Full Judgment Text
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PETITIONER:
KAMAL NARAIN SHARMA
Vs.
RESPONDENT:
SHRI PANDIT DWARKA PRASAD MISHRA AND OTHERS
DATE OF JUDGMENT:
17/08/1965
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
SHAH, J.C.
SIKRI, S.M.
CITATION:
1966 AIR 436 1966 SCR (1) 478
ACT:
Conduct of Election Rules, 1961, Rule 94A-Affidavit required
under-Affidavit sworn before clerk of Court appointed
Commissioner of Oaths under s. 139(c) of the Code of Civil
Procedure-Affidavit whether sworn before proper authority
under r. 94A.
HEADNOTE:
An election petition was filed by the appellant against the
first respondent challenging his election on May 4, 1963 to
the Madhya Pradesh Legislative Assembly. A number of
allegations including those of corrupt practice were made
against the first respondent in the petition. The affidavit
filed in support of the allegations of corrupt practice as
required by Rule 94A of the Conduct of Election Rules, 1961,
was sworn by the petitioner before the Clerk of Court in the
District Court of Jabalpur. The first respondent in his
objections before the Election Tribunal raised the question
whether the affidavit under Rule 94A was sworn before a
proper authority. The Election Tribunal accepted the
objection but allowed the appellant to file a second
affidavit sworn before a proper authority. The orders of
the Tribunal were challenged by the first respondent before
the High Court under Art. 226 and Art. 227 of the
Constitution and the High Court, holding that the fresh
affidavit could not be called and that there was no proper
affidavit, quashed the orders of the Tribunal and directed
the Tribunal to pass an order according to law. The
appellant appealed to this Court on certificate of fitness
granted by the High Court.
Although the appellant had conceded before the High Court
that his first affidavit was not proper he was allowed to
withdraw his concession in this Court. It was contended on
behalf of the appellant that the clerk of Court before whom
his first affidavit bad been sworn had been duly appointed
ex-officio Commissioner of Oaths under s. 139(c) of the Code
of Civil Procedure and an affidavit sworn before him
complied with r. 94A. The respondent however contended that
a Commissioner of Oaths appointed under s. 139(c) was for
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the purpose of affidavits under the Civil Procedure Code
only, just as a Commissioner appointed under s. 539 of the
Criminal Procedure Code could swear affidavit under that
Code only.
HELD : There is no analogy between an affidavit sworn under
s. 539 Cr. P. C. and the affidavit sworn here. An
affidavit sworn by a district Clerk of Court may not be good
for the purpose of the Code of Criminal Procedure and vice-
versa but that is because the restriction is to be formed in
s. 139 of the one Code and s. 539 of the other. Rule 94A
makes no such condition and makes receivable an affidavit
before a Commissioner of Oaths without specifying of what
kind. In this view of the matter the affidavit sworn before
the District Clerk of Court who undoubtedly was a
Commissioner of Oath could only be excluded by taking an
extreme and technical view which was not justified. [484 B-
D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 437 of 1965.
479
Appeal from the judgment and order dated April 15, 1964 of
the Madhya Pradesh High Court in Misc. Petition No. 90 of
1964.
M. S. Gupta, for the appellant.
G. S. Pathak, Y. S. Dharmadhikari and A. G. Ratnaparkhi,
for respondent No. 1.
The Judgment of the Court was delivered by
Hidayatullah, J. This appeal arises from an election
petition filed after the last General Election to the Madhya
Pradesh Legislative Assembly, in respect of the election
from the Kasdol Legislative Assembly constituency held on
May 4, 1963. The first respondent was declared elected and
the appellant challenged his election alleging several acts
of corrupt practices, publication of false statements,
filing of false accounts etc. The election petition was
supported by an affidavit sworn before K. S. Moghe, Officer
for Administering Oaths on Affidavits, Jabalpur. Moghe was
the Clerk of Court in the District Court, Jabalpur. The
first respondent objected that the affidavit was not sworn
before the proper authority as required by rule 94-A of the
Conduct of Election Rules, 1961, and it was, therefore,
prayed that the election petition should be dismissed or the
allegations about corrupt practices should be struck out.
The Election Tribunal, by an order dated October 31, 1963
accepted the objection but allowed the filing of a proper
affidavit and a fresh affidavit was taken on record. No
action was taken against that order. It appears that the
Election Tribunal had framed two issues for determination.
They were:
"Issue No. 18 : Whether the affidavit filed by
the petitioner in support of his petition is
bad in law, as not properly sworn before a
competent Officer duly authorised to attest
and authenticate an affidavit and does not
also comply with the provisions of Section 83
of the Representation of the People Act and
the Rules made thereunder. If so, whether the
petition is liable to be dismissed on this
ground."
"Issue No. 20 : Whether the various alleged
acts of corrupt practices mentioned in the
petition are duly supported by an affidavit as
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required under Section 81(3) of the
Representation of People Act ? If not, what is
its effect on this petition?"
480
On February 14, 1964 the first respondent filed an
application drawing attention to the latter part of issue
No. 20 and asked inter alia for a finding whether the
election petition was not liable to be dismissed when the
affidavit was not proper The Tribunal by an order passed on
February 24, 1964 rejected the -last contention and held
that as a fresh affidavit was filed the petition could
proceed to trial.
On March 2, 1964 the first respondent filed a petition under
Articles 226 and 227 of the Constitution in the High Court
of Madhya Pradesh challenging both the orders and asked that
they be quashed. The High Court, by its order now under
appeal by certificate, quashed the two orders and the
Tribunal was directed to deal further with the petition in
the light of the order of the High Court.
The High Court in an elaborate order has considered whether
the provisions of rule 94-A were mandatory or directory but
it did not address itself to the question whether the first
affidavit was proper or not. This was, perhaps, due to the
fact that the appellant seems to have conceded before the
Tribunal that the first affidavit was not proper. This
concession was sought to be withdrawn in this appeal by the
appellant and on looking into the record we were satisfied
that the concession was wrongly made and should be allowed
to be withdrawn. We accordingly heard arguments on -the
question whether the original affidavit did not satisfy the
Conduct of Election Rules and the Representation of the
People Act. We are satisfied that the first affidavit was
proper and the second affidavit was not necessary.
Before we give our decision on this point we shall first set
down the relevant provisions. Section 83 of the
Representation of People Act provided that-
"83 (1) an election petition-
(a) Shall contain a concise statement of the
material facts on which the petitioner relies;
(b) Shall set forth full particulars of any
corrupt practice that the petitioner alleges,
including as full a statement as possible of
the names of the parties alleged to have
committed such corrupt practice and the date
and place of the commission of such practice;
and
481
(c) Shall be signed by the petitioner and
verified in the manner laid down in the Code
of Civil Procedure, 1908 (5 of 1908) for the
verification of pleadings.
"Provided that where the petitioner alleges
any corrupt practice, the petition shall also
be accompanied by an affidavit in the
prescribed form in support of the allegation
of such corrupt practice and the particulars
thereof.
(2) Any schedule or annexure to the petition
shall also be signed by the petitioner and
verified in the same manner as the petition."
Rule 94-A of the Conduct of Election Rules,
1961 next provides:
"94-A. The affidavit referred to in the,
proviso to Sub-section (1) of Section 83 shall
be sworn before a Magistrate of the First
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Class or a Notary or a Commissioner of Oaths
and shall be in Form 25."
Form 25 need not be reproduced but the
endorsement of the officer before whom the
affidavit is sworn may be reproduced
"Form 25.
Solemnly affirmed/sworn by
Shri/Shrimati ............at...thisday...of
196 Before me. .Magistrate.....of...First
Class Notary/Commissioner of Oaths".
The relevant rules of the High Court and the
notifications issued by the Government have
been placed in our hands. ’Me High Court has
framed Rules relating to the Civil Procedure
Code and rule 20 dealing with affidavits reads
:
"20. All Courts dealing with affidavits
should make calls for affidavits at I I a.m.
and 2 p.m. every day. If ,the Clerk of Court
or other ministerial officer is appointed a
Commissioner for administering oath of
affidavits, he will discharge that function at
such time as may be fixed by the District
Judge in this behalf."
482
Rule 34 says :
"34. The Officer administering the oath shall
make the following endorsement on every
affidavit sworn before him and shall date,
sign and seal the same.
"Sworn before me on the day of ............
19 by son of ............ who is
personally known to me (or) who has been
identified by whose signature is/signatures
are hereto appended.
SEAL
Signature
Designation".
The affidavit which was sworn before Moghe bore the above
endorsement and Moghe described himself as "Officer for
Administering Oaths on Affidavits, Jabalpur, Madhya
Pradesh".
On February 16, 1959 the Government of Madhya Pradesh had
issued a notification under District Judges were empowered
under s. 139(c) of the Code of Civil Procedure to appoint
Commissioners to administer oaths on affidavits made under
the said Code and the District Judge, Jabalpur in exercise
of the powers so conferred appointed, among others, the
Clerk of Court attached to his office to be ex-Officio
Commissioner for the purpose of administration of oaths on
affidavits made under the Code of Civil Procedure. It may
be pointed out that subsequently in May 1960 the first
notification was amended and in place of the words in the
first notification "empowers all the District Judges to
appoint Commissioners to administer oaths on affidavit made
the words "generally empowers the Court of District Judges
to appoint officers to administer oaths to deponents in
cases of affidavits" where substituted. This change does
not affect the present matter because the appointment of
Moghe was tinder the first notification and not under the
second. The contention of the first respondent is that the
affidavit did not comply with the requirements of rule 94-A
because Moghe was not a Commissioner of Oaths but was an
officer for Administration of Oaths for the purpose of s.
139(c) of the Code. We shall refer to that provision
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presently.
The rule does not state before which Commissioner the affi-
davit must be sworn. It must, therefore, be read as
including all Commissioners of Oaths duly appointed. The
election petition is verified as a plaint but the affidavit
is needed additionally
483
when allegations of a particular type are made. The rule
really requires an affidavit so that action for perjury may
be based on it if the allegation is found to be false. We
enquired whether, in the State of Madhya Pradesh, there was
any other provision under which Commissioners of Oaths could
be appointed but none was shown. The Indian Oaths Act, no
doubt, consolidates the law relating to judicial oaths and
for other purposes. Section 4 of that Act gives authority
to "all courts and persons having by law or consent of
parties authority to receive evidence", "to administer, by
themselves or by an officer empowered by them in this
behalf, oaths and affirmations in discharge of the duties or
in exercise of the powers imposed or conferred upon them
respectively by law." This is a general provision and it
mentions generally persons having by law authority to
receive evidence. It is difficult to say that the Clerk of
Court answers this description. But there are other
provisions of law under which oaths may be administered for
purposes of affidavits. Section 139 of the Code of Civil
Procedure, under which the Clerk of Court was given this
jurisdiction, provides :
"139. Oath on affidavit by whom to be
administered.
In the case of any affidavit under this Code-
(a) any Court or Magistrate, or
(b) any officer or other person whom a High
Court may appoint in this behalf, or
(c) any officer appointed by any other Court
which the Provincial Government has generally
or specially empowered in this behalf,
may administer the oath to the deponent".
Similarly, section 539 of the Code of Criminal
Procedure provides.
"539. Courts and persons before whom
affidavits may be sworn.-
Affidavits and affirmations to be used before
any High Court or any officer of such Court
may be sworn and affirmed before such Court or
the Clerk of the State, or any Commissioner or
other person appointed by such Court for that
purpose, or any Judge, or any Commissioner for
taking affidavits in any Court of Record in
India, or any Commissioner to administer oaths
in England or Ireland, or any Magistrate
authorized to take affidavits or affirmations
in Scotland."
484
It is therefore not necessary that an appointment with
reference to the Oaths Act had to be made.
The Clerk of Court was appointed a Commissioner of Oaths
under s. 139(c) quoted above. It is contended that the
powers of such a Commissioner were to administer oaths for
purposes of affidavits under the Code of Civil Procedure and
this meant Or. XIX of the Code. It is pointed out that none
of the conditions under which the affidavit is required
under that Order applies here. It is argued that
Commissioners appointed under one statute cannot swear
affidavits prescribed under another statute, and s. 539 of
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the Code of Criminal Procedure is also cited as an instance.
This may be so. It may be that an affidavit sworn by a
District Clerk of Court may not be good for the purposes of
the Code of Criminal Procedure and vice-versa but that is
because the restriction is to be found in S. 139 of the one
,Code and s. 539 of the other. Rule 94-A makes no such
condition and makes receivable an affidavit sworn before a
Commissioner of Oaths without specifying of what kind. In
this view of the matter the affidavit sworn before the
District Clerk of Court, -who undoubtedly is a Commissioner
of Oaths can only be excluded by taking an extreme and
technical view which, in our ,opinion, is not justified.
The appeal must therefore succeed on this short ground and
it is not necessary to discuss whether the rule is mandatory
or directory for, in any event, its requirements have been
met. The appeal is allowed but as the appellant had earlier
conceded the point on which the appeal succeeds, there shall
be no order about costs. The case will now go back to
Tribunal for decision on merits.
Appeal allowed.
485