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Rajasthan High Court · body

2009 DIGILAW 2413 (RAJ)

C. P. Joshi v. Kalyan Singh Chouhan

2009-11-19

PRAKASH TATIA

body2009
Hon'ble TATIA, J.—The petitioner has submitted an application for summoning of the record, documents etc. which are sought to be summoned from the District Election Officer. The documents are as under:- "1. Nomination Papers presented by Shri Kalyan Singh Chouhan along with affidavit. 2. Declaration of Result of election in Form No. 21C of Conduct of Election Rules, 1961. 3. Return of Election in Form 31E of Conduct of Election Rules, 1961. 4. Electoral Roll relating to Polling station No. 39. 5. Electoral Roll relating to Polling station No. 40. 6. Electoral Roll relating to Polling station No. 27 7. Electoral Roll relating to Polling station No. 61. 8. Electoral Roll relating to Polling station No. 73 9. Electoral Roll relating to Polling station No. 117. 10. Electoral Roll relating to Polling station No. 180 11. Electoral Roll relating to Polling station No. 199 12. Market copy of electoral roll relating to Polling station No. 39 13. Marked copy of electoral roll relating to Polling station No. 40 14. Marked copy of electoral roll relating to Polling station No. 27 15. Marked copy of electoral roll relating to Polling station No. 61 16. Marked copy of electoral roll relating to Polling station No. 73 17. Marked copy of electoral roll relating to Polling station No. 117 18. Marked copy of electoral roll relating to Polling station No. 180 19. Marked copy of electoral roll relating to Polling station No. 199 20. Register of Voters in Form No. 17A relating to Polling Station No. 39 21. Register of Voters in Form No. 17A relating to Polling Station No. 40 22. Register of Voters in Form No. 17A relating to Polling Station No. 27 23. Register of Voters in Form No. 17A relating to Polling Station No. 61 24. Register of Voters in Form No. 17A relating to Polling Station No. 73 25. Register of Voters in Form No. 17A relating to Polling Station No. 117 26. Register of Voters in Form No. 17A relating to Polling Station No. 180 27. Register of Voters in Form No. 17A relating to Polling Station No. 199 28. List of Tendered Votes in Form No. 17B relating to Polling Station No. 27 29. List of Tendered Votes in Form No. 17B relating to Polling Station No. 61 30. List of Tendered Votes in Form No. 17B relating to Polling Station No. 73 31. Register of Voters in Form No. 17A relating to Polling Station No. 199 28. List of Tendered Votes in Form No. 17B relating to Polling Station No. 27 29. List of Tendered Votes in Form No. 17B relating to Polling Station No. 61 30. List of Tendered Votes in Form No. 17B relating to Polling Station No. 73 31. List of Tendered Votes in Form No. 17B relating to Polling Station No. 117 32. List of Tendered Votes in Form No. 17B relating to Polling Station No. 180 33. List of Tendered Votes in Form No. 17B relating to Polling Station No. 199 34. Video CDs containing the videography of polling Process relating to Polling Station No. 39 35. Video CDs containing the videography of polling Process relating to Polling station No. 40 36. Electronic Voting Machine along with Controlling unit of polling station No. 39. 37. Electronic Voting Machine along with Controlling unit of polling station No. 40 38. Electronic Voting Machine along with Controlling unit of polling station No. 27 39. Electronic Voting Machine along with Controlling unit of polling station No. 61 40. Electronic Voting Machine along with Controlling unit of polling station No. 73 41. Electronic Voting Machine along with Controlling unit of polling station No. 117 42. Electronic Voting Machine along with Controlling unit of polling station No. 180 43. Electronic Voting Machine along with Controlling unit of polling station No. 199 44. Tendered Ballot papers at polling station Nos. 27, 61, 73, 117, 180 and 199. 45. Record relating to inclusion of the name of Smt. Kalpana Kunwar/Kalpana singh wife of respondent Kalyan Singh Chouhan in the electoral roll pertaining to Polling Station No. 86 (Numbered 39 in the election held on 4.12.2008) as also Polling Station No. 83 (Numbered 40 in the election held on 4.12.2008) of Nathdwara Legislative Assembly Constituency." 2. The petitioner's contention is that all these documents are material documents and are in possession of the District Election Officer, Rajsamand. The petitioner in the election petition earlier sought order from this Court that all material including documents relating to the election in question may be preserved and may not be destroyed. The petitioner's contention is that all these documents are material documents and are in possession of the District Election Officer, Rajsamand. The petitioner in the election petition earlier sought order from this Court that all material including documents relating to the election in question may be preserved and may not be destroyed. Then, this Court on 25.2.2009 directed the District Election Officer, Rajsamand to preserve all the election material including the voting machines and their controlling units of Nathdwara Legislative Assembly Constituency No. 176 and it has been ordered that it shall not be opened nor it may be given for inspection to anybody without the leave of the court. It is submitted by the learned counsel for the petitioner that since the petitioner has denied the facts relating to the contentions of the petitioner which can be proved only by producing original documents and since the documents are in power and possession of the District Election Officer, Rajsamand and, therefore, without summoning these documents, the petitioner will not be able to prove his case. It is necessary to summon the documents before the issues are framed and evidence of the parties start. The learned counsel for the petitioner, however, submitted that the Electronic Voting Machines as well as the tendered ballet papers at Polling Station Nos. 27, 61, 73, 117, 180 and 199 can be summoned at appropriate stage if they are not summoned and are brought before the Court at this stage. 3. The learned counsel for the respondent submitted that the polling agents of the petitioner and the polling agents of the other contesting candidates at six polling stations referred in the application, did not challenge the identity of the voters who cast their votes at the said polling stations by Electronic Voting Machines and allowed them to cast their votes without raising any objection and, therefore, the petitioner is not entitled to summon the documents mentioned at S.No. 6 to 19, 22 to 33 and 38 to 43. It is also submitted that the petitioner is required to prove the allegations on which he has chosen to base his election petition and he cannot be permitted to have a roving and fishing enquiry into the records pertaining to election, whose inspection and production is prohibited by statutory rules in the interest of maintaining and preserving the secrecy of votes. For twice casting vote by respondent's wife Smt. Kalpana Kunwar, it has been stated that she did not cast her vote at Polling Station No. 39 of Part 484 of Nathdwara Legislative Assembly Constituency No. 176 and she cast her vote only at Polling Station No. 40 in Part 727 of Nathdwara Legislative Assembly Constituency No. 176 and that is why, no objection was raised by any of the polling agents including polling agent of the petitioner at the time of polling. Therefore, on this ground also, the petitioner is not entitled to summon the documents mentioned at S.Nos. 5, 12, 13, 20, 21, 34 to 37 and 45. In reply, the respondent stated that the documents mentioned at S.No. 1 in the application and the affidavit with the said document dated 15.11.2008 and 17.11.2008 are not disputed and in view of the facts stated in the application, these undisputed documents need not to be summoned. The same is the position about documents mentioned at S.Nos. 2 and 3 which are not disputed and, therefore, they may also not be summoned. The respondent then stated various facts about other documents and submitted that the petitioner is neither entitled to have inspection nor can claim production of documents as the inspection and production of the documents is prohibited by rule 93 of the Rules of 1961 and, therefore, he is not entitled to summon the Electronic Voting Machines. It has also been stated by the respondent that unless the petitioner proves that the vote or votes were cast by the persons who were not genuine voters, the allegation of the petitioner that the votes cast by them should not have been counted and they should be excluded from the tally of the valid votes, cannot be entertained. 4. I considered the arguments of the learned counsel for the parties. 5. It is not in dispute that the documents and articles sought to be produced in this election petition are not in power and possession of the petitioner. The petitioner's contention is that the respondent's wife Kalpana Kunwar had cast vote twice and, therefore, her votes are required to be excluded from the votes cast to the respondent. The petitioner also contended that six persons, by impersonation, had cast vote place of genuine voters and the genuine voters obtained the tendered ballet papers from the election officer and cast their votes. The petitioner also contended that six persons, by impersonation, had cast vote place of genuine voters and the genuine voters obtained the tendered ballet papers from the election officer and cast their votes. The petitioner is required to prove these facts to get the relief from the court. The documents and articles are relevant for the purpose of deciding the election petition and that cannot be disputed. 6. The first question for which more emphasis has been given by the learned counsel for the respondent is that whether in view of the bar created by rule 93, the petitioner cannot seek production of the documents referred in Rule 93.Rule 93 provides that documents and the articles referred in rule 93 shall not be opened and their contents cannot be inspected or produced before any person or authority except under the order of the competent court. Therefore, rule 93 is not the absolute bar against the inspection and production of the documents and articles referred in rule 93 and the court is competent to allow inspection as well as production of the documents. Rule 12 in regard to election petition under the Representation of People Act, 1951 framed by the High Court of Rajasthan, is a rule under which the court can order for discovery of document, inspection of document disclosed and further an order for production of documents which are in possession and power of the party. The petitioner is not seeking production of documents from the respondents, therefore, rule 12, as such has no application for seeking production of document from the District Election Officer, who is not party in the present election petition nor that party could have been party in the election petition. The identical rule is also in the Rules of the High Court of Judicature for Rajasthan, 1952, which is the rule 745(L), which also provides that after pleadings in the election petition are received, a date shall be fixed at the discretion of the Judge for (1) discovery of document, (2) inspection of the documents disclosed, and (3) the production of documents which are in the possession and power of the parties. It appears from the order dated 13.10.2009 that the petitioner initially wanted to summon the documents and articles referred in present application with the help of rule 12 of the rules of 1951 referred above. It appears from the order dated 13.10.2009 that the petitioner initially wanted to summon the documents and articles referred in present application with the help of rule 12 of the rules of 1951 referred above. But, the application has been submitted by the petitioner without mentioning any provision of law, for that, it is not very material as on this ground the petitioner's application cannot be rejected. The learned counsel for the respondent submitted that if the documents cannot be summoned under Rule 12 of the Rules of 1951 or under rule 745(L) of the High Court Rules, then there is no other provision under which the documents can be summoned, nor under Order 13 Rule 10, CPC, because of the reason that the documents and articles are not in possession and power of the any court. I do not find any force in the submission referred above for the simple reason that if it is held that the court cannot summon the documents for production in the election petition, then it runs contrary to rule 93 of the Rules of 1961 which itself clearly provides that the documents and the articles referred in rule 93 to maintain the secrecy of election, cannot be opened and inspection or produced but this rule itself provides that it can done under the order of the competent court. The learned counsel for the petitioner in view of that, did not question the power of this Court in passing the order for production of the documents and articles but submitted that the documents cannot be summoned in rule 12 of the Rules of 1951 or under rule 745(L) of the Rules of 1952 or under Order 13 Rule 10, CPC. When rule 93 of the conduct of Election Rules, 1961 itself empowered the court to summon the documents for production in court then this Court need not to search any source of power for ordering production of the documents and articles in the Court. Therefore, it is held that even without the help of rule 12 of the Rules of 1951, rule 745(L) of the Rules of 1952 and without the help of Order 13 Rule 10, CPC, the Court can summon the documents and articles referred in rule 93. 7. The principles of Code of Civil Procedure applies to the election petitions, was the contention of the learned counsel for the respondent himself. 7. The principles of Code of Civil Procedure applies to the election petitions, was the contention of the learned counsel for the respondent himself. Therefore, principle with the help of principle as given in Order 16 Rule 6 it is clear that the Court can summon any person to produce the documents without being summoned to give evidence. Therefore, the documents and the articles which are covered or not in rule 93, also can be produced in court if they are not in possession of the parties to the proceedings and are necessary to prove fact in issue which may arise, by summoning the documents by summoning a person who is having in custody of the documents and articles. In that situation, it is not necessary that the person summoned to produce the document, as it has been specifically provided in Order 16 rule 6, CPC that any person summoned merely to produced a document, shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same. Meaning thereby, an order can be passed to a person to produce the document who is not party in the proceeding and he can comply with the said order of the Court by producing the documents through any body and not necessarily himself to produce the documents. Therefore, following the principles, the Court trying the election petition also can summon the documents and articles lying in possession of any third party when the documents and articles are required to prove a fact in issue relevant for the purpose of deciding the election petition. 8. Therefore, following the principles, the Court trying the election petition also can summon the documents and articles lying in possession of any third party when the documents and articles are required to prove a fact in issue relevant for the purpose of deciding the election petition. 8. Even if there would not have been any specific provision empowering the court to summon the documents and articles, relevant for the purpose of deciding the election petition, the court has inherent powers to summon the documents and articles because of the reason that the Court having power to decide an issue involved in the petition/litigation, is empowered to order to procure the evidence by process of Court otherwise the very power of the Court to decide the issue will be effected and it will be the mockery of law to hold that the material evidence is in existence and is not in possession of the party, therefore, the party will not be allowed to prove the fact merely on the ground that the evidence is in power and possession of third party who is not party in the petition. 9. Now the question survives is that whether this is the right stage when the documents should be summoned or can be summoned only after prima facie satisfaction is recorded by the court about the claim of the petitioner. The learned counsel for the respondent's argument is in the line of the argument wherein issue may be relation to claim for re-counting of the votes. In that situation, it has been held in various judgments that the re-counting cannot be ordered by the Court without prima facie satisfaction of the Court for such order, obviously, which can be after evidence of the claimant and may be also after evidence of the respondent, depending upon the facts of the case. The same proposition cannot be applied when the documents which are sought to be summoned, are not violating the secrecy of the election process and votes. The documents and articles which are sought to be summoned by the petitioner have already been relied upon by the petitioner, as he submitted complete list of documents along with the election petition itself. The same proposition cannot be applied when the documents which are sought to be summoned, are not violating the secrecy of the election process and votes. The documents and articles which are sought to be summoned by the petitioner have already been relied upon by the petitioner, as he submitted complete list of documents along with the election petition itself. The petitioner clearly stated that the original documents mentioned in the list submitted with the election petition are in power and possession of the District Election Officer, Rajsamand and the same shall be got produced from him. This has been done by the petitioner to comply with the requirement of Order 7 rule 14,CPC. 10. Order 7 Rule 14, CPC provides that where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. The petitioner since had no documents in his power and possession which are referred in the list, therefore, as per sub-rule (2) of Rule 14 of Order 7, CPC, the petitioner stated that the above documents are not in power and possession of the petitioner and also disclosed that in whose power and possession the said documents are. 11. To find out whether at this stage, these documents can be summoned, it will be appropriate to apply the principle as given in Order 14 Rule 4 CPC. Order 14 Rule 4 CPC is as under:- "Court may examine witnesses or documents before framing issues.-Where the Court is of opinion that the issue cannot be correctly framed without the examination of some person not before the Court or without the inspection of some document not produced in the suit, may adjourn the framing of the issues to a day not latter than seven day, and may (subject to any law for the time being in force) compel the attendance of any person or the production of any document by the person in whose possession or power it is by summons or other process." 12. Rule 4 of Order 14, CPC referred above clearly deals with the situation like this, which provides that for proper framing of the issues if the documents are needed, they can be got produced and specifically empowered the court to compel the attendance of any person, to produce the documents in his possession. Therefore, in view of the specific statutory provisions, which are in consonance with the fair rule and principles of natural justice, the Court can summon documents which are in power and possession of any person before issues are framed. 13. If we look into the prayer of the petitioner, then we can find that the petitioner is seeking production of the documents which are relevant for proving the material facts and allegations levelled by the petitioner that six persons, by impersonation, had cast votes in place of real electors and the respondent in his reply to the election petition, has not admitted the documents referred at S.No. 4 to 33 and if these documents are not produced at this stage and will be summoned after some evidence of the petitioner, then that will cause only delay, therefore, these documents can be summoned at this stage, rather say, required to be summoned at this stage and after obtaining admission and denial on these documents from the respondents, the proper issue may be framed and unnecessary evidence can be excluded. The video CDs referred at S.Nos. 34 and 35 are also not the secrete articles and they are also relevant which will also be required before evidence of the petitioner starts. The Electronic Voting Machines, referred at S.Nos. 36 to 43 of the list as well as the tendered ballet papers referred at S.No. 44 cannot be summoned at this stage without recording any prima facie satisfaction of the Court for ordering summoning of these documents. However, the record relating to the inclusion of the name of Kalpana Kunwar/Kalpana Singh in the electoral roll pertaining to Polling Station No. 86 (Numbered 39 in the election held on 4.12.2008) as also Polling Station No. 83 (Numbered 40 in the election held on 4.12.2008) of Natdwara Legislative Assembly Constituency is also required to be summoned, as these documents are also relevant in view of the allegations made in the election petition and by summoning them, the proper issues can be framed and unnecessary evidence may be excluded. 14. 14. Summoning of these documents, at this stage, will help the Court in framing the proper issues and will help in placing the burden of issue properly upon the party and ultimately may avoid unnecessary evidence. 15. Therefore, the petitioner's application for summoning of documents is allowed and the documents mentioned in the list of the documents at S.Nos. 4 to 35 and 45 be summoned from the District Election Officer, Rajsamand, who shall be free to send the all above material documents and articles personally or through his authorised person with the authority letter and may be submitted before the Deputy Registrar (Judicial), Rajasthan High Court, Jodhpur, who may keep all these documents and articles in safe custody. 16. The petitioner may submit the summons for production of these documents with process fee, within a period of three days from today, upon which the summons be issued and may be given `dasti' to the learned counsel for the petitioner. 17. Put up for admission and denial and for framing issues on 8.12.2009.