KAMAL NARAIN SHARMA versus SHRI PANDIT DWARKA PRASAD MISHRA AND OTHERS

Citation: [1966] 1 S.C.R. 478 · Decided: 17-08-1965 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

gAMALNARAINSUARMA 
v. 
SHIU PANDIT DWARKA PRASAD MISHRA AND OTIIERS 
August 17, 196§ 
[P. B. 
GAJENDRAGADKAR, 
C.J., 
K. N. 
WANCHOO, 
M. HIDAYATULLAH, J. c. SHAH AND s. M. Snau, JJ.] 
Conduct of Election Rules, 
1961, 
Rule 94A-Affidavit 
required 
under-A/fuiavit sworn before clerk of Co1m appointed Commisrioner of 
Otlth.r under s. 139(c) of rhe Code of Civil Procedure-A/fulavit whether 
AJorn before proper authority under r. 94A. 
An election petition was filed by the appellant against the finn ,.,._ 
pondent challengmg his election on May 4, 1 %3 to the Madhya Prad .. h 
Legislative Assembly. 
A number of allegations including those of cor-
rupt practice were made against the first respondent in the petition. The 
allidavit tiled in support of the allegations of corrupt practice as required 
by Rule 94A of the Conduct of Election Rules, 1961, was sworn by tbe 
petitioner before the Clerk of Court in the District Court of JabaJeur. 
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 tile a second affidavit sworn before a proper 
authority. 
The orders of the Tribunal were challenged by !he lint res-
pondent before the High Court under Art. 226 and An. 227 of 
the 
Consti'ution ::nd the High Courl. holding that the fresh affidavit could 
not be called and that there was no proper affidavit, qua'ihcd the orders 
of the Tribunal and directed the Tribunal lo pass an order according to 
law. 
The appellant appealed to thL< 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 hi! conccosion 
in this Court. It .,. .. contended on behalf of !he appellant that the clerk 
of Court before whom hi! first affidavit had been sworn had been duly 
appointed ex-Officio Commis.<ioner of Oaths under s. !39(c) or 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 purpoec of af!ldavils under the 
Ovil Procedure Code only, just as a Commissroner 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 
a. 539 Cr. P _ C. and the affidavit sworn here. 
An affidavit sworn by a 
district Clerk of Court may not be good for the purpoge of the Code 
of Criminal Procedure and vic~v~rsa but that is because the restriction 
ia to be formed in s. 139 of tho one Code and s. 539 of the other. Rule 
94A makes no such condition and makeo; receivable an affidavit before 
a Commi5sioncr of Oath5 without specifying of what kind. 
In this view 
or the matter the affidavit sworn before the District Clerk of Court who 
undoubtedly \Vas a Commis5ioner of Oa'hs could only be excluded hy 
taking an extreme and technical view which 9las not justified. 
[484 
R-D] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. '437 of 
1965. 
A 
B 
c 
D 
E 
F 
G 
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i:. N. SHAii.MA v. D. P. MISHRA (Hidayatullah, /.) 
479 
.A 
Appeal from the judgment and order dated April_ 15, 1964 
of the Madhya Pradesh High Coun in Misc. Petition No. 90 of 
1964. 
M. S. Gupta, for the appellant. 
G. S. Pothak, Y. S. Dharmadhikari and A. G. Ratnaparkhi, 
.B 
for respondent No. l. 
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 Legis-
C lative Assembly, in respect of the election from the Kasdol Legis-
lative Assembly constituency held on May 4, 1963. The first 
respondent was declared elected anc\ the_ appellant challenged his 
election alleging several acts of corrupt practices, publication of 
false statements, filing of false accounts etc. 
The election peti-
tion was supported by an affidavit sworn before K. S. Moghe, 
D 
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 elec-
E tion petition should be dismissed or the allegations a

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