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2002 DIGILAW 602 (MAD)

K. C. Palanisamy v. M. Chinnasamy

2002-07-11

A.RAMAMURTHI

body2002
Judgment : 1. These applications are filed by the petitioner to permit Thiru S.Iyer the then District Collector, Karur and the Returning Officer for the election to No. 26, Karur Parliamentary Constituency held on 5.9.1999 to be examined as a court witness, to permit screening of the video taken by the videographers appointed and mark then in the case and to permit the petitioner to cross examine Thiru S.Iyer on all points relating to the election. 2. The case in brief for disposal of all the applications-is as follows:-The petitioner filed the main election petition seeking an order for scrutiny and recounting of the ballot papers in respect of Karur Parliamentary Constituency election held in September 1999. He had also sought for declaration that the election of the 1st respondent is void and illegal and for a further direction that-he was the duly elected successful candidate. The election of the 1st respondent has been challenged on the ground of corrupt practice and serious irregularities in counting followed by an arbitrary order of the 17th respondent, who happened to be the Returning Officer of the Constituency in rejecting the petitioner's complaint dated 6.10.1999. He had already filed O.A.No.22 of 2001 for the attendance of the 17th respondent in the election petition and the application was also allowed by the common order dated 4.2.2002 along with the other applications. In fact, subpoena was also ordered upon the 17th respondent to appear before the Court on 1.7.2002 to give evidence. Thiru S.Iyer, the Returning Officer of the constituency cannot be examined as the petitioner's witness inasmuch as there is a justifiable apprehension that he would not give evidence supporting the petitioner. It is a specific complaint of the petitioner himself that the Returning Officer did not act impartially and it is unlikely that he will support the case of the petitioner. He took out summons to him to produce relevant documents so that he can be extensively cross examined by his counsel to prove that he did not properly, discharge his duties required under law. Hence, he should-be summoned as a court witness and to be examined in Court relating to the said election including the allegations made against him. For all practical purposes, he has to be treated as an adversary and technically speaking, he is the most competent witness to be examined by the successful candidates. Hence, he should-be summoned as a court witness and to be examined in Court relating to the said election including the allegations made against him. For all practical purposes, he has to be treated as an adversary and technically speaking, he is the most competent witness to be examined by the successful candidates. The evidence of Thiru S.Iyer is-indispensable and the trial of the election petition will be completed without- his evidence. This Court has got jurisdiction to invoke the provisions of Civil Procedure Code and Evidence Act for the ultimate object of upholding the interest of justice and fair play. The Returning Officer should be directed to file the list of Videographers to whom the work of taking videos during the counting process was-entrusted. The video cassettes have already been filed into this Court as an exhibit and it would be just and proper that the said video cassettes is screened and viewed by the Court. 3. The 1st respondent filed a common counter affidavit to all the three applications and denied the various averments. O.A.No.22 of 2002 was not allowed in full. The petitioner has taken subpoena to the 17th respondent in pursuance of the order in O.A.No.22 of 2002 in the affidavit filed in O.A.No.22 of 2002, the deponent has not stated that he wants to examine the Returning Officer as a court witness. The allegation made against the Returning Officer are all false and invented. The petitioner cannot convert-the election petition as an appeal against the order of the Returning officer rejecting the recount petition. The petitioner wants a rowing enquiry, which is not permissible in-law. 7 documents have been referred to in O.A.No.22 of 2002, but this Court issued subpoena regarding item No.7 only. The Returning Officer cannot be cross examined because he is not the author of the video cassettes. The order dated 4.2.2002 in O.A.No.22 of 2002 has been invited by the petitioner and is now trying to plead a new case. The petitioner has not made out to examine the Returning Officer as a court witness. The petitioner as P.W.I has already given evidence and marked the video cassettes. If the petitioner does not want to examine the Returning Officer as his witness, there ends the matter. There is no 'necessity to examine him as a court witness. The petitioner has not made out to examine the Returning Officer as a court witness. The petitioner as P.W.I has already given evidence and marked the video cassettes. If the petitioner does not want to examine the Returning Officer as his witness, there ends the matter. There is no 'necessity to examine him as a court witness. He cannot request the Court to summon the Returning Officer as a court witness for the purpose of cross examination on all points. No party has got a legal right to request the Court to issue summons to the witness as court witness to prove their case. The petitioner is trying- to nullify the order passed in O.A.No.22 of 2002. 4. The allegation in para 8 are all self serving. Simply because the deponent has made irresponsible allegations of bias against the Returning Officer and wants to call him as a adversary, it does not make out a ground for summoning him as a court witness. If this kind of prayer is allowed, this will prejudice the fair trial of the election petition. The petitioner is now trying to procure evidence through the process of the court. Nobody has taken the responsibility of the authenticity of the video cassettes. It is settled law that the parties have no right to move the application under Order 16, Rule 14 of Civil Procedure Code. Section 154 of Evidence Act may be relevant. The petitioner had filed these petitions on frivolous grounds and as such, they are liable to be dismissed. 5. Heard the learned Senior Counsel for the parties. 6. The points that arise for consideration are .(1) Whether the petitioner can be permitted to examine Thiru S.Iyer, the Returning Officer of the Constituency to be examined as a court witness? (2) Whether the petitioner can be permitted to cross examine Thiru S. Iyer, the Returning Officer of the Constituency on all points relating to the election held on 5.9.1999 ? (3)-Whether permission can be granted to screen the videos taken by the videographers appointed and marked in the case ?- 7. Points: It is admitted that the election to the Karur Parliamentary Constituency took place on 5.9.1999 and the 1st respondent was the successful candidate. The petitioner has filed the election petition and raised various grounds. The evidence of the witnesses on the side of the petitioner is almost complete. Points: It is admitted that the election to the Karur Parliamentary Constituency took place on 5.9.1999 and the 1st respondent was the successful candidate. The petitioner has filed the election petition and raised various grounds. The evidence of the witnesses on the side of the petitioner is almost complete. Now, the petitioner has filed these applications seeking permission to examine the Returning Officer of the Constituency, who was the 17th respondent in the election petition, as a court witness and he should be cross examined on all points relating to the election held on 5.9.1999 and similarly, the video copy given to the petitioner also should be screened. These applications are stoutly opposed by the 1st respondent alleging that previously O.A.No.22 of 2002 has been filed by the petitioner himself and it was allowed and subpoena was also issued to the 17th respondent to be examined as a witness on behalf of the petitioner. Now, these petitions have been filed to examine the Returning Officer as a court witness and no valid grounds have been made out. Moreover, the petitioner cannot be permitted to have a rowing enquiry relating to all matters. The Returning Officer has acted fairly and properly and he cannot be permitted to be cross examined on all aspects relating to the election. In short, the petitioner is attempting to review the order passed by this Court dated 4.2.2002. 8. The learned senior counsel for the petitioner brought to the notice of this Court the allegations made against the Returning Officer alleging that he had acted in a biased manner and he had rejected the representation given on behalf of the petitioner also. Ex.P-10 as been marked in the case and it is the order said to have been passed by the Returning Officer, wherein there are alterations in the date. A careful reading of the main election petition discloses that severe allegations have been made against the Returning Officer of the Constituency. When such allegations are levelled against the Returning Officer, the petitioner cannot be expected to summon him as his witness. Moreover, the 17th respondent was the District Collector as well as the Returning Officer of the Constituency and he cannot be examined as a witness on a particular side. When such allegations are levelled against the Returning Officer, the petitioner cannot be expected to summon him as his witness. Moreover, the 17th respondent was the District Collector as well as the Returning Officer of the Constituency and he cannot be examined as a witness on a particular side. The order dated 4.2.2002 clearly indicates that in respect of O.A.No.22 of 2002, it is stated that subpoena can be issued to the witnesses for giving evidence and also to produce only item No.7, namely, original video cassette. It is not stated whether subpoena can be issued to the witness to be examined on the side of the petitioner or as a court witness. Similarly, in respect of O.A.No.45 of 2002, this Court passed an order on 18.6.2002 and the application was allowed in part and subpoena was ordered to issue to the Returning Officer to give evidence and produce the copy of the report submitted by the Returning officer to the Chief Election Commission, copy of the order appointing the Videographer for recording the counting process along with the list of names of videographer and the copy of the report submitted by the observers to the Chief Election Commission. 9. The learned senior counsel for the petitioner also relied upon Order 16, Rule 14 of Civil Procedure Code that Court may of its own accord summon as witnesses strangers to suit. No doubt, the Court has got power to examine any person as a court witness; but it is the duty of the petitioner to make out a case that the Returning Officer has to be examined as a court witness and not a witness on behalf of the petitioner. 10. Section 154 of the Evidence Act indicates that the Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross examination by the adverse party. Section 165 of the Evidence Act also gives power to the Judge to put questions or order production. 11. Para 10 of the main election petition clearly indicates that the order passed by the Returning Officer was typed even on 6.10.1999; but subsequently overwritten as 7.10.1999. The Returning Officer appears to have despatched the order even on 6.10.1999 i.e. even before the conclusion of the counting and publication of results. 11. Para 10 of the main election petition clearly indicates that the order passed by the Returning Officer was typed even on 6.10.1999; but subsequently overwritten as 7.10.1999. The Returning Officer appears to have despatched the order even on 6.10.1999 i.e. even before the conclusion of the counting and publication of results. In other words, the order dated 7.10.1999 was actually signed on 6.10.1999 i.e. on the very date of the complaint when the counting process was going on. No opportunity was given to the complainant to be present during the enquiry conducted by the Returning Officer. The aforesaid allegations have been stated by the petitioner to show that the Returning Officer had acted in a biased manner and he had not acted impartially. When this being the state of affairs, he cannot be summoned as a witness by the petitioner on-his side. Further more, the Returning Officer is a public servant, who was entrusted with the work of conducting the election relating to a Parliamentary constituency and it is just and necessary that he Should be examined as a court witness, so that ultimately no one can claim that he was a witness on a particular side. The Returning Officer is competent to speak only what transpired at the time of election and as such, I am of the view that it is just and necessary that he should be examined as a court witness and not as a witness on either side. Besides he was also made a party, 17th respondent in the main election petition itself and subsequently he was deleted from the array of parties as per the order in O.A.No.28 of 2000 dated 28.1.2002. 12. The learned senior counsel for the petitioner relied on the decision reported in Mohammad Ibrahim v. Shaik Mohammed, AIR 1949 Mad. 292 wherein it is state as follows: "The Court has also ample power under Order 16, Rule 14, Civil P.C. to examine not only the parties and the witnesses summoned by them but also other persons whom the Court thinks are necessary If a jurisdiction exists in a Court, the Court has always the right and duty to exercise that power as effectively as possible. It is- an inherent jurisdiction of the Court to make its power effective even though there is no specific provision in the Code or elsewhere to convex that particular power". 13. It is- an inherent jurisdiction of the Court to make its power effective even though there is no specific provision in the Code or elsewhere to convex that particular power". 13. Reliance is also placed on Sheik Dada Sahib v. Jammu Latchanna, AIR 1954 Mad. 80 under section 165 of the Evidence Act that if the party calling witness but not examining, then the Court can examine him as Court witness. 14. It has been relied on R.M. Seshadri v. G.V.Pai, AIR 1969 SC 692 relating to the power of the Civil Court to summon court witnesses as per Order 16, Rule 14 of Civil Procedure Code, wherein it is stated as follows:- It would appear therefore that in the absence of any prohibition contained in the law, the Court has the power to summon a court witness if it thinks that the ends of justice require or that the case before it needs that kind of evidence. It must be remembered that an election petition is not an action at law or a suit in equity. It is a special proceeding. The law even requires that an election petitioner should not be allowed to withdraw an election petition which he has once made and that the election petition- may be continued by another person, so long as another person is available". 15. Reliance is also placed on Md.Umasaheeb v. Kadalaskar, AIR 1970 SC 61 that power is wider .under section-than under Order 16, Rule 14, Civil P.C. and section does not prescribe any pre-requisite. 16. Reliance is also placed on M.Omcar v. Revuri.Prakash Reddy and others, 1999 (4) SCC 508 , wherein the Returning Officer was examined as a court witness. 17. The learned senior counsel for the petitioner further pointed out that by examining the Returning Officer as a court witness, not only the petitioner is entitled to get an opportunity to cross examine him but a similar opportunity for cross examination on behalf of the 1st respondent is also available and, as such, no prejudice will be caused to him. In view of the reasons stated supra, I am of the view that the Returning officer is a person to be examined as a court witness and an opportunity can be given to either side to cross examine him relating to relevant matters to decide the election petition. In view of the reasons stated supra, I am of the view that the Returning officer is a person to be examined as a court witness and an opportunity can be given to either side to cross examine him relating to relevant matters to decide the election petition. The learned senior counsel for the petitioner sought permission to cross examine the Returning Officer on all points relating to election held on 5.9.1999. The petitioner cannot be permitted to put all points relating to the election; but his cross examination should be confined only to the averments made-in the main election petition and not beyond that. Similarly, the petitioner sought permission for screening of the video taken by the videographers. In fact, the copy of the video was given only by the Returning Officer of the Constituency and now by examining the Returning Officer, it will be proved in accordance with law and ultimately since number of allegations have been levelled against the Returning Officer, the screening-of the video also is necessary to appreciate the evidence adduced by-the witnesses and these points are answered accordingly. 18. For the reasons stated above, O.A.No. 402 and 403 of 2002 are allowed. So far as O.A.No.404 of 2002 is concerned, the petitioner is permitted to cross examine the Returning Officer only with regard to the grounds raised in the main election petition and also the documents marked in the case. The Returning officer can be examined even with reference to the orders passed in O.A.No.22 and 45 of 2002 also. Issue subpoena to the Returning Officer to be examined as a Court witness on 17.7.2002 at 2.15 pm.