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 1964
M section Gupta for the appellant
G section Pathak Y section 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 section 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 for determination
They were 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 thereunder
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 813 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 affirmedsworn by ShriShrimati   at thisday of 196 Before me
Magistrate of
First Class NotaryCommissioner 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 am and 2 pm 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 issignatures are hereto appended
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 section 139c 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 section 139c of the Code
We shall refer to that provision presently
The rule does not state before which Commissioner the affi davit 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 administered
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
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 section 139c 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 section 539 of the Code of Criminal Procedure is also cited as an instance
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 section 139 of the one Code and section 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
Appeal allowed


Summary:
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 article 226 and article 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 section 139c 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 section 139c was for the purpose of affidavits under the Civil Procedure Code only just as a Commissioner appointed under section 539 of the Criminal Procedure Code could swear affidavit under that Code only
HELD  There is no analogy between an affidavit sworn under section 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 vice versa but that is because the restriction is to be formed in section 139 of the one Code and section 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 B D