MC 2612/2011 BEFORE HON’BLE MR JUSTICE I A ANSARI :: O R D E R :: This miscellaneous application has arisen out of an election petition, w hich has given rise to Election Petition No. 3 of 2009. The respective cases of the parties to the election petition are, in substance, thus: (i) The election petitioner, Smti Duter Padu, had contested the Assembly Ele ctions, in Arunachal Pradesh, held, on 13-10-2009, from No. 30 Along West (ST) A ssembly Constituency, as a nominee of the All India Trinamul Congress. The respo ndent, Sri Gadam Ete, was the only other candidate, who had contested the electi on as a nominee of Indian National Congress. In order to appreciate the result of the election, so held, the following particulars need to be borne in mind so that the present miscellaneous application can be effectively disposed of. These particulars are as under: a. The total number of voters, in the said constituency, is 11,785. b. Votes polled, including Postal Ballots, were 10,228. c. Total number of Postal Ballots issued were 429. d. Postal Ballots polled, in favour of respondent, i.e., the returned candi date, were 218. e. Postal Ballots polled, in favour of the election petitioner, were 174. f. Votes polled by the respondent, i.e., the winning candidate, were 5,113. g. Votes polled by the election petitioner were 5,082. h. The total number of votes rejected were 33 (All Postal Ballots) The difference in the votes, secured by the election petitioner and the responde nt, is, thus only 31 (thirty one) votes. 2. The election petitioner has challenged the election of the respondent on the grounds that (a) the election of the respondent is illegal, null and void o n the ground of improper reception of void Postal Ballots, which has materially affected the result of the election under Section 100 (1)(d)(iii) of the Represe ntation of Peoples Act, 1951 (in short, ’RP Act’) and for a declaration that the election petitioner had, in fact, received the majority of the valid votes and (b) for a declaration that the election of the respondent is illegal, null and v oid, on the ground of commission of corrupt practices under Section 123 (7) of t he RP Act. 3. Basic complaint of the election petitioner, as discernible from the elec tion petition, may, in brief, be set out as under: (i) Altogether 90 Postal Ballots of No. 30 Along West (ST) Assembly Constituency were booked, on 12-10-2009, at Along Post Office, by registered pos t by the Returning Officer (in short, ’RO’). Records, maintained by the RO, esta blishes the fact that 90 (later on, transpired to be 89) registered letters, con taining Postal Ballots of the No. 30 Along West (ST) Assembly Constituency, were , in fact, received, on 12-10-2009, by Along Post Office. However, Postal Record s, according to the election petitioner, show that after the registered letters containing the Postal Ballots were booked by registered post at the said Post Of fice, as many as 69 such Postal Ballots went missing from the custody of the pos tal employees, namely, Dipen Deka and Jatin Dihingia. The election petitioner al so claims that the postal records confirm that out of the 90 Postal Ballots, onl y 21 of the Postal Ballots had actually been delivered to the genuine addressees by the Postal Department and, on delivery thereof being made, the said 21 Posta l Ballots were also returned back to the RO by the Postal Department, but the re maining 69 Postal Ballots went missing and could not be traced out by the Postal Department at any point of time. (ii) It is the case of the election petitioner that these 69 Postal B allots had actually been taken away by the supporters of the respondent after th ose were booked by registered post, on 12-10-2009, at the Along Post Office and, therefore, fake votes were cast by means of the said stolen Postal Ballots in f avour of the respondent. (iii) According to the election petitioner, a bundle of the said 69 Po stal Ballots, all forged and spurious, were delivered, by hand, to one postal em ployee, namely, Smti Sukuni Sharma, outside the said Post Office by some unident ified person, on 20-10-2009, at about 7 am. In turn, those 65 forged Postal Ball ots were handed over to the Assistant Returning Officer (in short, ’ARO’). (iv) It is also the case of the election petitioner that records esta blish that as many as 40 Postal Ballots from the said bunch of 65 forged Postal Ballots had been counted in favour of the respondent by the RO and, in consequen ce of the reception of the said 65 Postal Ballots, respondent was declared to ha ve won the election. The entire chain of events, contends the election petitione r, took place with the knowledge, consent and under the instructions of the resp ondent. 4. Further case of the election petitioner is as under: (i) Out of the several applicants, who had not received the Postal B allots, 13 electors had filed affidavits before the RO testifying the said fact and, out of those 13 applicants, 5 persons, who had not received the Postal Ball ots, had written letters to the RO, on 20-10-2009, informing him about the fact that they had not received Postal Ballot. This apart, the election agent of the petitioner lodged a written complaint with the RO, on 21-10-2009, requesting him to cancel all those 65 Postal Ballots recovered from Smti Sukuni Sharma and the said complaint, as regards the 65 Postal Ballots, was disposed of by the RO by the order, dated 22-10-2009, in presence of both parties to the election petitio n and the records confirm that those 65 Postal Ballots recovered, on 20-10-2009, from Sukuni Sharma, were the ones stolen from the Post Office on 12-10-2009. On recovery of the 65 Postal Ballots from Sukuni Sharma, the RO had initially reje cted 48 Postal Ballots holding them to be tampered, but, later on, counted, with out any valid reason, in favour of the winning candidate, as many as 17 Postal B allots out of the said lot (65-48=17). The act of reception of the said 17 Posta l Ballots is under challenge in the present election petition. (ii) The election petitioner also contends that surprisingly enough, having rejected 48 Postal Ballots from the bundle of 65 Postal Ballots by his or der, dated 22-10-2009, the RO had, eventually, counted, in favour of the respond ent, another 23 Postal Ballots from the said lot of 48 rejected Postal Ballots. The reception of the said 23 Postal Ballots is also under challenge. Thus, altog ether 40 (17+23) forged Postal Ballots were, according to the election petitione r, counted in favour of the respondent from the bundle of 65 Postal Ballots, whi ch were, admittedly, recovered from Smt. Sukuni Sharma, the same having been han ded over to her by some unknown person outside the said Post Office. (iii) Thus, in total, as many as 40 Postal Ballots from the said bundle of 65 Postal Ballots were, ultimately, counted, submits the election petitioner, illeg ally in favour of the returned candidate. The Postal Department had not only lod ged FIRs with the police informing them about the missing Postal Ballots, but ha d also initiated departmental proceedings against Smt. Sukuni Sharma, Depen Deka and Jatin Dihingia, the three Postal Department employees, who had been identif ied to be associated with the disappearance of the Postal Ballots. As a matter o f fact, Sukuni Sharma had been arrested by police in connection with the said in cident and her statement had been recorded and the case is still pending for inv estigation. (iv) The RO’s record confirms that 90 (later on, transpired as 89) Po stal Ballots were booked, on 12.10.2009, at the Along Post Office. Postal record s confirm that out of those 90 Postal Ballots, 69 Postal Ballots went missing af ter those were booked, on 12.10.2009, by registered post. Postal Department has confirmed and reconfirmed, by issuing communications, under the Right to Informa tion Act, 2005, that 69 Postal Ballots went missing soon after those were booked , on 12.10.2009, at Along Post Office. The Postal Department has also confirmed that the Department had never delivered any of the said 69 Postal Ballots to the addressees nor had those Postal Ballots been returned by the applicants through the Postal Department. The Post Masters of all the concerned Post Offices have confirmed the fact that the said Postal Ballots had never been received by the c oncerned Post Offices. As a matter of fact, by the letter, dated 20-11-2009, the Postal Department had confirmed that those 69 Postal Ballots were traceless eve n several days after the poll results were declared. It is nobody’s case that th e said 69 Postal Ballots were received by genuine applicants or that such applic ants had, in fact, exercised their franchise through those missing Postal Ballot s or that those 65 Postal Ballots were delivered back to the RO through the Post al Department. 5. In the election petition, the petitioner has given a table, namely, Tab le AB giving therein the name, address, registered Letter Number and destinatio n of each of the said 69 Postal Ballots, which went missing, on 12-10-2009, from the Along Post Office. The election petitioner has categorically pleaded that o ut of the 65 forged Postal Ballots recovered from Smti. Sukuni Sharma, the RO ha s, in fact, counted, in favour of the returned candidate, as many as 40 forged P ostal Ballots. That apart, another 4 void Postal Ballots, not belonging to the b undle of the said 65 Postal Ballots, the details of which have been furnished at paragraph 10 (XVII) to 10 (XIX) of the election petition, were also fraudulentl y issued and, subsequently, counted by the RO in favour of the returned candidat e. Thus, according to the election petitioner, altogether 44 void Postal Ballots had been improperly received by the RO in favour of the returned candidate. The se 44 Postal Ballots can be identified with certainty on the basis of available poll records/registers. If these 44 Postal Ballots are taken out of the purview of the poll process, then, the result of the election would be materially affect ed inasmuch as the election petitioner would become the winning candidate by a m argin of 13 votes. 6. It is also the pleaded case of the election petitioner that the responde nt was all along aware of mischief played in respect of the Postal Ballots, but he or his election agent had never, at any point of time, raised any objection n or did anyone of them make any complaint before any authority or express their s urprise. Till date, the respondent has maintained complete silence on the entire episode. On the contrary, the respondent has influenced the RO on 21-10-2009 an d, at the counting hall, on 22-10-2009, pressurized the RO. As a sequel thereto, the said void Postal Ballots were counted in favour of the respondent thereby procuring the assistance of the RO for furtherance of his poll prospect. It is t hose 44 void Postal Ballots, counted in favour of the respondent, which have mat erially altered the result of the poll. 7. In the backdrop of the case, which the election petitioner has set up, l et me, now, consider the present misc. application. 8. While considering the present misc. application, it needs to be borne in mind that the case of the respondent is that of denial and that the respondent has not set up any specific case. 9. The material facts, giving rise to this order, which I propose to pass, can be well appreciated by taking note of the order, dated 03.11.2011, which was passed in this Misc. Application, made by the respondent. The order, dated 03.1 1.2011, is, therefore, reproduced below: By making this miscellaneous application, the applicant, who is respondent in t he election petition, has sought for appropriate direction of the Court for issu ance of summons to the witnesses, mentioned in the list of witnesses (Enclosure- I to the Misc. Case) for recording their evidence in the present election petiti on. Heard Mr. SS Dey, learned counsel for the applicant, and Mr. S Shyam, learned co unsel for the election petitioner-opposite party. Mr. Shyam, learned counsel for the opposite party, has raised objection to the p rayer for summoning of the witnesses by pointing out that the respondent-applica nt has the duty, under Order XVI, Rule 1(2) of the Code of Civil Procedure, to a pprise the Court the purpose for which the witnesses are being sought to be summ oned. Reacting to the submission, so made by Mr. Shyam, Mr. SS Dey, learned coun sel for the applicant, seeks some time to file additional affidavit in this misc ellaneous case. In view of the above and in the interest of justice, this miscellaneous case alo ng with the election petition and other miscellaneous cases filed in the electio n petition, are hereby directed to be listed, on 11-11-2011, for orders. In the meanwhile, the respondent-opposite party shall file additional affidavit, as has been sought for on his behalf. 10. Subsequent to the passing of the above order, dated 03.11.2011, the resp ondent has filed an additional affidavit and the election petitioner has filed h er objection thereto. 11. Considering the fact that in his additional affidavit, the respondent cl aims to have assigned reasons for the purpose of getting summons issued to the w itnesses, the relevant portion of the additional affidavit is reproduced hereinb elow: (a) In the list of witnesses submitted by the sole respondent of the election p etition, the witness No.1 is the sole respondent himself/returned candidate and the witness No.2 is his election agent whose evidences are very much relevant fo r proper adjudication of the election petition. (b) The witnesses No.3, 4, 5 and 8 were the counting agents of the responden t in the election in question. Hence, their evidences are also relevant for prop er adjudication of the election petition. (c) The witnesses No.6, 7, 9 to 36 and 40 would like to adduce their evidences r egarding postal ballots and casting votes by postal voters as well as to disprov e other incorrect allegations made by the election petitioner. (d) The witnesses No.37, 38, 39 are official agents who were deputed during coun ting process to supervise, as such, they are required to prove the authenticity of counting process and to clarify the allegations levelled by the election peti tioner. 12. While considering the respondent’s prayer for summoning the witnesses, i t needs to be noted that the respondent has not only in the application, which h as given rise to the present Misc. Case, but also in the additional affidavit h as given a list of witnesses, which list includes not only the respondent himsel f and his election agents, but as many as 39 other witnesses. It is, in the cont ext of such an application, that the objection, raised by the election petitione r, needs to be considered. 13. Resisting the prayer for summoning the witnesses, the election petitione r has filed her objection, which, in effect, runs as under: (i) The respondent’s prayer for not only summoning his election agen t, but also the respondent himself, is not only contrary to the principles of la w enshrined in Order 16 Rule 1 of the Code of Civil Procedure (in short, ’the CP C’) but the same defies all logic. Thus, the prayer for summoning even the respo ndent has been made with mischievous intention of avoiding the obligation, impo sed by law, on the respondent, to give his evidence-in-chief on affidavit and, i f the respondent’s prayer is allowed, the same would result in abuse of the proc ess of law. This apart, the respondent has not furnished any explanation whatsoe ver as to why summons need to be issued to him and why he needs summons to be is sued in order to secure presence of his election agent to give evidence. The pur pose, contends the respondent, is obvious, the purpose being to circumvent the o bligation of filing of examination-in-chief on affidavit. (ii). As far as witness Nos.3, 4 and 8 are concerned, they were counting agent s for the counting of votes from EVM and their evidence, points out the election petitioner, is not at all material for the purpose of the present case, which i nvolves anomalies in acceptance of Postal Ballots and not other votes. As far as witness No.5 is concerned, he was, submits the election petitioner, not even a counting agent and, hence, his evidence would have no relevance, more particular ly, in the absence of any pleadings in the written statement in this regard inas much as the respondent’s case, according to his written statement, is merely a c ase of denial and he has no specific case to substantiate. In fact, points out t he election petitioner, the respondent’s denial, in his written statement, is va gue and evasive inasmuch as the respondent’s pleaded stand, as against the alleg ations made in the election petition, is that he can neither affirm nor deny. (iii). The election petitioner also contends that as far as witness Nos.6, 7, 9 to 36 and 40 are concerned, they are all businessmen, farmers and villagers. Th ese persons are not Government servants and they were not, in any way, connected with Postal Ballots. There is no pleading in the written statement, which can b e proved by oral evidence through any of these witnesses and, hence, testimony o f such witnesses, according to the election petitioner, would have no relevance in the present case and if the respondent is allowed to give evidence of such wi tnesses, on the strength of summons issued to them, then, it would only cause de lay in the disposal of the election petition. The election petitioner also point s out that the respondent cannot be allowed to give evidence dehors the pleading s in the written statement. (iv). It is also agitated by the election petitioner that the respondent’s cas e is, at best, a case of evasive denial inasmuch as the pleaded stand of the res pondent is that the allegations, made in the election petition, can neither be a ffirmed nor be denied. Not to speak of the witness Nos.37 to 39, there is, submi ts the election petitioner, no foundation in the pleadings of the respondent jus tifying any evidence to be adduced by any witness, particularly, when the respon dent has not disclosed the purpose for which the witnesses are required to be su mmoned. The election petitioner contends that the purpose of summoning the witne sses is clearly an attempt to circumvent the rule of pleadings and to defeat the purpose with which Order 18 Rule 4 has introduced by the Code of Civil Procedur e (Amendment) Act, 2002, and such a prayer, if allowed, would be in conflict wit h the provisions of Order 16 Sub-Rule (2) of Rule 1 read with the proviso to Sec tion 87 of the Representation of the People Act, 1951. The election petitioner a lso contends that except witness Nos.1 and 2, respondent cannot, in the facts an d attending circumstances of the present case, be allowed to examine, as a witne ss, any of the witness named in the respondent’s list of witnesses. This apart, for examining the said witnesses, submits the election petitioner, the responden t does not need issuance of summons and, as a matter of fact, none of the witnes ses, whose names appear in Serial No.3 to 40, is needed for effective decision o f the election petition and that the respondent is trying to procure the presenc e of the witnesses on frivolous ground and with a view to delay the proceeding. This, according to the election petitioner, is evident from the fact that the r espondent has completely failed to disclose any legally tenable purpose in order to get the witnesses summoned. The prayer for summoning the witnesses, submits the election petitioner, needs to be, and may, therefore, be rejected. (v). The respondent is, thus, contends the election petitioner, clearly tryin g to attempt to examine frivolous witnesses on the strength of summons to be iss ued by the Court with the sole object of delaying the trial of the election peti tion. The whole purpose, according to the election petitioner, is, thus, to dela y the trial of the election petition on one pretext or the other. 14. Heard Mr. S.S. Dey, learned counsel, for the respondent-applicant, and M r. S. Shyam, learned counsel, for the opposite party-election petitioner. 15. What Mr. S.S. Dey, learned counsel, for the respondent-applicant, submit s, in support of the present application is, in brief, thus: The witnesses, who are sought to get summoned, are relevant witnesses for the purpose of the case o f the respondent. In respect of most of these witnesses, the respondent does not know what would be the evidence of the witnesses and, that is why, he has asked for issuance of summons to the witnesses. Mr. Dey has, however, not explained a s to why the respondent wants to issue summons to the respondent himself to give his evidence as a witness and why he is not willing to examine himself and his witnesses by furnishing their examination- in-chief by way of affidavits. 16. Responding to the submissions, made by Mr. Dey, Mr. Shyam, learned couns el for the election-petitioner, has drawn the attention of this Court to the pro visions of Order 16 Rule 1, 1A and 2 and also to the provisions of Order 18 Rule 4 coupled with the proviso to Section 87 of the Representation of the People Ac t and submitted that the scheme of the Code warrants filing of examination-in-ch ief by way of affidavit and these provisions have been made to end not only dela y, which may be caused if presence of witnesses is required to be obtained by ge tting summons issued to them, but also frivolous examination of witnesses. If a witness is summoned, his evidence, points out Mr. Shyam, need not be filed on af fidavit with the result that the salutary provisions of Rule 4 of Order 18 would stand defeated. 17. It is, therefore, according to Mr. Shyam, in exceptional cases that one can resort to summoning a witness rather than asking the party to produce the wi tness if the evidence of the witness is, otherwise, relevant. The party, who wis hes to call a witness by getting summons issued to him, has, therefore, contends Mr. Shyam, the onus to satisfy the Court not only with regard to the purpose fo r which the witness is sought to be examined, but also with regard to the purpos e for which his evidence cannot be given by way of affidavit. It would, therefor e, be, reiterates Mr. Shyam, in exceptional circumstances that a Court can allow a witness to be examined by issuing summons to him. 18. In the light of the reasons, which have been assigned by the respondent in order to get not only himself, but his other witnesses examined on being summ oned by the Court and also in the light of the grounds on which the election pet itioner has resisted the respondent’s prayer for calling of witnesses, three que stions of law of immense importance arise. These questions are : (i) What object Sub-Rule (2) of Rule 1 of Order 16 seeks to serve by imposing on a party, which seeks to call a witness on the strength of summons, and the obligation to discl ose to the Court the purpose for which witness