Kamal Narain Sharma Vs. Shri Pandit
Dwarka Prasad Mishra & Ors  INSC 157 (17 August 1965)
17/08/1965 HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1966 AIR 436 1966 SCR (1) 478
Conduct of Election Rules, 1961, Rule
94A-Affidavit required under-Affidavit sworn before clerk of Court appointed
Commissioner of Oaths under s. 139(c) of the Code of Civil Procedure-Affidavit
whether sworn before proper authority under r. 94A.
An election petition was filed by the
appellant against the first respondent challenging his election on May 4, 1963
to the Madhya Pradesh Legislative Assembly. A number of allegations including
those of corrupt practice were made against the first respondent in the
petition. The affidavit filed in support of the allegations of corrupt practice
as required by Rule 94A of the Conduct of Election Rules, 1961, was sworn by
the petitioner before the Clerk of Court in the District Court of Jabalpur. The
first respondent in his objections before the Election Tribunal raised the
question whether the affidavit under Rule 94A was sworn before a proper
authority. The Election Tribunal accepted the objection but allowed the
appellant to file a second affidavit sworn before a proper authority. The
orders of the Tribunal were challenged by the first respondent before the High
Court under Art. 226 and Art. 227 of the Constitution and the High Court,
holding that the fresh affidavit could not be called and that there was no
proper affidavit, quashed the orders of the Tribunal and directed the Tribunal
to pass an order according to law. The appellant appealed to this Court on
certificate of fitness granted by the High Court.
Although the appellant had conceded before
the High Court that his first affidavit was not proper he was allowed to
withdraw his concession in this Court. It was contended on behalf of the
appellant that the clerk of Court before whom his first affidavit bad been
sworn had been duly appointed ex-officio Commissioner of Oaths under s. 139(c)
of the Code of Civil Procedure and an affidavit sworn before him complied with
r. 94A. The respondent however contended that a Commissioner of Oaths appointed
under s. 139(c) was for the purpose of affidavits under the Civil Procedure
Code only, just as a Commissioner appointed under s. 539 of the Criminal
Procedure Code could swear affidavit under that Code only.
HELD : There is no analogy between an
affidavit sworn under s. 539 Cr. P. C. and the affidavit sworn here. An
affidavit sworn by a district Clerk of Court may not be good for the purpose of
the Code of Criminal Procedure and viceversa but that is because the
restriction is to be formed in s. 139 of the one Code and s. 539 of the other.
Rule 94A makes no such condition and makes receivable an affidavit before a
Commissioner of Oaths without specifying of what kind. In this view of the
matter the affidavit sworn before the District Clerk of Court who undoubtedly
was a Commissioner of Oath could only be excluded by taking an extreme and
technical view which was not justified. [484 BD]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 437 of 1965.
479 Appeal from the judgment and order dated
April 15, 1964 of the Madhya Pradesh High Court in Misc. Petition No. 90 of
M. S. Gupta, for the appellant.
G. S. Pathak, Y. S. Dharmadhikari and A. G.
Ratnaparkhi, for respondent No. 1.
The Judgment of the Court was delivered by
Hidayatullah, J. This appeal arises from an election petition filed after the
last General Election to the Madhya Pradesh Legislative Assembly, in respect of
the election from the Kasdol Legislative Assembly constituency held on May 4,
1963. The first respondent was declared elected and the appellant challenged
his election alleging several acts of corrupt practices, publication of false
statements, filing of false accounts etc. The election petition was supported
by an affidavit sworn before K. S. Moghe, Officer for Administering Oaths on
Affidavits, Jabalpur. Moghe was 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 it was, therefore, prayed that the election petition should be dismissed
or the allegations about corrupt practices should be struck out.
The Election Tribunal, by an order dated
October 31, 1963 accepted the objection but allowed the filing of a proper
affidavit and a fresh affidavit was taken on record. No action was taken
against that order. It appears that the Election Tribunal had framed two issues
"Issue No. 18 : Whether the affidavit
filed by the petitioner in support of his petition is bad in law, as not
properly sworn before a competent Officer duly authorised to attest and
authenticate an affidavit and does not also comply with the provisions of
Section 83 of the Representation of the People Act and the Rules made there under.
If so, whether the petition is liable to be dismissed on this ground."
"Issue No. 20 : Whether the various alleged acts of corrupt practices
mentioned in the petition are duly supported by an affidavit as required under
Section 81(3) of the Representation of People Act ? If not, what is its effect on
this petition?" 480 On February 14, 1964 the first respondent filed an
application drawing attention to the latter part of issue No. 20 and asked
inter alia for a finding whether the election petition was not liable to be
dismissed when the affidavit was not proper The Tribunal by an order passed on
February 24, 1964 rejected the -last 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
petition under Articles 226 and 227 of the Constitution in the High Court of
Madhya Pradesh challenging both the orders and asked that they be quashed. The
High Court, by its order now under appeal by certificate, quashed the two
orders and the Tribunal was directed to deal further with the petition in the
light of the order of the High Court.
The High Court in an elaborate order has
considered whether the provisions of rule 94-A were mandatory or directory but
it did not address itself to the question whether the first affidavit was
proper or not. This was, perhaps, due to the fact that the appellant seems to
have conceded before the Tribunal that the first affidavit was not proper. This
concession was sought to be withdrawn in this appeal by the appellant and on
looking into the record we were satisfied that the concession was wrongly made
and should be allowed to be withdrawn. We accordingly heard arguments on -the
question whether the original affidavit did not satisfy the Conduct of Election
Rules and the Representation of the People Act. We are satisfied that the first
affidavit was proper and the second affidavit was not necessary.
Before we give our decision on this point we
shall first set down the relevant provisions. Section 83 of the Representation
of People Act provided that"83 (1) an election petition(a) Shall contain a
concise statement of the material facts on which the petitioner relies;
(b) Shall set forth full particulars of any
corrupt practice that the petitioner alleges, including as full a statement as
possible of the names of the parties alleged to have committed such corrupt
practice and the date and place of the commission of such practice;
and 481 (c) Shall be signed by the petitioner
and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of
1908) for the verification of pleadings.
"Provided that where the petitioner
alleges any corrupt practice, the petition shall also be accompanied by an
affidavit in the prescribed form in support of the allegation of such corrupt
practice and the particulars thereof.
(2) Any schedule or annexure to the petition
shall also be signed by the petitioner and verified in the same manner as the
petition." Rule 94-A of the Conduct of Election Rules, 1961 next provides:
"94-A. The affidavit referred to in the,
proviso to Sub-section (1) of Section 83 shall be sworn before a Magistrate of
the First Class or a Notary or a Commissioner of Oaths and shall be in Form
25." Form 25 need not be reproduced but the endorsement of the officer
before whom the affidavit is sworn may be reproduced "Form 25.
Solemnly affirmed/sworn by Shri/Shrimati
............at...this day...of 196 Before me. .Magistrate.....of...First Class
Notary/Commissioner of Oaths".
The relevant rules of the High Court and the
notifications issued by the Government have been placed in our hands. 'Me High
Court has framed Rules relating to the Civil Procedure Code and rule 20 dealing
with affidavits reads :
"20. All Courts dealing with affidavits
should make calls for affidavits at I I a.m.
and 2 p.m. every day. If ,the Clerk of Court
or other ministerial officer is appointed a Commissioner for administering oath
of affidavits, he will discharge that function at such time as may be fixed by
the District Judge in this behalf." 482 Rule 34 says :
"34. The Officer administering the oath
shall make the following endorsement on every affidavit sworn before him and
shall date, sign and seal the same.
"Sworn before me on the day of
19 by son of ............ who is personally
known to me (or) who has been identified by whose signature is/signatures are
SEAL Signature Designation".
The affidavit which was sworn before Moghe
bore the above endorsement and Moghe described himself as "Officer for
Administering Oaths on Affidavits, Jabalpur, Madhya Pradesh".
On February 16, 1959 the Government of Madhya
Pradesh had issued a notification under District Judges were empowered under s.
139(c) of the Code of Civil Procedure to appoint Commissioners to administer
oaths on affidavits made under the said Code and the District Judge, Jabalpur
in exercise of the powers so conferred appointed, among others, the Clerk of
Court attached to his office to be ex-Officio Commissioner for the purpose of
administration of oaths on affidavits made under the Code of Civil Procedure.
It may be pointed out that subsequently in May 1960 the first notification was
amended and in place of the words in the first notification "empowers all
the District Judges to appoint Commissioners to administer oaths on affidavit
made the words "generally empowers the Court of District Judges to appoint
officers to administer oaths to deponents in cases of affidavits" where
substituted. This change does not affect the present matter because the
appointment of Moghe was tinder the first notification and not under the
second. The contention of the first respondent is that the affidavit did not
comply with the requirements of rule 94-A because Moghe was not a Commissioner
of Oaths but was an officer for Administration of Oaths for the purpose of s. 139(c)
of the Code. We shall refer to that provision presently.
The rule does not state before which
Commissioner the affidavit must be sworn. It must, therefore, be read as
including all Commissioners of Oaths duly appointed. The election petition is
verified as a plaint but the affidavit is needed additionally 483 when
allegations of a particular type are made. The rule really requires an
affidavit so that action for perjury may be based on it if the allegation is
found to be false. We enquired whether, in the State of Madhya Pradesh, there
was any other provision under which Commissioners of Oaths could be appointed
but none was shown. The Indian Oaths Act, no doubt, consolidates the law
relating to judicial oaths and for other purposes. Section 4 of that Act gives
authority to "all courts and persons having by law or consent of parties
authority to receive evidence", "to administer, by themselves or by
an officer empowered by them in this behalf, oaths and affirmations in discharge
of the duties or in exercise of the powers imposed or conferred upon them
respectively by law." This is a general provision and it mentions
generally persons having by law authority to receive evidence. It is difficult
to say that the Clerk of Court answers this description. But there are other
provisions of law under which oaths may be administered for purposes of
affidavits. Section 139 of the Code of Civil Procedure, under which the Clerk
of Court was given this jurisdiction, provides :
"139. Oath on affidavit by whom to be
In the case of any affidavit under this Code(a)
any Court or Magistrate, or (b) any officer or other person whom a High Court
may appoint in this behalf, or (c) any officer appointed by any other Court
which the Provincial Government has generally or specially empowered in this
behalf, may administer the oath to the deponent".
Similarly, section 539 of the Code of
Criminal Procedure provides.
"539. Courts and persons before whom
affidavits may be sworn Affidavits and affirmations to be used before any High
Court or any officer of such Court may be sworn and affirmed before such Court
or the Clerk of the State, or any Commissioner or other person appointed by
such Court for that purpose, or any Judge, or any Commissioner for taking
affidavits in any Court of Record in India, or any Commissioner to administer
oaths in England or Ireland, or any Magistrate authorized to take affidavits or
affirmations in Scotland." 484 It is therefore not necessary that an
appointment with reference to the Oaths Act had to be made.
The Clerk of Court was appointed a
Commissioner of Oaths under s. 139(c) quoted above. It is contended that the
powers of such a Commissioner were to administer oaths for purposes of
affidavits under the Code of Civil Procedure and this meant Or. XIX of the
Code. It is pointed out that none of the conditions under which the affidavit
is required under that Order applies here. It is argued that Commissioners
appointed under one statute cannot swear affidavits prescribed under another
statute, and s. 539 of the Code of Criminal Procedure is also cited as an
This may be so. It may be that an affidavit
sworn by a District Clerk of Court may not be good for the purposes of the Code
of Criminal Procedure and vice-versa but that is because the restriction is to
be found in S. 139 of the one ,Code and s. 539 of the other. Rule 94-A makes no
such condition and makes receivable an affidavit sworn before a Commissioner of
Oaths without specifying of what kind. In this view of the matter the affidavit
sworn before the District Clerk of Court, -who undoubtedly is a Commissioner of
Oaths can only be excluded by taking an extreme and technical view which, in
our ,opinion, is not justified.
The appeal must therefore succeed on this
short ground and it is not necessary to discuss whether the rule is mandatory
or directory for, in any event, its requirements have been met. The appeal is
allowed but as the appellant had earlier conceded the point on which the appeal
succeeds, there shall be no order about costs. The case will now go back to
Tribunal for decision on merits.