STATE OF GUJARAT Vs. CHANDULAL BHIKHALAL
LAWS(GJH)-1963-12-8
HIGH COURT OF GUJARAT
Decided on December 16,1963

STATE OF GUJARAT Appellant
VERSUS
CHANDULAL BHIKHALAL Respondents

JUDGEMENT

V.B.RAJU - (1.) This is an appeal by the State against the acquittal of the respondent under section 171-F I. P. Code for having personated at an election in that he applied for a ballot paper under a false name of Mansukhlal Bhikhalal whereas his real name is Chandulal Bhikhalal. The learned Magistrate acquitted him relying upon State of Orissa v. Gokul Barik A. I. R. 1959 Cuttack 153 on the ground that he had only gone to the first polling officer who verifies the name and not to the third polling officer who actually issues a ballot paper. The view taken is that he had not gone to the third polling officer who issues a ballot paper and therefore it cannot be said that he had applied for a voting paper within the meaning of section 171-D of the Indian Penal Code. That the accused gave his name as Mansukhlal Bhikhalal is proved by the evidence of prosecution witness Chhaganlal who was a polling officer on duty. It is also proved that his name is not Mansukhlal Bhikhalal but his name is Chandulal Bhikhalal. So the main question for determination in this appeal is whether a person who gives a wrong name to the first polling officer at a polling station where the name of a voter is checked by the first polling officer and a ballot paper is actually issued by the third polling officer he commits an offence for applying for a ballot paper under a false name. The view taken in A. I. R. 1959 Cuttack (Supra) is that a person who goes to the first polling officer and gives a false name does not apply for a ballot paper until he goes to the third polling officer who actually gives a ballot paper. with great respect it is difficult to agree with this view. The work of verifying the names and applying for ballot papers is divided between two persons. Excepting candidates polling agents and Government Officials no one goes to the polling station unless he wants to apply for a ballot paper and wants to vote. Before a ballot paper is issued to a person by a polling officer it is his duty to verify his name and to verify that he is a voter at an election and that he has not already voted. It is only after verifying the name that a ballot paper is actually issued by the polling officer. In theory all these duties must be done by one polling officer but in order to save time the work is distributed. Merely because the work of checking the name checking the fact that he has not already voted and the work of issuing a ballot papers is divided between different persons it cannot be said that a person does not apply for a ballot paper when he goes to any of the polling officers in charge of that work. In fact there is only one presiding officer at the polling station who is in full control of the station. Actually in theory a ballot paper is issued by the presiding officer and not by the first or third polling officer who both act for the presiding officer. It is only when a person applies for a ballot paper that his name is checked and the fact that he has not already voted is checked by the first polling officer. When a person goes to get these facts checked he is taken to have applied for a ballot paper. As already observed those who do not want to apply for a ballot paper do not enter the polling station unless they are polling agents or candidates or Government Officers on duty. We must therefore hold that every one who goes to the first polling officer does so because he applies for a ballot paper although the actual issue of a ballot paper is done by the third polling officer. With great respect I differ from the view taken by the Orissa High Court in A.I.R. 1959 Cuttack 153 (supra).
(2.) It is also not necessary that the offence of personating at an election should require the proof a mens rea. No intention or no corrupt motive is necessary to be proved when a person goes to a polling station and applies for a ballot paper under false name. Corrupt motive is implied in the very fact that he applies for a ballot paper under a false name. The case of Venkayya v. Emperor A.I.R. 1930 Madras 246 is a different case. That was a case where a person had applied for a ballot paper having already voted. It was held that there was no corrupt motive because his name was included in two lists of voters at two polling stations. Section 171-D I. P. Code refers to a person applying for a ballot paper after having already voted and whose name is mentioned only once in the list of voters. It does not refer to a person whose name is mentioned twice by mistake in the list of voters. A person whose name is mentioned twice in the list of voters may be under the impression that he got two votes and section 171-D I. P. Code has no application in such a case. The Madras case is not applicable to a case where a person gives out a false name. In the Madras case the voter did not give a false name. The Madras case has therefore no application to the facts of this case.
(3.) The appeal is therefore allowed the order of acquittal passed by the learned Magistrate is set aside and the respondent is convicted under section 171-F of the Indian Penal Code and sentenced to a fine of Rs. 20/(twenty) in default seven days simple imprisonment. Appeal allowed.;


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