i) that
there should be a mark or writing on the ballot paper other than
what is permitted under r. 37-A, and (ii) that this mark or E
writing should be such that the elector can be identified because
of it. There is no dispute in this case that there are both a mark
and a writing other than the figure pcnnitted by r. 37-A on this
ballot paper. The question is whether the mark and the writing
(other than that permitted by r. 37-A) which are both present F
on the ballot paper are such that the elector can be identified because of them.
This raises the question as to what the words "by which the
elector can be identified" appearing in r. 73(2)(d) mean. The
contention of the appellant is that these words mean that the
mark or writing should be such that the elector is actually identified G
because of them. On the other hand the contention of the respondents is that it is not necessary that the elector is actually identified
by the presence of the mark or writing. It is urged that it is enough
if the elector might possibly be identified by such mark or writing,
or at any rate the mark or writing should be such as would make
it reasonable and probable that the elector can be identified thereby.
H
Thus there are three possible interpretations of the words "by
(I} LXIV 1962 P.L.C. 1110.
(2) (187S) L. R. to C. P. 733.
•
•
..
•
ANUP v. ABDUL GHAN! (Wanchoo J.)
43
A which the elector can be identified" appeatjng in r. 73(2)(d),
namely-(i) any mark or writing which mig11t.possibly lead to the
identification of the elector, <ii) such mark ·!JI' writing as can
reasonably and probably lead to the identification· of the elector,
and (iii) the mark or ·writing should be connected by evidence
aliunde with an elector and it should be shown that the elector
B
is actually identified by such mark or writing.
The appellant
. presses for the third of these alternative constructions both in
respect of the mark and the writing while the respondents press the
first construction, and in any case it is urged that the words do
not go beywid the second constmction.
c
·we are of opinion that the words cannot bear the first construction, namely, that any mark or writing other than that
permitted by r. 37-A which might possibly lead to the identification
of the elector would be covered thereby.
When the legislature
provided that the mark or writing should be such that the elector
can be identified thereby it was not providing for a mere possiD
bility of identification.
On this construction almost every additional mark or writing would fall within the mischief of the
provision. If that was the intention the words would have been
different, for if a mere possibility of identification had been enough
to invalidate the ballot paper, cl. (d) of r. 73(2) would have read
something like this : "that there is any mark or writing other than
E
that permitted by r. 37-A". But the words used by the legislature
are ''any mark or writing by which the elector can be identified'',
and this in our opinion implies that there should be something more
than a mere possibility of identification, before a vote can be
invalidated.
This may happen wheii some pre-arrangement is
either proved or the marks are so many and of such a nature
F
that an inference of pre-arrangement may be safely drawn without
further evidence.
We are further of opinion that the third construction on which
the appellant relies also cannot be accepted. If the intention of
the legislature was that only such votes should be invalidated in
which the elector was actually identified because of the mark or
G writing, the legislature would not have used the words "the mark
or writing by· which the elector can be identified". These words in
our opinion do not mean that there must be an actual identificati011
of the elector by the mark or writing before the vote can be invalidated. If such was the intention of the legislature, cl. (d) would
H have read something like "any mark or writing which identifies the
elector". But the words used are "any mark or writing by which
the elector can be identified'', and these words in our opinion mean
something more than a mere possibility of identification but do not
SUPREME COURT REPORTS
[1965) I S.C.R
require actual proof of identification before the vote can be A
invalidated, though by such proof, when offered, the disability
would be attracted.
It seems to us therefore that the second construction, out of
the three alternatives we have mentioned above, is the real construction of these words.
When the legislature used these words it
8
was providing that any mark or writing by which the elector can
reasonably and probably be identified would invalidate the ballot
p:iper. The words "can be identified" in our opinion imply something more than a mere possibility of id~ntification; at the same
time tbey do not in our opinion require that before the ballot
paper is rejected the elector's identity must be actually established. c
Truly construed therefore the words mean t.bat the mark or writing
sh0uld be such that the elector can he identified thereby with
reasonable probability.
Thus it is not the mere possibility of
identification which will invalidate the vote under r. 73 (2 )( d),
nor is it necessary that there should be certain identification before
lhc vote is invalidated. All that these words r~uire is that there
D
should be reasonable probability of idenlification by the marl:: or
writing (other than that permitted by r. 37-A) and if there is
such a reasonable probability of identification, the ballot paper
would be invalidated.
Obviously when these words mean that there should be a
E
reasonable probabilily of identificalion by means of the mark
or writing there would be a difference in the approach of the
returning officer as well as of lhe tribunal and of the court when
dealing with a mark as distinguished from a writing. So far as the
mark is concerned it has by itself very little value for purposes of
identification and lherefore in the case of marks the returning offker F
or the tribunal or the court may require evidence to show that
there was arrangement between the elector and the candidate to
put a certain mark on the ballot paper which would lead to his
identification. But in the case of a writing the mere pre...ence of
the writing in certain circumstances would be sufficient to warrant
the returning officer, or the tribunal or the court to say that the .G
elector can be identified by the writing. Whether the elector can
be identified by the writing would always be a question of fact
in each case and in that connection the extent of the writing on the
ballot paper may have a hearing on the question whether the elector
can be identified thereby. For example, if the writing consi5ts of.
say, a capital letter 'A', it may be possible for the returning
officer, the tribunal or the court to sav that tbere is not sufficient
material in the writing by which the elector can be identified. But
H
ANUP v. ABDUL GHAN! (Wanchoo J.)
45
A if the writing consists of a number of words it will be. open to the
returning officer after taking into account the entire circumstances
to say whether the elector can be identified by the presence of so
much writing.
In dealing with this question the size of the
constituency and the number of words may not be irrelevant.
We may also .add that when scrutinising the ballot papers under
B
r. 37-A and considering wheth.er a particular ballot paper should
be rejected, it is not necessary for the returning officer to take
evidence, though if any party is prepared to give evidence then and
there while the scrutiny is going on and votes are being counted,
there is nothing to prevent , the returning officer from taking
such evidence to determine whether the mark or writing is· such
C
that the elector can be identified thereby. But generally evidence
may not be forthcoming and it will be for the returning officer,
the tribunal or the court to decide on the ballot paper as it stands
whether the mark or writing is such that the elector can be identified
thereby. As we have said already the difficulty is greater in the
D
case of a mere mark; the difficulty may be less in the case of a
writing depending upon the amount of writing that is available
on the ballot paper and it will be for the returning officer, the
tribunal or the court in each case to decide in all the circumstances,
whether the writing is of such a. nature and of such an extent
that the elector can be identified by it.
E
Similar provisions exist in the English law and have been
the subject of decisions by English courts. In Woodward's case(')
the validity of voting papers which bore marks as well as writing
other than permitted under the rules came up for consideration.
So far as the marks were concerned they consisted of two crosses
F
instead of one as required by rule, and the court observed that
in such a case if there were evidence of an arrangement that the
voter would place two marks, so as to indicate that it was he,
that voter, w)lo had used that ballot paper, then, by reason of
such evidence, such double mark would be a mark by which the
voter could be identified, and then the paper, upon such proof
G
being made, showd he rejei:ted. But the mere fact of there being
two such crosses is not a substantial breach of the statute. As to
the writing on two ballot papers, however, the Court held with
some hesitation that it should disallow them, and the rule was put
this way:
H
"We yield to the suggestive rule that the writing by the
voter of the name of the candidate may · give too much
facility, by reasOb of the handwriting, to identify the voter".
(I} (1875) L. R. 10 C.P. 733.
LISup./64---4
46
SUPREME COURT REPORTS
(1965) I S.C.R.
The question again came to be considered in Isaacson v.
A
Durant(') (popularly known as Stepney case). In that case a
certain name had been written at the back of the paper and a
question arose whether that writing was such as to lead to the.
identification of the voter. The two learned Judges constituting
the court differed on this point. Field J. was not even sure whether
the voter had written the name as: it was at the back of the ballot ' B
paper.
Denman J. however, thought that the case was covered by
Woodward's ca~(') and put it thus at p. 42 :
"Now I take the decision in Woodward v. Sarsons to
amount to this, not that every departure from a simple cross
C
is a mark by which the voter can be identified-a double
cross for instance was allowed by the Court-but that where
the name of the candidate, not of the voter, is written in
full upon the ballot-paper, the vote shall be invalid, because
that is a mark by which the voter can be identified. The
principle is this : that where a inan has once written a name
D
in full upon a paper it is evidence of his handwriting, and
evidence of his handwriting is evidence of the identity of
the man."
The matter was again considered in H. L. Lawson v. Colonel
Chester Master(') (known as Cirencester case) and Hawkins J.
put the matter thus at p. 198:
"We think we ought to adhere to the language of the
statute itself, which says that th~ mark must be mark by
which the voter can (not might possibly) be identified,
whetlrer_ the mark is such, is a matter of fact."
Tho matter again came up for consideration in Henry Edward
E
F
Duke v. Richard Harold.(')
There the voter bad written the
•
words, "Up, Duke !" against the name of the candidate for whom
he was voting, and the question that arose specifically was whether
the rule in Woodward's case(') had been invalidated by subsequent
cases, Ridley J. said that he did not "think that subsequent cases
G
have invalidated the rule--not really.
Finally we may refer to the case of Lewis v. Shepperdson(")
where the rule in Woodward's case(') which was followed in
Cirencester case(') was adhered to.
The law in England thus
(I} (1886) IV O'M .t H :14.
(2) (187S) L.R. 10 C.P. 733.
(3) (1893) IV O'M .t f:l 194.
(4) (1~11) VI O'M .t H 226.
(S) (1948) 2 All Jl. R. S03.
H
•
•
ANUP v. ABDUL GHANl(Wanchoo I.)
47
A
appeal'S to· be in accord with· what we think to be the interpretation
of the crucial words in r. 73(2)(d) .
. Learned counsel for · the appellant however refers to three
cases froni Australia. In Reginald Pole Blundell v. Joseph
V.ardon('), the court was dealing mostly with marks and not
B with writing except in one case where the wprd "yes" had been
written.
The vote was held to be valid; but it was remarkable
that the Cirencester case(2 ) was followed.
The other case is
Kennedy v. Palmer("). In that case also the Court followed
Cirencester case(2) and that was also a case mainly dealing with
marks and not with writing.
c
In Ke<l{I v. Kerby(') what had happened with one of the
votes was that the presiding officer did not write the name of the
candidate on the ballot paper as he should have done.
The
voter apparently thought that he himself had to fill the name and
wrote "McGrath" and filled in the figure 1. Consequently it was
uiged that as the votc:r had written the name of the candidate,
D the vote was invalid on the basis of the case of Woodward ( 1) •
Isaacs J. decided in that case that the vote was valid. He referred
to Woodward's case(") and said that he substantially agreed with
that case. But the case in questioa was treated as a special case
because the presiding officer had not written the name of the candiE
date as he should have done and the voter thought that he should
write it This decision therefore does not in any way affect the
decision in Woodward's case(') and if the actual decision appears
to be inconsistent with the ratio of Woodward's case ( '), it can well
be. said that the special facts before the court, it was thought,
justified the departure from that view. It seems therefore that the
F
Australian law on the subject is not different from the English
lllW and it is a question of fact in each case whether looking
at the writing or mark on the ballot paper, the returning officer,
tnounal or the court is able to come to a conclusion that the mark
or writing is such that the voter can be identified thereby in the
G
H
sense in which we have explained those words above.
. This then being the construction to be placed on the words
"by which the elector can be identified" we have to see whether
ballot paper Ex. P-76 bears any mark or writing by which the
elector can be identified. Besides the figures I, 2 and 3 which were
permissible under r. 37-A. the ballot paper in question 'also bears
ct'OSSCS in each case. A cross however is in our opinion a slender
(ll (1907) 4 (Pt. 2) C.L.R. 1463..
(2) (1893) IV O' M & H 194.
(3) (1907) 4. Pt. 2 C.L.R. 1481.
(4) (1921J) 27 C.L.R. 448.
(S} (1875) L.R. 10 C.P; 733 ..
48
SUPREME COURT REPORTS
[ 1965] I S.C.R.
basis on which the elector can be reasonably identified. Therefore
A
we shall overlook the crosses. After the cross we find the words
"'One, Two, Three" written in each case along with the figures
"'I, 2, 3" which come last. The contention on behalf of the appel·
!ant is that the words "One, Two, Three" were really written as
a matter of emphasis and it cannot be said that the voter can be
identified by writing these word~, Now there is no dispute that
B
these words constitute the writing of the elector on this ballot
paper, and the only question is whether by this writing he can
be identified. Applying the interpretation of the words we have
given above, the .question is whether this writing is of the nature
and extent which would be reasonably sufficient to lead to the
identity of the elector.
We are of opinion that the writing is
C
sufficient· in extent, particularly when we bear in mind a small
constituency of I 52 electors and it would in our opinion be right
to say that there was a reasonable probability of the identification
of the elector by this writing which he had put on the ballot paper.
To say that the elector merely wanted to emphasise .his choice is of
D
no assistance to the appellant if the writing is of a nature and extent
that it can with reasonable probability lead to the identification of
the elector. In the present case we have no doubt that the writing
wa' of sufficient extent and can lead to the identification of the
elector.
As Denman J. put it in the Stepney case ( 1), the elector
here has by his handwriting left sufficient evidence of his identity
E
and can be iclentified thereby. We may acid that it is not necessary,
as the majority of the learned Judges of the High Court seem to
think, that the returning officer in the peculiar circumstances of
thi' case, being the Secretary of the Legislative Assembly might
be knowing the handwriting of the members. Even if he does not
know the handwriting, the ballot paper would be invalidated if the
F
writing is of the nature and extent that it can lead to the identification of the elector. Jn the present case we have no doubt that
by writing the words "One, Two, Three" on the ballot paper, the
elector has left sufficient evidence of his identity which can lead
to his identification.
In the result this ballot paper was riehtly
rejected.
Jn this view of the matter the conclusion of the Hi~h G
Court is correct and the appeals must fail.
We therefore dismiss the app<'als with costs--0ne set of
heating fee.
Appeals dismissed.
(1) (1886) IV O'M & H 34.
•
,.