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2011 DIGILAW 48 (KAR)

Kavitha Mahesh v. Chief Election Commissioner

2011-01-12

D.V.SHYLENDRA KUMAR

body2011
ORDER D.V. Shylendra Kumar, J : 1. Petitioner and Sri C. Shashikantha, learned Counsel for the respondent have been heard on acceptance or otherwise of the affidavit evidence sought to be placed before the Court by the petitioner as her evidence to support the petition pleadings. . 2. Sri C. Shashikantha, learned Counsel for the respondent, has raised objections for accepting the evidence of the petitioner in the form of an affidavit and has submitted that the evidence of the petitioner should be necessarily deposed in person cannot be given in writing but can only be oral and such is the procedural requirement even under the Code of Civil Procedure, 1908 [CPC] as contemplated in terms of Rules 4 & 5 of Order XVIII, reading as under: ORDER-XVIII HEARING OF THE SUIT AND EXAMINATION OF WITNESSES 4. Recording of evidence.-(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence: Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court. (2) The evidence [cross-examination and re-examination) of the witnesses in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it: Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit. (3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit. (4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination: Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. (4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination: Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. (5) The report of the Comissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time. (6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule. (7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Comissioner. (8) The provisions of Rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule." 5. How evidence shall be taken in appealable cases. In cases in which an appeal is allowed, the evidence of each witness shall be.- (a) taken down in the language of the Court- (i) in writing by, or in the presence and under the personal direction and superintendence of, the Judge, or (ii) from the dictation of the Judge directly on a typewriter; or (b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge. 3. Petitioner, on the other hand, has drawn support from the provisions of Rule 4 of Order XVIII CPC, to submit that affidavit evidence can be accepted and in this regard has further submitted that the provisions of Rule 4 which govern all situations should prevail over the provisions of Rule 5 and more so for the reason that whereas the provisions of Rule 5 of Order XVIII CPC were introduced by way of an amendment to CPC in the year 1976, the present form of Rule 4 of Order XVIII CPC is in terms of an amendment to CPC by Amendment Act No. 46 of 1999 and Section 12 of the Act 22 of 2002 with effect from 1-7-2002 and therefore this should prevail. 4. 4. Per contra, learned Counsel for the respondent submits that even assuming that Rule 4 of Order XVIII CPC has undergone changes subsequent to the introduction Rule 5 of Order XVIII CPC, the legislature being conscious of the special provisions made under Rule 5 of Order XVIII CPC in respect of situations governed by the proceedings leading to an order which is made appealable and having consciously retained the provisions, it should be taken that the provisions of Rule 5 of Order XVIII CPC should prevail over the provisions of Rule 4 of Order XVIII CPC, which is a provision general in nature, whereas the provisions of Rule 5 relate to specific situations resulting in appealable orders. 5. Sri C. Shashikantha, learned Counsel for the respondent, has also made submissions that the procedure contemplated under the provisions of CPC are not necessarily to be followed in all its hues and shades while trying an election petition; that even in terms of the judgment of the Supreme Court in the case of Kailash Vs. Nankhu and Others (ILR 2005 Kar 2443), wherein the Supreme Court had occasion to examine the various possibilities for the procedural to be followed in election petitions; particularly in the wake of the provisions of Sections 86 and 87 of Representation of People Act, 1951 [for short, the Act], the Supreme Court having held that the provisions of CPC cannot and need not be followed in a trial of an election petition in the strict sense, and has submitted that the present petition having a flavour of a quasi-criminal proceedings, particularly having regard to the nature of allegation made by the petitioner in the context of Section 36 of the Act, the procedure contemplated under the CPC may not be a full or proper procedure to take care of all situations and therefore while it is open to the Court to supplement the procedure by its own methods and devices, the provisions of not only Articles 225 of the Constitution of India, but also the provisions of Section 129 of the Act were examined by the Supreme Court in the cases cited and by placing reliance on the observations as contained in paragraphs 8 and 45 reading as under: "8. Sub-section (6) of Section 86 of the Act requires trial of an election petition to be continued from day to day until its conclusion, so far as is practicable consistently with the interests of justice in respect of the trial, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. Sub-section (7) requires every election petition to be tried as expeditiously as possible with an endeavour to conclude the trial within six months from the date of presentation of the election petition. Thus, the procedure provided for the trial of civil suits by the CPC is not in its entirety applicable to the trial of election petitions. The applicability of the procedure is circumscribed by two riders: firstly, the CPC procedure is applicable "as nearly as may be": and secondly, the CPC procedure would give way to any provisions of the Act and of any .rules made thereunder. 45. We sum up and briefly state our conclusion as under:- (i) The trial of an election petition commences from the date of the receipt of the elections petition by the Court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time (as far as practicable and without sacrificing the expediency and interests of justice) includes power to adjourn the hearing in an election petition affording opportunity to the defendant to file written statement. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and Rules made for purposes of that Act and a resort to the provisions of the CPC is not called for. (ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in the CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines. The rules of procedure contained in the CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines. ' (iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the Rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution o~ the one hand, and the Rules of Procedure contained in the CPC on the other hand, the former shall prevail over the latter. (iv) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the provision to Rule 1 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the noncompliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away. (v) Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the "need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case." and submits that the Court should hold even if necessary exercising the discretion to conclude that in a situation of the present nature, acceptance of evidence on behalf of the petitioner can only be through oral evidence and not by way of an affidavit. 6. It is also submitted that though the Karnataka High Court has framed Election Petitions Procedure Rules, Karnataka in terms of Notification No. ROC No. 866/67, dated 28th March 1967, these Rules are silent about the corresponding provisions corresponding to Order XVIII CPC and as it is obvious that the provisions of Order XVIII themselves should not fully adequate in the trial of election petitions, as it is only a provision in the nature of civil proceedings, but may involve examination of questions in the nature of quasi-criminal proceedings, particularly with serous penal consequences visiting a party to an election petition and annulling or setting aside of an election by Court in an election petition having a wider implications, which goes beyond the interest of the parties to the petition, the procedure as contemplated under the CPC alone cannot be and should not be accepted, as the only proper procedure to be followed in trial of an election petition. 7. An examination of the provisions of Rules 4 and 5 of Order XVIII CPC, clearly indicates that in a situation contemplated under Rule 5 of Order XVIII CPC, it is only that procedure has to be followed. I take this view for the reason that the legislature even after 2002 amendment having consciously retained this provision of law relating to procedure, it has to be necessarily given effect to and it cannot be read as either a surplusage or to be rendered otiose. I take this view for the reason that the legislature even after 2002 amendment having consciously retained this provision of law relating to procedure, it has to be necessarily given effect to and it cannot be read as either a surplusage or to be rendered otiose. Rule 4 of Order XVIII CPC will take care of the general situations, specific situations as contemplated under Rule 5 are to be necessarily regulated by procedure in terms of Rule 5 and not in terms of the procedure under Rule 4. 8. While the provisions of Order XVIII CPC seek to regulate recording of evidence in civil proceedings, it is only to give effect to Section 137 of the Indian Evidence Act, 1872, which is one governing both civil and criminal proceedings. Therefore, following the procedure contemplated only in respect of civil proceedings which are sought to be regulated under CPC may not be proper or correct courses of action while trying an election petition. 9. However, as submitted by the learned Counsel for the respondent the outcome of an election petition having a larger repercussion, while the Court is examining an election petition, quality of evidence that is placed before the Court is to be closely scrutinized or monitored by Courts, with the High Court being the election tribunal under the Act, possibilities of suspect evidence of questionable evidence coming on record should be ') voided or prevented. 10. While it is true that the statutory provisions that are examined in the context of the present order are Rules 4 and 5 of Order XVIII of the Code of Civil Procedure, as extracted above, one cannot lose sight of the fact that the provisions of Order XVIII occurring in the Code of Civil Procedure is one meant for .providing a procedure during the hearing of a suit before the Civil Court and in the context of examination of witnesses for the purpose of parties supporting their respective pleadings. 11. 11. While the Code of Civil Procedure, 1908, undoubtedly provides for procedural aspects of the manner of receiving evidence and as to how the parties can produce such evidence before the Court, the subject 'evidence' is primarily regulated by the provisions of the Indian Evidence Act, 1872, another piece of legislation of vintage value, but which has stood the tests of time for much more than a century and four decades and has almost remained intact. 12. While advances in science and technology, particularly, the invasion of the electronic technology and concomitant gadgets and devices having ability for instant reproduction having necessitated, introduction of supplementary statutory provisions such as, Sections 22-A, 47-A, 65-A, 65-B, 67-A, 73-A, 81-A, 85-A, 85-B, 85-C, 88-A and 90-A to the Indian Evidence Act, 1872, by introduction of such legislative provisions through amending Act No. 21 of 2000 with effect from 17.10.2000; insofar as recording of evidence before the Courts is concerned, it is chapter-IV relating to recording of oral evidence as provided under Sections 59 and 60 of Chapter-V, receipt of documentary evidence in terms of Sections 61 to 90-A to be found in Chapter-V, regulate the manner of receipt of evidence and the mode and manner of examination of witnesses is again regulated by Chapter-X of the Indian Evidence Act, 1872, particularly as under Section 137 providing for the method of examination of a witness, in the first instance by examination in chief, then cross examination and if need be by re-examination and the scheme of this statutory provision has a define purpose to serve. 13. In our adversary judicial/legal system, litigants approach Courts, with a definite case against their adversary impleaded as defendant/s and seek relief on the basis of their versions. The irrespective versions when are not agreeing, it becomes a dispute due to the disagreeing pleadings and gives rise to issues, on the basis of which, parties go to trial to make good their respective versions. 14. Trial is the process by which events which had occurred earlier are sought to be re-created before the Court through evidence, oral and documentary, to apprise the Court/judge as to what actually happened by re-enacting the sequence of events before the Court and as close to reality as is possible. 15. 14. Trial is the process by which events which had occurred earlier are sought to be re-created before the Court through evidence, oral and documentary, to apprise the Court/judge as to what actually happened by re-enacting the sequence of events before the Court and as close to reality as is possible. 15. Trial conducted before the Court being removed in time and space from the real, obviously can never become the real nor can it be exactly as was the real. It is precisely for this reason, it is called trial before the Court. It is in the enacting of this drama of trial, witnesses come and speak before the Court to re-enact the real and recordings of such earlier incidents in writing or in any other recognized form constitutes the documentary evidence and here again, a document may be original or a recognized copy as provided for under the Indian Evidence Act, 1872, itself. 16. The significance of a witness testifying on oath before the Court and being subjected to cross examination is to achieve the object of ensuring that the trial as far as possible is nearer the real. It is the function and purpose of the Judge and in fact the Court itself, to find out the truth, in the sense, what exactly had happened earlier based on which inferences can be drawn by the Judge. It is therefore very necessary that when a witness come before the Court and speaks about the past event, a sense of solemnity is instilled in them, so that they do not deviate from reality while recapitulating as to what exactly had happened earlier, and are now narrating the past event before the Court; to ensure that they remain faithful to the event which has already occurred. 17. It is very necessary that a witness not only speaks with a sense of solemnity, but also is cautioned that if the witness is deposing incorrectly or falsely, his bluff will be called by a piercing and searing cross-examination conducted by an efficient defence lawyer. Deposing falsehood while on oath before the Court also attracts the penal consequences in terms be provisions of Section 193 of the Indian Penal Code, with a possible maximum punishment of imprisonment of either description for seven years and also fine which is again a strong deterrent against deposing falsehood. 18. Deposing falsehood while on oath before the Court also attracts the penal consequences in terms be provisions of Section 193 of the Indian Penal Code, with a possible maximum punishment of imprisonment of either description for seven years and also fine which is again a strong deterrent against deposing falsehood. 18. Section 137 in itself incorporates the purpose and object of finding the truth by the Judge in the Court, as to what could have happened earlier in respect of subject matter on which the parties are at issue. Examination of witnesses in person, i.e., oral examination of the witness in itself sub-serves this purpose and achieves the object of ascertaining the truth as nearly as possible in respect of a past event. 19. An affidavit evidence which is a written version of the past event, as recaitulated by a witness suffers from the pitfall of the same getting doctored by the Advocate sitting in his chamber, bestowing his mind and skills on the merits and demerits of his client's case and suitably tailoring the evidence to suit the version of the client so that the pleadings are well supported by such affidavit evidence. 20. It is not that every litigant and every Counsel engaged by a litigant may try to take advantage of the facility of affidavit evidence and many may not even indulge in such a method. But, what is very essential is that when the Court is on a journey to find the truth of the matter, it is very essential to avoid such pitfalls and therefore any statutory provision should be understood and so interpreted, particularly, if it is a provision occurring in the context of receiving of evidence before the Court in terms of the procedure contemplated by the Code of Civil Procedure, 1908, and the understanding and interpretation should be to ensure such pitfalls are avoided and the possibilities of truth suffering are minimized and the statutory provision is so understood and interpreted that it really sub-serves the purpose and object of the legislative provisions. 21. 21. While on a reading of Rules 4 and 5 of Order XVIII of CPC, I have no doubt that Rule-5 of Order XVIII should prevail over Rule 4 of Order XVIII and should be given effect to, as is urged by learned Counsel for the respondent, even if there should be any scope for interpretation on' the premise that there is a conflict between the two provisions, in my view, it should be understood and interpreted only to, ensure that in a matter of the present nature, the evidence of parties should necessarily be in person before the Court and not by way of affidavit evidence. It is for this reason, the present affidavit evidence is not accepted, but the petitioner is permitted to step into the witness box and depose. 22. It is open to the petitioner to make use of the documents sought to be placed before the Court along with the affidavit as documents that the petitioner can rely upon, however, subject to the fulfillment of procedural requirement and subject to the respondent having a say in the matter. 23. Ordered accordingly. 24. List the matter for evidence of petitioner on 27-1-2011.