ash 1 appln-25.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPLICATION NO. 25 OF 2010 IN ELECTION PETITION NO. EP/1 OF 2009 Indur Kartar Chhugani. .. Petitioner Vs Ms Priya Sunil Dutt .. Respondent -- shri Indur K. Chhugani, the Petitioner in person. Shri Swananda Ganoo i/byKanga & Co. For the Respondent. -- CORAM : A.S. OKA, J DATED : 4th FEBRUARY, 2011 P.C. . This is an application made by the Petitioner appearing in person containing the following prayer:- “That this Hon’ble Court calls for the Video Recordings and Receipts and documents connected with filing Nomination form and subsequent Scrutiny from Respondent No.1 or Respondent No.2 to expedite the trial.” 2. Before dealing with the submissions made, it must be pointed out that in terms of earlier order passed by this Court, a witness summons was ordered to be served to a witness Mr. Mahendra ash 2 appln-25.10 Warbhuvan. When oath was sought to be administered to the witness, it was pointed out by the learned counsel for the Respondent that though the order under which the witness summons was ordered to be issued to Mr. Mahendra Warbhuvan does not contain a direction that the witness should be directed to produce certain documents and video recordings, the witness summons incorporates the said direction. 3. It is revealed that the Registry had called upon the Petitioner appearing person to submit a draft of the witness summons and as per the said draft, the witness summons was issued. Obviously, there appears to be an error in the draft prepared. It will be ideal if the Registry itself prepares a draft summons instead of getting the same prepared from the parties to avoid such kind of a situation. 4. The Petitioner appearing in person has confined to the prayer in this application for production of the original documents at Sr. Nos.5, 6, 7, 8 and 9 as well as Sr. Nos.18 and 19 in the list of documents annexed at pages 16 to 18 of the election petition. He pointed out that true copies of the said documents have been already placed on record. He is also praying for production of video recordings of the nomination process and scrutiny process. He submitted that he has specifically relied ash 3 appln-25.10 upon the video recordings in the Petition as well as affidavit in lieu of the examination-in-chief. 5. Learned counsel appearing for the Respondent No.3 submitted that the present application has been belatedly filed on 13th September, 2010. He pointed out that the issues were settled on 11th February, 2010 and on 12th April, 2010, recording of evidence of the Petitioner was commenced. He pointed out that in the list of witnesses, the Petitioner has not incorporated any prayer for a direction to the witnesses to produce the said documents. He submitted that in the list of documents annexed to the Plaint, no reliance has been placed on the video recordings. He submitted that even in the affidavit of documents, no reliance has been placed on the video recordings and, therefore, at this belated stage, at the instance of the Petitioner, the same cannot be allowed to be produced. He placed reliance on various decisions of the Apex Court. He relied upon the recent judgment and order dated 24th January, 2011 passed by the Apex Court in Civil Appeal No.870 of 2011. He submitted that in view of the law laid down by the Apex Court, at this stage, order of production of such documents cannot be issued. He placed reliance on another decision of the Apex Court in the case of Khaje Khanavar Khadarkhan Hussain Khan and another v. Siddavanahalli Nijalingappa and another, ( AIR 1969 SC 1034 ). He ash 4 appln-25.10 pointed out that in the list of witnesses, the Petitioner has not applied for witness summons for production of the said documents. He submitted that even before recording of his evidence, he could have summoned a particular witness to produce these documents and, therefore, what was not done at that stage cannot be permitted to be done today. He placed reliance on another decision of the Apex Court in the case of Tukaram S. Dighole v. Manikrao Shivaji Kkate, [(2010)4 SCC 329]. The learned counsel, therefore, submitted that at this stage of the proceedings when the evidence of the Petitioner is already recorded, production of these documents cannot be allowed. He pointed out that a specific objection was raised to the admissibility and proof of most of the documents which are sought to be produced. He submitted that the said objection was raised in April, 2010 and five months thereafter the present application was moved. 6. The Petitioner appearing in person relied upon a decision of the Apex Court in the case of Shivajirao B. Patil Kawekar v. Vilasrao D. Deshmukh, (AIR 2000 SC 341). He urged that the production of documents be ordered. 7. I have given careful consideration to the submissions. As stated earlier, the Petitioner appearing in person has confined his prayer ash 5 appln-25.10 for production of documents at Item Nos.5 to 9 and 18 and 19 of the list annexed to the Petition. After recording the objection regarding proof of execution and contents of the said documents, the documents at Item Nos. 5, 6, 7, 8 and 9 as well as 18 have been marked as the exhibits. The Petitioner has specifically relied upon the aforesaid 7 documents. During the evidence, he has produced true copies of the documents at Item Nos.5 to 9 which, according to him, have been obtained under the Right to Information Act, 2005. As far as document at Sr. No.19 is concerned, he has produced an office copy and as far as document at Sr. No.19 is concerned, he has produced a Xerox copy of the office copy thereof. Hence copies of all the documents are on record and the documents have been relied upon in the Plaint. In the circumstances, the originals of which are in the custody of the Returning Officer will have to be ordered to be produced. The decision of the Apex Court in the case of Khaje Khanavar Khadarkhan Hussain Khan (supra) will have no application inasmuch as the name of Mr. Warbhuvan is very much present in the list of witnesses for deposing before the Court. Mr. Warbhuvan personally stated that he was having custody of the aforesaid documents and he had brought the same to the Court. This Application is pressed into service at a stage when the evidence of Mr. Warbhuvan is about to be recorded who is the Returning Officer in whose custody the documents are. As far as the other decision of the Apex Court in the case of Kalyan Singh ash 6 appln-25.10 Chouhan (supra) is concerned, it must be noted here that the application was made before the High Court for summoning the tendered votes in respect of which there were no pleadings and in respect of which there was no issue framed in the election petition. The High Court rejected the application for production of the said documents which has been confirmed by the Apex Court. The documents of which production is sought are the documents which are referred to and relied upon in the election petition and as stated earlier, the true copies thereof have been already produced by the Petitioner. The documents are in the nature of original nomination form, annexures, request form filled in by the Petitioner, receipt of nomination paper issued by the Returning Officer, etc. The documents include letters submitted by the Petitioner to the Returning Officer Mr. Warbhuvan, the originals of which are in the custody of the Returning Officer. 8. Now turning to the video recordings, in paragraph 16 of the Petition, there is a reference to the video recordings of the nomination process, as well as the process of scrutiny. Even in the affidavit in lieu of examination in chief, the Petitioner has referred to the video recording of the proceedings of filing of nomination form and scrutiny thereof. Though the specific words that “the Petitioner was relying upon the video recordings” may be absent, the fact remains that the Petitioner referred ash 7 appln-25.10 and relied upon the video recordings in the Petition and in evidence and, therefore, the omission to make a reference to video recordings in the list of documents annexed to the Petition cannot be fatal. The learned counsel appearing for the Respondents relied upon another decision in the case of Tukaram Dighole (supra) which deals with the effect of mere production of audio cassette without adducing evidence of authenticity. Apart from the fact that the said decision does not deal with the issue of grant of permission for production of documents, the same deals with the proof of audio and video cassettes with which today we are not concerned. Moreover, since the video cassettes are sought to be produced from the custody of the Returning Officer himself, the authenticity thereof cannot be normally doubted. 9. In view of the aforesaid discussion, the Application No.25 of 2010 will have to be partly allowed by issuing following directions. (i) Mr. Mahendra Warbhuvan, Former Returning Officer of 29 Mumbai North Central Loksabha Constituency, is directed to produce on record the original documents more particularly described in Item Nos. 5, 6, 7, 8, 9, 18 and 19 of the list of documents annexed to the election petition. Mr. ash 8 appln-25.10 Warbhuvan is also directed to produce video recording of nomination process and scrutiny procedure. (ii) It is made clear that the issue regarding proof of documents and the proof of video recordings is kept open. (ii) The Application No.25 of 2010 is partly allowed in above terms. 10. The learned counsel appearing for the Respondents seeks time to challenge the order of this Court. The Petitioner appearing in person opposes the said prayer. Reasonable time will have to be granted. Accordingly, time of three weeks is granted to the Respondent to take appropriate steps. 11. The Election Petition is adjourned to 1st March, 2011 at 3.00 p.m. for recording of evidence of Mr. Mahendra Warbhuvan. ash 9 appln-25.10 12. As regards the other witness who has filed an affidavit in lieu of examination in chief, the case stands adjourned to 22nd February, 2011 at 4.30 p.m. for recording of evidence. ( A. S. OKA, J )