Case Note & Summary
The appeal arose from an election petition filed after the election held on May 4, 1963, to the Madhya Pradesh Legislative Assembly from the Kasdol Legislative Assembly constituency. The first respondent was declared elected, and the appellant challenged his election alleging several acts of corrupt practices, publication of false statements, and filing of false accounts. The election petition was supported by an affidavit sworn before K. S. Moghe, Officer for Administering Oaths on Affidavits, Jabalpur, who was also the Clerk of Court in the District Court, Jabalpur. The first respondent objected that the affidavit was not sworn before the proper authority as required by Rule 94-A of the Conduct of Election Rules, 1961, and prayed that the election petition be dismissed or the allegations of corrupt practice be struck out. The Election Tribunal, by order dated October 31, 1963, accepted the objection but allowed the filing of a proper affidavit, and a fresh affidavit was taken on record. The Tribunal framed issues, including whether the affidavit was bad in law and whether the corrupt practice allegations were duly supported. On February 14, 1964, the first respondent filed an application seeking a finding that the election petition was liable to be dismissed when the affidavit was not proper. The Tribunal, by order dated February 24, 1964, rejected that contention and held that as a fresh affidavit was filed, the petition could proceed to trial. On March 2, 1964, the first respondent filed a writ petition under Articles 226 and 227 of the Constitution in the High Court of Madhya Pradesh challenging both orders. The High Court, by order dated April 15, 1964, quashed the two orders and directed the Tribunal to deal further with the petition in light of the High Court's order, holding that a fresh affidavit could not be called and there was no proper affidavit. The appellant appealed to the Supreme Court on a certificate of fitness granted by the High Court. The appellant had conceded before the High Court that the first affidavit was not proper, but was allowed to withdraw that concession on appeal. The Supreme Court examined Section 83 of the Representation of the People Act, Rule 94-A, Form 25, and the relevant High Court rules regarding affidavits. The Court held that Rule 94-A makes receivable an affidavit before a Commissioner of Oaths without specifying of what kind, and there is no analogy between an affidavit sworn under Section 539 CrPC and the affidavit in question. The affidavit sworn before the District Clerk of Court, who undoubtedly was a Commissioner of Oaths, could only be excluded by taking an extreme and technical view, which was not justified. The Court was satisfied that the first affidavit was proper and the second affidavit was not necessary. Consequently, the Supreme Court ruled in favor of the election petitioner on the primary issue, overturning the High Court's view that the first affidavit was improper.
Headnote
A) Election Law - Corrupt Practice Affidavit - Proper Authority - Conduct of Election Rules, 1961, Rule 94-A; Representation of the People Act, 1951, Section 83(1) proviso - The Supreme Court considered whether an affidavit in support of corrupt practice allegations was valid when sworn before a Clerk of Court appointed as ex-officio Commissioner of Oaths under Section 139(c) of the Code of Civil Procedure, 1908. The Court held that Rule 94-A permits an affidavit to be sworn before any Commissioner of Oaths without specifying a particular kind, and the appointment under the Code did not confine the officer to Civil Procedure Code affidavits. Held that the first affidavit was proper and the second affidavit was unnecessary (Paras Not mentioned). B) Interpretation of Statutes - Scope of Commissioner of Oaths - Code of Civil Procedure, 1908, Section 139(c); Code of Criminal Procedure, 1898, Section 539 - The respondent contended that a Commissioner of Oaths appointed under Section 139(c) of the CPC could administer oaths only for affidavits under the CPC, analogous to a Commissioner under Section 539 of the CrPC. The Court rejected the analogy, holding that the restrictions are found in Section 139 and Section 539 respectively, and Rule 94-A does not impose such a condition. Held that the affidavit sworn before the District Clerk of Court, who was a Commissioner of Oaths, was receivable (Paras Not mentioned). C) Election Law - Tribunal's Power to Cure Defect - Conduct of Election Rules, 1961, Rule 94-A - The Election Tribunal had accepted the objection and allowed a fresh affidavit, and the High Court had quashed that order holding no proper affidavit existed. The Supreme Court held that since the first affidavit was proper, the second affidavit was not necessary, and thus the High Court's direction to the Tribunal was erroneous. Held that the original affidavit satisfied the Conduct of Election Rules and the Representation of the People Act (Paras Not mentioned).
Issue of Consideration
Whether an affidavit required under Rule 94-A of the Conduct of Election Rules, 1961, sworn before a Clerk of Court who was appointed as an ex-officio Commissioner of Oaths under Section 139(c) of the Code of Civil Procedure, was sworn before a proper authority; and whether the Election Tribunal could call for a fresh affidavit.
Final Decision
The Supreme Court held that the first affidavit sworn before K. S. Moghe, the Clerk of Court, District Court Jabalpur, who was a Commissioner of Oaths, was proper and complied with Rule 94-A of the Conduct of Election Rules, 1961. Consequently, the second affidavit filed before the Tribunal was not necessary. The Court ruled in favor of the appellant on the primary issue, overturning the High Court's view that the first affidavit was improper.
Law Points
- Rule 94-A of Conduct of Election Rules
- 1961 permits affidavit before any Commissioner of Oaths without specifying kind
- affidavit before Clerk of Court appointed ex-officio Commissioner of Oaths under Section 139(c) CPC is proper
- no analogy between Section 139 CPC and Section 539 CrPC
- restriction under Section 139 CPC does not extend to Rule 94-A
- technical view should not be adopted
