DIBYENDU BISWAS v. RABIN DEB — 1997 DIGILAW 277 (CAL)

S. K. SEN, J. ( 1 ) THE instant Election Petition has been filed by the petitioner challenging the election of respondent No. 1 as a returned candidate from 152 Ballygunge Assembly Constituency on the basis of declaration of result made by the concerned Returning Officer on 11th May, 1996. The case of the election petitioner is based on alleged corrupt practices committed by the respondent No. 1 and his election agent with the help of the Counting Officials, Assistant Returning Officer and the Returning Officer at the time of counting. ( 2 ) IT has further been alleged that there were improper reception, refusal and rejection of votes which materially affected the result of the election. It has further been alleged that the result of the election in so far as the returned candidate is concerned is illegal and void and as such the said election of the returned candidate be declared void and the petitioner be declared elected upon proper recounting, scrutiny and inspection of all ballot papers used in the said election including rejected ballot papers and other ballot papers as also the statutory forms and returns. ( 3 ) THE Election Petition was filed by the Election petitioner on or about June 6, 1996 and thereafter an order was passed on 9th July, 1996 after the copies of the Election Petition was served upon the respondents, inter alia deleting the names of the respondent Nos. 1-6 being Government officials who cannot be made parties in the Election petition and further leave was given to the Advocate for the respondent No. 1 to file the written statement and on the prayer of the said Advocate, leave was also granted to raise preliminary objection. ( 4 ) THE Election Petition affirmed an affidavit on 1st July, 1996 dealing with the allegations of the corrupt practices alleged in the Election Petition in terms of the provisions of Section 83 (1) and proviso thereto of the Representation of the People Act, 1951 (hereinafter referred to as the said Act ). The said affidavit has been duly filed with the department of this Court after the same being affirmed and the same after being sent by the department to the Registrar, Original Side, forms part of the election case. The said affidavit has been duly filed with the department of this Court after the same being affirmed and the same after being sent by the department to the Registrar, Original Side, forms part of the election case. Copy of the said affidavit has also been sent by the Advocate of the Election Petitioner to the learned Advocate of the respondent No. 1. ( 5 ) THE Election Petition was taken upon 3rd September, 1996 where the following issues were 0 settled at the suggestion of the parties. The issues are set out hereinbelow :-1. Is the Election Petition liable to be dismissed under the provisions of Section 86 of the Representation of the People Act, 1951 for non-compliance with Section 81 (3) of the said Act due to non-attestation by the petitioner under his own signature on the copy of the Election Petition served on this respondent?2. Is the Election Petition liable to be dismissed, for not having been filed together with any affidavit in Form No. 25 prescribed by Rule 94a of the Conduct of Election Rules, 1961 read with the proviso to Section 83 (1) of the Representation of the People Act, 1951 entire petition rests upon imputation of corrupt practices?3. Was there any corrupt practice as alleged in the Election Petition?4. Was there any improper reception, refusal and rejection of votes as alleged in paragraphs 9 to 21 of the petition?5. To what relief, if any, the petitioner is entitled to? ( 6 ) MR. Salil Ganguly, learned Advocate for the respondent No. 1 has submitted that the Election Petition is not maintainable and the first two preliminary issues should be taken up for hearing before other issues are considered by the Court. Accordingly, the hearing on the said two preliminaries were taken up for hearing. ( 7 ) THE main contention of Mr. Ganguly is that Section 81 (3) of the Act provides that "every Election Petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. ( 7 ) THE main contention of Mr. Ganguly is that Section 81 (3) of the Act provides that "every Election Petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. " ( 8 ) ACCORDING to him, in the instant case, copy of the petition has not been attested in every page although in each page signature of the petitioner No. 1 as well as the Advocate appears and as such the same cannot be said to be a true copy since the same does not comply with the requirement of law. ( 9 ) MR. Ganguly has also raised another preliminary objection on the basis of which issue no. 2 has been framed. He has submitted that the Election Petition is liable to be dismissed for not having been filed together with an affidavit in Form No. 25 as required under the Conduct of Election Rules and also under the said Act. ( 10 ) WITH regard to the first objection it is not in dispute that the each page in the copy supplied was signed by the petitioner as well as his Advocate. Therefore the complaint is only with regard to the fact that attestation is not there, although the learned Advocate for the respondent no. 1 has admitted that there is no discripancy between the original petition filed and the copy supplied. It is also on record that another copy was supplied after amendment was effected. ( 11 ) IN the first page of the said supply copy of the petition, signature of the petitioner appeared in both left hand side and right hand side. In the left hand side, it is marked, 'true copy' and the signature was affixed; whereas in the right hand side, only the signatures of the petitioner and the learned Advocate appear. ( 12 ) THE contention of Mr. Ganguly is that the said copy cannot be taken into account since it was supplied long after July, 1996. The question therefore arises if the suit is liable to be dismissed only because the word 'attestation' is not there. ( 13 ) THE question raised by Mr. ( 12 ) THE contention of Mr. Ganguly is that the said copy cannot be taken into account since it was supplied long after July, 1996. The question therefore arises if the suit is liable to be dismissed only because the word 'attestation' is not there. ( 13 ) THE question raised by Mr. Ganguly is now settled by the Supreme Court in the case of F. A. Sappa v. Singori reported in AIR 1991 SC 1557 : (1991 AIR SCW 1492 ). In the aforesaid decision the Supreme Court in paragraph 31 at page 1576 of the said report inter alia held and observed as follows :-"the next objection raised by the appellants is that the copy of the petition served on each of them is not attested to be a true copy of the original petition as required by S. 81 (3) of the R. P. Act and Rule 1 of the Rules. Each copy is attested as 'certified true copy' and the petitioner has put his signature thereunder. This, contend the appellants, is not in conformity with S. 81 (3) read with S. 86 (1) is not satisfied. On a plain reading of S. 81 (3) it becomes clear that the requirement of that provision is : (i) that election petition should be accompanied by as many copies thereof as there are respondents mentioned in the petition, and (ii) every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. There is no dispute in regard to the compliance of the first part. So, far as the second part is concerned all that the section 1 requires is that the copy should be attested by the petitioner to be a true copy of the petitioner under his own signature. The requirement of this part of the provision is met by each copy having been signed at the foot thereof by the concerned petitioner. What is essential is that the petitioner must take the responsibility of the copy being a true copy of the original petition and sign in token thereof. No particular form of attestation is prescribed all that the sub-section enjoins is that the petitioner must attest the copy under his own signature to be true copy of the petition. What is essential is that the petitioner must take the responsibility of the copy being a true copy of the original petition and sign in token thereof. No particular form of attestation is prescribed all that the sub-section enjoins is that the petitioner must attest the copy under his own signature to be true copy of the petition. By certifying the same as true copy and by putting his signature at the foot thereof, the petitioner of each election petition had clearly complied with the letter and spirit of Section 81 (3) of the R. P. Act. In fact in Ch. Subba Rao v. Member, E. T. Hyderabad, (1964) 6 SCR 213 : ( AIR 1964 SC 1027 ), which was followed in Kamalam's case ( AIR 1978 SC 840 ) (supra) this Court had accepted the mere signature without the words like true copy, sufficient attestation under Section 81 (3) of the R. P. Act. We are therefore in agreement with the finding recorded in this behalf by the High Court. " ( 14 ) IN view of the principles laid down by the Supreme Court the contention of Mr. Ganguly that the copy served upon the respondent no. 1 is not a true copy since it is not attested in every page cannot be accepted, and the preliminary objection raised on that ground fails. ( 15 ) WITH regard to the other preliminary objection as appears on the basis of issue no. 2, Mr. Ganguly has relied upon judgment and decision in the case of Dr. (Smt.) Shipra etc. v. Shantilal with Jhammak Lal v. Laximinarayan reported in AIR 1996 SC 1691 : (1996 AIR SCW 1772 ). Mr. Ganguly has submitted relying upon the said decision that since the affidavit in Form No. 25 was not filed along with the petition, there was non-compliance with the statutory provision. He has also urged that doctrine of specific compliance cannot be accepted and even if the lapse is on the part of the Registry of the High Court, that cannot be taken as an excuse. ( 16 ) MR. Ganguly has submitted that Sections 81, 83 (1) and 86 read with Rule 94 (A) of the Conduct of Election Rules and Form No. 25 are to be read conjointly as an integral scheme. ( 16 ) MR. Ganguly has submitted that Sections 81, 83 (1) and 86 read with Rule 94 (A) of the Conduct of Election Rules and Form No. 25 are to be read conjointly as an integral scheme. He has contended that in the instant case since no affidavit of the Election Petition was filed along with the petition although an affidavit was filed subsequently and supplied to the respondent no. 1, the same cannot be accepted. In the instant case it is not in dispute that the petition was presented on 6-6-96 with due verification and that an affidavit alleging corrupt practice was affirmed on 1-7-96. ( 17 ) IT has been contended by Mr. Ganguly that the said affidavit affirmed on 1-7-96 is sought to be introduced on behalf of the petitioner as affidavit in Form No. 25 on the plea that an affidavit of Form No. 25 is merely 'supporting affidavit' and 'supporting affidavit' can be introduced at any time and it need not accompany the petition at the time of presentation. Copy of the said affidavit however was served, according to him, on the Advocate on record of the returned candidate on 27-8-96. ( 18 ) HE has submitted that Form No. 25 should be presented before the Registrar, Original Side of this Court before whom the Election Petition is required to be presented. On the contrary, the same was served upon the learned Advocate on record of respondent no. 1. He has also argued that Rule 18 of the Election Rules of this Court requires that "every Election Petition together with schedules or annexures thereto and affidavits, if any annexed to such petition, shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, for service on the respondents. " ( 19 ) LEARNED Advocate for the respondent No. 1 has further submitted that Form 25 of Conduct of Election Rules itself shows from the words 'accompanying petition', 'accompaniment' of the affidavit in Form 25 with the Election Petition is essential feature of the Form itself. If any affidavit is affirmed subsequent to the presentation of the petition it can never be in conformity with Form 25. Such an affidavit would be a false affidavit. If any affidavit is affirmed subsequent to the presentation of the petition it can never be in conformity with Form 25. Such an affidavit would be a false affidavit. Order VII Rule 14 (2) of the Code of Civil Procedure imperatively requires that along with the plaint a separate list of documents on which the plaintiff relies shall be filed. No list as required was filed. Rule 9 (h) of the Election Petition Rules, 1967 of the High Court at Calcutta requires that an Election Petition shall contain in one of the separately serialled paragraphs a statement of schedules and annexures of any document made and appended to the Election Petition and marked according to the Rules. 2 Paragraph 25 of the petition gives a list of documents presented along with the Election Petition. There is no mention whatsoever of any affidavit in the list given in paragraph 25 of the petition. ( 20 ) HE has further submitted that affidavit in Form 25 is inseparable part of the Election Petition if corrupt practice is alleged in the petition. The same must accompany the petition at the time when it is presented and registered and must be mentioned in a separate list of documents relied on by the plaintiff. ( 21 ) MR. Ganguly has further contended that the usual practice is to stitch up the affidavit in form 25 with the petition. According to him the affidavit in Form 25 not only must accompany the petition, it shall also be mentioned in the list attached to the petition and an Election Petition deserves to be dismissed at the threshold if the aforesaid provisions are not followed strictly. ( 22 ) IT is the further contention of Mr. Ganguly that if corrupt practice is alleged in the petition without the affidavit in Form 25 it has to be dismissed for not being an Election Petition at all, not having been presented in conformity with the provisions of Part VI of the said Act. He has further contended that Section 86 is legally attracted inasmuch as the copy of the petition containing allegation of corrupt practice which was served on the returned candidate through Court was not a true copy. It was an incomplete copy having been served without copy of any affidavit in Form 25. He has further contended that Section 86 is legally attracted inasmuch as the copy of the petition containing allegation of corrupt practice which was served on the returned candidate through Court was not a true copy. It was an incomplete copy having been served without copy of any affidavit in Form 25. ( 23 ) ACCORDINGLY, he has submitted that it is liable to be dismissed under Section 86 of the said Act at the threshold without any further enquiry. He has also submitted that it cannot be taken that a true copy of the petition was served upon the returned candidate because an affidavit in Form 25 and the petition are both parts of the same document. ( 24 ) IN the instant case it has been submitted that the written statement has been filed, discovery is complete and the issues have been framed and as such the petition should be dismissed on consideration of preliminary issue. ( 25 ) LEARNED Advocate for the petitioner has strongly disputed the aforesaid contentions of the respondent No. 1. He has submitted that non-filing of the affidavit referred to in the proviso to Section 83 (1) of the said Act along with the Election Petition is not fatal to attract the provisions of Section 86 of the said Act which gives the mandatory power to the Court to dismiss the Election Petition. Section 86 of the said Act provides that non-filing of the affidavit verifying the alleged corrupt practices as provided for in the proviso of Section 83 (1) of the said Act, automatically gives the power to the Court to reject Election Petition. Admittedly in the present case, the affidavit under the proviso to Section 83 (1) of the said Act affirmed on July 1, 1996 by the Election petitioner has been filed in the High Court, and it forms part of the record of the election case being Election Petition Case No. 1 of 1996, and the copy thereof has been furnished to the respondent No. 1 prior to the commencement of the trial i. e. the issue being framed. The maintainability issue has been raised on behalf of the respondent No. 1 although the respondent No. 1 is fully aware of the fact that the said affidavit has been filed in Court and a copy thereof has been served upon his Learned Advocate. The maintainability issue has been raised on behalf of the respondent No. 1 although the respondent No. 1 is fully aware of the fact that the said affidavit has been filed in Court and a copy thereof has been served upon his Learned Advocate. There is no surprise to the respondent No. 1 so far the allegations of corrupt practice in the Election Petition including the responsibility taken by the Election petitioner in swearing the affidavit verifying the said allegations of corrupt practice being a safety measure under the law as the charges of corrupt practice is serious and fatal and the same does not bring any surprise, to the respondent no. 1. ( 26 ) THE contention of Mr. Mullick learned Advocate for the petitioner is that it is not necessary that the affidavit in Form No. 25 should accompany the petition. According to him since an affidavit in Form No. 25 has been made and filed in Court the copy thereof has been supplied to the learned Advocate for the respondent No. 1, it cannot be said that the Election Petition is not maintainable. ( 27 ) HE has further submitted that the judgment and decision in the case of Dr. (Smt.) Shipra etc. v. Shantilal reported in AIR 1996 SC 1691 : (1996 AIR SCW 1772) has no application to the facts of the instant case. The question therefore arises whether the Election Petition is liable to be dismissed since the affidavit in Form No. 25 was not filed along with the petition but was subsequently supplied to the learned Advocate for the respondent. In this connection judgment 3 and decision in the case of Briz Mohan Das Agarwal v. Z. A. Ahmed reported in AIR 1964 All 523 : (1963 All LJ 789) relied upon by learned Advocate for the petitioner may be taken note of. ( 28 ) THE other question that comes up for consideration in the instant case is if the Election Petition is maintainable since affidavit in Form No. 25 required in an election petition alleging corrupt practices did not accompany the petition but the said affidavit was affirmed subsequent to the presentation to the petition on 1st July, 1996 and a copy of the same was signed by Mr. A. K. Guha advocate for the petitioners and was supplied to Mr. Saibal Ganguly, Learned advocate for the respondent no. A. K. Guha advocate for the petitioners and was supplied to Mr. Saibal Ganguly, Learned advocate for the respondent no. 1 whereas the Election Petition was filed on 6th June, 1996. The other question is if the election petition duly signed in each page but not attested can be said to be true copy. ( 29 ) JUDGMENT and decision in the case of Brij Mohan Das Agarwal v. Z. A. Ahmed reported in AIR 1964 All 523 : (1963 All LJ 789) may be taken note of. In the aforesaid decision the first respondent Ahmad was declared elected on February 28, 1962 to the U. P. Legislative Assembly from the Kopaganj Assembly Constituency in the district of Azamgarh. The validity of the Election was challenged. The Election Petition was referred by the Election Commission to the Election Tribunal for trial. The petition contained a number of allegations of corrupt practices and it is admitted that when presenting it before the Election Petition, no affidavit in support of these allegations was filed with it. In the written statement, and also by a separate application, the first respondent raised preliminary objection to the maintainability of the Election Petition, since no affidavit in support of the allegations of corrupt practice and the particulars have been filed along with the petition as required under the provision of Section 83 of the Act. The requisite affidavit was filed before the Tribunal on 24th July, 1962 together with an application stating that the omission to file it with the Election Petition was inadvertent. The said application was opposed by the first respondent, the returned candidate. The Election Tribunal thereafter framed an issue on the question whether the Election Petition was liable to be dismissed on the ground that it had not been accompanied by the affidavit and coming to the conclusion that it was so liable, it passed an order dismissing to the Election Petition. Against the said order appeal was preferred before the Allahabad High Court. Speaking for the Division Bench of the Allahabad High Court, Sri R. S. Pathak, J. as he then was, held and observed in paragraphs 13 and 14 at page 525 as follows :- 13. "the object behind the enactment of the proviso appears to be the prevention of frivolous allegations of corrupt practices. Speaking for the Division Bench of the Allahabad High Court, Sri R. S. Pathak, J. as he then was, held and observed in paragraphs 13 and 14 at page 525 as follows :- 13. "the object behind the enactment of the proviso appears to be the prevention of frivolous allegations of corrupt practices. To ensure that the Election Petition was not encumbered by such frivolous allegations and that the petitioner was invested with a sense of responsibility when filing Election Petition, the Legislature inserted this provision requiring an affidavit in support of the allegation of corrupt practice and its particulars. To our mind, the object with which the proviso was enacted could be equally served whether the affidavit was filed along with the petition or subsequently when the petition came on for trial before the Election Tribunal. That an affidavit has to be filed appears to us to admit of no doubt. But we find ourselves unable to hold that the object can be effctuated only if it is filed along with the petition. It would, it seems to us, serve its purpose just as adequately if it was filed before the Election Tribunal before any effective proceedings were taken by the Tribunal for the trial of the petition, for example before issues were framed and evidence recorded. "14. "we are inclined to this view for another reason also. Before the amendment of Ss. 85 and 90 in 1956 non-compliance with the provisions of Sections 81, 83 and 117 was liable to be visited with the penalty of dismissal of the petition. After amendment, however, Section 85 of the Act now authorise the Election Commission to dismiss the petition in case of non-compliance with the provisions of Ss. 81, 82 and 117 and Section 90 (3) empowers the Tribunal to dismiss an Election Petition which does not comply with the provision of Ss. 81 and 82. Neither the Election Commission nor the Tribunal have any power now, under Ss. 85 and 90 to dismiss a petition for non-compliance with Section 83. Parliament, therefore, expressly intended by re-writing Ss. 85 and 90 to exclude non-compliance with the provisions of S. 83 from the penalty provided in those Sections, and this is one circumstance which may also legitimately lead to the conclusion that the provisions of S. 83 are not intended to be 4 mandatory. Parliament, therefore, expressly intended by re-writing Ss. 85 and 90 to exclude non-compliance with the provisions of S. 83 from the penalty provided in those Sections, and this is one circumstance which may also legitimately lead to the conclusion that the provisions of S. 83 are not intended to be 4 mandatory. It was on the basis of similar reasoning that the Supreme Court held in 1954 SCR 892 : AIR 1954 SC 210 that the omission in that case to comply with S. 82 (which was not then mentioned in S. 85) was not fatal to the petition. It observed :"from the circumstance that S. 82 does not find a place in the provisions of S. 85 the conclusion follows that the directions contained in S. 82 were not considered to be of such a character as to involve the dismissal of a petition in limine. . . . . . . . . " and further that "it is not possible to accept the view that in spite of the provisions of S. 85 failure to comply strictly with the provisions of S. 82 was the same consequences as are contained in S. 85". ( 30 ) IT was also held in the aforesaid decision in paragraph 19 at page 525 as follows :"we are, therefore, of the view that it was not mandatory that the affidavit required by the proviso to S. 83 (1) should accompany the Election Petition when the petition was presented before the Election Commission, and that it was open to the Election Tribunal to receive the affidavit when the petition had been transferred to it for trial. " ( 31 ) JUDGMENT and decision in the case of F. A. Sapa etc. v. Singora reported in AIR 1991 SC 1557 may be taken note of. In the aforesaid decision the Bench of 3 Judges of the Supreme Court held as follows (at p. 1574-1575) :-"28. "a charge of corrupt practice has a two dimensional effect : its impact on the returned candidate has to be viewed from the point of view of the candidate's future political and public life and from the point of view of the electorate to ensure the purity of the election process. "a charge of corrupt practice has a two dimensional effect : its impact on the returned candidate has to be viewed from the point of view of the candidate's future political and public life and from the point of view of the electorate to ensure the purity of the election process. There can, therefore, be no doubt that such an allegation involving corrupt practice must be viewed very seriously and the High Court should ensure compliance with the requirements of S. 83 before the parties go to trial. This is quite clear from the observations of this Court in the case of K. M. Mani v. P. J. Anthony, (1979) 1 SCR 701 : AIR 1979 SC 234 . While defective verification of a defective affidavit may not be fatal, the High Court should ensure its compliance before the parties go to trial so that the party required to meet the charge is not taken by surprise at the actual trial. It must also be realised that delay in complying with the requirements of S. 83 read with the provision of the Code of the omission to disclose the grounds or source of information, though not fatal would weaken the probative value of the evidence ultimately lead at the actual trial. Therefore, an election petitioner can afford to overlook the requirements of S. 83 on pain of weakening the evidence that he may ultimately tender at the actual trial of the election petition. That is because as held in Mani's case the charge of corrupt practice has to be proved beyond reasonable doubt and not merely by preponderance of probabilities. Allegation of corrupt practice being quasi-criminal in nature, the failure to supply full particulars at the earliest point of time and to disclose the source of information promptly may have an adverse bearing on the probative value to be attached to the evidence tendered in proof thereof at the trial. Therefore even though ordinarily a defective verification can be cured and the failure to disclose the grounds or sources of information may not be fatal, failure to place them on record with promptitude may lead the court in a given case to doubt the veracity of the evidence ultimately tendered. If, however, the affidavit or the schedule or annexure form an integral part of the election petition itself strict compliance would be insisted upon. If, however, the affidavit or the schedule or annexure form an integral part of the election petition itself strict compliance would be insisted upon. " ( 32 ) IT therefore appears that even though there may be defective verification of defective affidavit which may not be fatal, the High Court should ensure its compliance before the parties go to trial. In the instant case affidavit has been filed before the High Court even before the written statement is filed and as such mere fact that the affidavit has not accompanied the petition does not appear to be fatal. ( 33 ) THE judgment and decision in the case of Dr. (Smt.) Shipra v. Shantilal Khoiwal reported in AIR 1996 SC 1691 : (1996 AIR SCW 1772), in my view, does not apply to the instant case. The said decision is on the question if the copy of the affidavit in Form No. 25 which is required in case where allegation of corrupt practice has been made against the returned candidate must have to be supplied to the returned candidate. In the aforesaid decision it was held that the affidavit in Form No. 25 forms essential part of the Election Petition alleging corrupt practice and as such if the same has not been supplied the same will amount to non-supply of true copy of the Election 5 Petition. In the instant case it is not in dispute that a copy of such affidavit in Form No. 25 has also been supplied but the same did not accompany the Election Petition but was supplied to the returned candidate before the trial commenced. ( 34 ) IN the instant case, an affidavit under the provision of Section 83 affirmed on July, 1996 by the Election petitioner and has formed part of the record of the Election and copy thereto has been furnished to the respondent No. 1 prior to the commencement of trial, that is, before issue being framed. The issue as to maintainability has been raised although the petitioner was supplied with the copy of the affidavit. Accordingly, the plea or objection raised on the basis of issue No. 7 does not appear to be valid. ( 35 ) IN view of the aforesaid it cannot be said that there is no non-compliance with the mandatory provisions of the statute. Accordingly, the plea or objection raised on the basis of issue No. 7 does not appear to be valid. ( 35 ) IN view of the aforesaid it cannot be said that there is no non-compliance with the mandatory provisions of the statute. ( 36 ) ACCORDINGLY the preliminary objections raised on the maintainability of the Election Petition are not accepted and there is no reason to hold that the Election Petition is not maintainable. The first two issues as to maintainability fail. The other issues will be taken up for hearing on 22nd July, 1997. Order accordingly.