9911796707
TMI Blog1972 (8) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... to as the Act). This election petition is filed under Section 80 of the Act . Section 83 of the Act deals with the contents of an election petition, and under the proviso to sub-section (1) of Section 83, where the petitioner alleges any corrupt practice, the petition is also required to be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. The form of the affidavit is prescribed under Rule 94-A of the Conduct of Election Rules, 1961 (hereinafter referred to as the Rules). This rule provides that 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 requires statements to be made by the deponent showing which parts of the statements in the petition are true to the personal knowledge of the deponent and which parts of the statements regarding the particulars of corrupt practices are true to his information. The petitioner in this petition has filed an affidavit along with the petition in which he has stated that the statements made in paragraphs 4, 6 and 7 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such information, and where such information is not disclosed there cannot be said to have been any compliance with the provisions of Section 83 of the Act. Since the contention is founded on the decision in Saklecha's case, [1972]3SCR955 , it is necessary to refer to the facts of that case. 4. In an election petition the High Court of Madhya Pradesh had held Saklecha guilty of corrupt practice under Section 123(4) of the Act with reference to certain speeches made by him. He was also held guilty of corrupt practice under Section 123(3) and Section 123(2) of the Act. In appeal before the Supreme Court it appeals that one of the contentions raised was that the affidavit filed by the election petitioner before the High Court did not disclose the source of information in respect of the speeches alleged to have been made by the successful candidate. While noticing this contention the Supreme Court referred to Rules 7 and 9 framed by the Madhya Pradesh High Court in respect of election petitioners. Rule 9 of the Madhya Pradesh High Court Rules stated that the Rules of the High Court shall apply in so far as they are not inconsistent with the Representation of the People Act, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to express any opinion on that contention in view of the fact that the matter was heard for several months in the High Court, and thereafter the appeal was heard by this Court. The grounds or sources of information are to be set out in an affidavit in an election petition. Counsel on behalf of the respondent submitted that the decisions of this Court were not an election petitions. The rulings of his Court are consistent. The grounds or sources of information are to be set out in the affidavit whether Code applies or not. Section 83 of the Act states that an election petition shall be verified in the manner laid down in the Code. The verification is as to information received. The affidavit is to be modeled on the provisions contained in Order 19 of the Code. Therefore, the grounds or sources of information are required to be stated. Now, it is no doubt true that in the concluding part of this paragraph the Supreme Court has observed that the affidavit is to be modeled on the provisions contained in Order 19 of the Code and, therefore, the grounds or sources of information are required to be stated. But on a careful reading of this judgment it appears to me that these observati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the affidavit which is required to be filed along with the election petition is not intended to be used as evidence as is contemplated by Order `9, Rule 3 of the Code of Civil Procedure. It provides that where an affidavit is made in support of an interlocutory application, the affidavit containing a statement of his belief may be admitted provided the grounds for that belief are stated. The purpose appears to me to be obvious that on interlocutory applications certain matters are required to be decided on the basis of statements which are made in the affidavits because evidence is not recorded for deciding interlocutory matters normally. The purpose of being required to file an affidavit in support of an election petition is however, entirely different. The main purpose for requiring an affidavit to be filed in the case of an allegation of a corrupt practice being made is to prevent wild allegations of corrupt practices being made against the successful candidate, so that some restraint is exercised on the person making those allegations because the deponent is liable to be prosecuted in case those allegations are found to be false. Thus, the affidavit filed in support of an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be decided with reference to Section 81 at all. Thus, the Legislature clearly intended that even if there is a defect in complying with any of the provisions of Section 83, the petition was not liable to be rejected. Thus, apart from the fact, that there is no defect in the affidavit since it complies with Form 25, though it is not necessary to decide the second contention raised by Mr. Deshpande, namely, that the petition is liable to be rejected, if necessary, the finding is that the petition is not liable to be rejected. 8. The view which I am taking in supported by certain observations in the very case on which Mr. Deshpande relied namely, Saklecha's case, [1972]3SCR955 . In that case, the Supreme Court observed in paragraph 15 : The non-disclosure of grounds or sources of information in an election petition which is to be filed within forty-five days from the date of election of the returned candidate, will have to be scrutinised from two points of view. The non-disclosure of the grounds will indicate that the election petitioner did not come forward with the sources of information at the first opportunity. The real importance of setting out the sources of informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit of security. The contents of the petition were dealt with in Section 83. Clause (c) of sub-section (1) of S. 83 provided that an election petition shall be signed by the petitioner and verified in the manner land down in the Code of Civil Procedure, 1908, for the verification of pleadings. The Election Tribunal in that case had held that the defect did not attract sub-section (3) of S. 90 inasmuch as that sub-section does not refer to non-compliance with the provisions of Section Section 90 (3) as a ground for dismissing an election petition. The Supreme Court referring to this view of the Tribunal, observed in paragraph 8 : We agree with the view expressed by the Election Tribunal. The Supreme Court then pointed out that originally sub-section (4) of S. 90 referred to three sections, namely, Sections 81, 83 and 117, and it provided that notwithstanding anything contained in Section 85 the Tribunal might dismiss an election petition which did not comply with the provisions of Section 81, Section 83 or Section 117. Section 90 was then amended by Act 27 of 1956. As amended sub-section (3) provided that the Tribunal shall dismiss an election petition which does not comply with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt declined to interfere with the discretion exercised by the Election Tribunal in permitting the filing of another affidavit in the prescribed form according to law. 11. The Allahabad High Court has gone a little further and has held that even though an affidavit does not accompany the election petition, the affidavit could be allowed to be filed later on by the Election Tribunal to whom the election petition was sent for trial. In Brij Mohan v. Z. A. Ahmad, AIR1964All523 the Division Bench held that it was not mandatory that the affidavit required by the proviso to Section 83(1) should accompany the election petition when the petition was presented before the Election Tribunal to receive the affidavit when the petition had been transferred to it for trial, and hence the election petition could not be dismissed on the ground that the affidavit as required by Section 83(1) proviso did not accompany the petition but was filed later before the petition came on for trial. The Allahabad High Court also considered the absence of mention of Section 83 in Section 90 which was the section parallel to section 86. 12. In the view which I have taken issue No.1 (a) is answered in the ne ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
