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2023 DIGILAW 238 (CHH)

Lekhram Sahu S/o Shri Deval Sahu v. Saroj Pandey D/o Shyamji Pandey

2023-05-01

NARENDRA KUMAR VYAS

body2023
ORDER : 1. Heard on I.A. No. 17 of 2023 which is an application for issuance of commission under Order 26 Rule 1 and 2 for recording of the statement of witness No. 1 alternatively it has also been prayed for recording of the evidence through video conferencing. 2. By this application, the election petitioner has prayed for examination of witness through commission contending that the witness has fled an affidavit under Order 18 Rule 4 of Code of Civil Procedure before this court and the witness has also appeared more than once for the cross examination, but the cross examination could not take place. Thereafter, the witness has developed some serious illness because of which acute pain is persisting in his face, as a result of which he is unable to travel and physically appear before this Court for remaining cross examination, therefore, in such a situation, he has fled an application under Rule 26 Rule 1 and 2 for commission to examine the witness. 3. Learned counsel for the election petitioner would submit that the election petition is being governed by the CPC for the procedural aspect and recording the statement through commission, in the special circumstances of illness and also considering the fact that Representation of People Act, 1951 provides for disposal of the Election Petition in six months, he would pray for allowing this application. To substantiate his submission he would refer to Section 87 of the RP Act, 1951 and the judgment passed by the Delhi Court in Election Petition No. 14/2009 [Nandram Bagri vs. Jaim Kishan and Others] would pray for examination of his witness through commission. Alternatively, he has also prayed for examination of witness through video conferencing. 4. On the other hand, learned counsel appearing for respondent No. 1 opposing the submissions would submit that procedure for trial of CPC does not applicable to the election petition in its entirety. He would further submit that applicability of the provisions of CPC is subject to the provision of this Act and any of the Rules made thereunder. He would further submit that under the Representation of People Act, 1951 there is no rule which provides that the petitioner can be examined through commission or through video conferencing. He would further submit that applicability of the provisions of CPC is subject to the provision of this Act and any of the Rules made thereunder. He would further submit that under the Representation of People Act, 1951 there is no rule which provides that the petitioner can be examined through commission or through video conferencing. He would further submit that taking evidence through video conferencing is also not technically possible because the entire petition of the petitioner is based on documentary evidence and the petitioner has fled a huge number of documents and got exhibited the same and at the time of cross examination the respondent’s Advocate is required to show the documents to confront the same to the petitioner and therefore, only because of this reason document cannot be shown through the camera proceeding because it is very difficult for the respondent’s Advocate to show huge bulk of documents in front of camera and then cross examine the witness and it would not be proper to allow the application, thus prayed for dismissal of the application. To substantiate his submission he would refer to the judgment of Hon’ble Supreme Court in the case of Kailash vs. Nanku, 2005 (4) SCC 480 . 5. I have heard learned counsel for the parties and perused the relevant provisions. 6. Before adverting to the submissions made by the learned counsel for the petitioner and the respondents, this court has to be examined what are the rules framed under the Election Petition as per the High Court of Chhattisgarh Rules 2007. 7. Rule 308 of the High Court of CG Rules 2007 specifically provides that no commission for the examination of any witness will be issued unless the Judge considers it absolutely necessary and the party at whose instance such commission is to be issued has deposited with the Cashier of the court, within such time as may be fixed, such sum as the court may consider reasonable for the purpose. 8. Section 87 of the Representation of the People Act, 1951 also deals with the applicability of the provisions of the CPC which reads as under: “87. 8. Section 87 of the Representation of the People Act, 1951 also deals with the applicability of the provisions of the CPC which reads as under: “87. Procedure before the High Court: (1) Subject to the provisions of this Act and petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits: Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. (2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.” 9. Learned counsel for the petitioner to substantiate his submissions has referred to the judgment of High Court of Delhi, in Election Petition No. 14 of 2009 (Nand Ram Bagri vs. Jaim Kishan and Others) decided on 3-3-2011 wherein the High Court of Delhi has held in Para 13 and 22 which reads as under: “13. This Court has provided for the examination and cross examination of witnesses in suits fled before this Court before the Joint Registrars who as aforesaid are Addl. District Judges well versed and experienced in the same, in an attempt to expedite the trial and disposal of the suits. The power of the Court in relation to securing the attendance of witnesses and to record evidence, under Rule 3(29) of Chapter II of the Delhi High Court (Original Side) Rules, 1967 framed in exercise of powers under Sections 122 & 129 of CPC and Section 7 of the Delhi High Court Act, 1966, is exercisable by the Registrar and which power has been delegated to the Joint Registrar. Experience showed that the Judges were not able to devote sufficient time for recording examination and cross examination of witnesses and which led to considerable delays. The said attempt of this Court has been successful with the trials being expedited. Experience showed that the Judges were not able to devote sufficient time for recording examination and cross examination of witnesses and which led to considerable delays. The said attempt of this Court has been successful with the trials being expedited. What is now being suggested by the counsel for the respondent no. 1 in relation to Election Petitions is bound to delay the disposal of the Election Petitions and trial which as per Section 86(6) of the Act is required to be continued on day to day basis until its conclusion. The argument of the counsel for the respondent no. 1 is thus found to be retrograde and not in the interest of justice. Such an interpretation is found to be pedantic and impracticable and this Court would shun any such interpretation which makes the procedure or the trial inconvenient and cumbersome or delays the same. The counsel for the respondent no. 1 has not been able to show anything as to why the procedure applicable under CPC to the trial of suits cannot be applied to the trial of Election Petition. 22. I therefore hold that in the matter of recording of evidence, in an Election Petition, the procedure as provided under the CPC for trial of suits shall apply and accordingly, the Joint Registrars who are empowered to record evidence in suits are held empowered to record evidence in an Election Petition also.” 10. Learned counsel for the respondent opposing the submission made by learned counsel for the petitioner would refer to the judgment of Hon’ble Supreme Court in the case of Kailash vs. Nanhku and Others wherein the Hon’ble Supreme Court has held that commitment of trial in the contest of election petition is different from that contest of a civil suit. The relevant Paras 7, 6, 19, 9, 10 and 46 (ii) are extracted below: “7. Two points of significance deserve to be noted and highlighted. On all the subjects, suggested by the titles given to the different Chapters, provisions are already available in the CPC which is a pre-existing law. An election petition is a civil trial and if the Parliament had so wished, all the aspects of trial included in Part VI could have been left to be taken care of by the pre-existing law, that is, the CPC. An election petition is a civil trial and if the Parliament had so wished, all the aspects of trial included in Part VI could have been left to be taken care of by the pre-existing law, that is, the CPC. However, the Parliament has chosen to enact separate and independent provisions applicable to the trial of election petitions and placed them in the body of the Act. 6. Relevant Provisions The Representation of the People Act, 1951 (43 of 1951) has been enacted, as its Preamble indicates, to provide for the conduct of elections and other proceedings relating to such elections, as also for the decision of doubts and disputes arising out of or in connection with such elections. Part VI of the Act deals with Disputes Regarding Elections. The provisions contained therein are elaborate and detailed. This Part is divided into five Chapters. Chapter I incorporates Section 79 which is an interpretation clause giving definitions of certain words and expressions which are relevant for the purpose of Parts VI and VII of the Act. Chapter II deals with presentation of election petitions to High Courts. The jurisdiction to try election petitions is conferred on the High Courts. Provisions are made as to by whom and in what manner an election petition shall be presented; who will be parties to the petition; what an election petition must contain and the reliefs which an election petitioner may claim. Chapter III makes provision for trial of election petitions; procedure before the High Court and several rules of evidence applicable to trial of an election petition. What directions “principal and incidental” can be made and issued by the High Court in its judgment disposing of an election petition and the grounds on which such directions can be founded are provided for. Chapter IV lays down the rules governing the discretion of the court in the matter of permitting withdrawal of election petitions and the procedure relating thereto. Provision is made as to when and subject to what procedure an election petition would abate or substitution would be permitted in case of death of a party to the election petition. Chapter V deals with costs and security for costs. Right of appeal and procedure relating thereto are contained in Chapter IVA. 19. Section 87 of the Act is a guarded provision as its language indicates. Chapter V deals with costs and security for costs. Right of appeal and procedure relating thereto are contained in Chapter IVA. 19. Section 87 of the Act is a guarded provision as its language indicates. A few things are noteworthy for determining the nature and character of the provision contained in Section 87. Its title reads “Procedure before the High Court.” The applicability of the provision is “subject to the provisions of this Act and of any rules made thereunder.” The procedure prescribed by the Code for the trial of suits is not just adopted and as if incorporated into the Act, so as to govern the trial of election petition. The procedure applicable under the Code to the trial of suits has been made applicable to the trial of every election petition “as nearly as may be.” 9. Sub-Section (1) of Section 87 has to be read in juxtaposition with the language of sub-section (2), whereby the provisions of the Indian Evidence Act, 1872 have been made applicable in respect to the trial of an election petition by providing that they shall “be deemed to apply in all respects to the trial of an election petition.” Subsection (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.” 10. Section 169 of the Act confers power on the Central Government to make rules for carrying out the purposes of the Act. The Central Government is empowered to make rules which may govern the procedure of trial of election petitions. Section 169 of the Act confers power on the Central Government to make rules for carrying out the purposes of the Act. The Central Government is empowered to make rules which may govern the procedure of trial of election petitions. Although, this subject is not specifically mentioned as one of the matters in sub-section (2) which specifies the topics on which the Central Government may frame rules, however, clause (i) of sub-section (2) is a residuary clause which empowers the Central Government to frame rules regarding “any other matter required to be prescribed by this Act.” Sub-Section (1) of Section 87 of the Act also gives an indication that the statute contemplates the framing of rules under the Act to govern the procedure of trials before the High Court, which, read with the Preamble to the Act, is the source of power for making the rules laying down the procedure for the trial of election petitions. There is no provision in the Act which empowers the High Court to frame the rules governing the procedure of trials before the High Court. However, the High Court is not entirely powerless in the matter of framing the rules of procedure. Article 225 of the Constitution of India confers powers on the High Court, inter-alia, to make rules of court for the purpose of hearing, trying and deciding any matter lying within the jurisdiction of the High Court. The High Court can thus frame rules of procedure regarding the trial of election petitions under Article 225 of the Constitution. This source of power emanates from the Constitution and is, therefore, very potent. Section 129 of CPC is another source of power of High Court to make rules to regulate its own procedure in the exercise of its original civil jurisdiction. This will include election petitions also as they are tried in the original civil jurisdiction of the High Court. 46(iii) We sum up and briefly state our conclusions as under: (i) The trial of an election petition commences from the date of the receipt of the election petition by the Court and continues till the date of its decision. The fling of pleadings is one stage in the trial of an election petition. 46(iii) We sum up and briefly state our conclusions as under: (i) The trial of an election petition commences from the date of the receipt of the election petition by the Court and continues till the date of its decision. The fling 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. (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 on the one hand, and the Rules of Procedure contained in the CPC on the other hand, the former shall prevail over the latter.” 11. Hon’ble Supreme Court in the case of Ram Sukh vs. Dinesh Aggarwal, has examined the provisions of the Representation of People Act, 1951 and has held in Para 18 as under: “18. Undoubtedly, by virtue of Section 87 of the Act, the provisions of the Code apply to the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act, the court trying an election petition can act in exercise of its power under the Code, including Order VI Rule 16 and Order VII Rule 11 of the Code. The object of both the provisions is to ensure that meaningless litigation, which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must apply with greater vigour in election matters where the pendency of an election petition is likely to inhibit the elected representative of the people in the discharge of his public duties for which the Electorate have reposed confidence in him. The submission, therefore, must fail.” 12. From bare perusal of Section 87 of the RP Act, 1951 as well as judgment passed by the Hon’ble Supreme Court in case of Kailash (Supra) and Ram Sukh (Supra) it is quite vivid that provisions of CPC will not be applicable in its entirety unless the rules provide, even the High Court Rules do not provide for examination of witness through commission in the election petition unless cogent reason is made out by the petitioner. The petitioner has submitted in the application that the witness is facing some problem in the face, therefore, he is unable to travel. But if the witness has difficulty in the face as submitted by the counsel for the election petitioner then also will not be able to depose his statement through video conferencing or through commission as such no absolute necessary situation is cropped up in the matter. There is one more reason to reject the application as the judgment in case of Nand Ram (Supra) the Delhi High Court has examined the Delhi High Court (Original Side) Rules, 1967 which provides that Section 122 and 129 of CPC and Section 7 of Delhi High Court Act, 1966 is exercisable by the Registrar and which power has been delegated to the Joint Registrar. This is not the situation before this Court in fact the High Court Rules, 2007 provides extreme condition where the witness can be examined through commission, but in fact, no such situation is available on record. Thus, application fled by the petitioner for examination of the witness through commission is deserves to be rejected and accordingly it is rejected. 13. This is not the situation before this Court in fact the High Court Rules, 2007 provides extreme condition where the witness can be examined through commission, but in fact, no such situation is available on record. Thus, application fled by the petitioner for examination of the witness through commission is deserves to be rejected and accordingly it is rejected. 13. From the documents annexed with the application, it is reflected that the petitioner’s witness is suffering from medical problem in his face, therefore, he would not be able to depose before the court then the same difficulty will be faced by him at the time of recording of his witness through commission also and also through video conferencing. The difficulty which has to be faced by the witness is one and same. Only ground for grant of application that it would be difficult for him to travel. 14. Now this court has to examine whether the alternate prayer of the petitioner for recording of his statement of witness through video conferencing can be considered or not? 15. So far as other alternative plea raised by the petitioner for grant of commission of petitioner’s witness through video conferencing is concerned, once the petitioner’s application for commission has been rejected, petitioner’s claim for examination of his witness through video conferencing from where he is stationed, cannot be allowed as there is no rule made with regard to evidence through video conferencing and once the High Court of Chhattisgarh Rules 2007 do not allow for examination of witness through commission unless cogent compelling situation is made out, alternative plea for examination of witness through commission also deserves to be rejected. 16. The result of the aforesaid discussion is that there is no substance in the application of the petitioner which is liable to be rejected. Accordingly, I.A. No. 17 of 2023 is rejected. The Election Petition will be listed for examination of witnesses. Later on: At the request of learned counsel for the parties, list this case on 16-6-2023.