30. In view of the discussion here-in-above the appeal is allowed in part. The conviction and sentence of life imprisonment recorded against accused/appellant Ramesh for offence of murder under section 302, Indian Penal Code is set aside. Instead he is held guilty for offence of culpable homicide not amounting to murder under section 304, Part II, Indian Penal Code and he is awarded with a sentence of rigorous imprisonment of ten years. As the accused/appellant has remained in jail for more than 10 years, he is directed to be released forthwith, if not wanted in any other criminal case.
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Imp point to note:- Verification at the end of the Plaint and Affidavit, should be prepared with the principle in mind that, no hear-say evidence is permissible, and the opposite party should not be taken by surprise. It means, each allegation which should be proved, should be written in the Pleading as to which individual will testify about it. In the Code of Civil Procedure, 1908; only point written is: “known and believed by the testator and information received”, which is simply complied by saying “paras 1 to 10 is within my personal knowledge and paras 11 to xx is correct as per information received”, which is not sufficient. About each allegations, it should be clearly written, from whom the information was received. Thus the Verification should be written: para 1. correct within personal knowledge of the party. Para 2. As per the information received from the father of the party. Para 3. As per the information received from Mr.xxx who is friend/ servant/ other relation of the party etc etc. This rule is relying upon the Indian Evidence Act, 1872, Section 60, which is quoted completely:
60. Oral evidence must be direct.—Oral evidence must, in all cases whatever, be direct; that is to say—
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.
In the Police Investigation Criminal Procedure Code, 1973, Section 161, the law says that, each person’s statement given to the Investigating Officer should be reduced into writing and filed in the Court. The same principle can be found in the election Petition rules, two cases from this point is quoted, to convince this point:
AIR 1998 MADHYA PRADESH 31 Shashi Bhushan Bajpai, Petitioner v. Madhavrao Scindia, Respondent. Code of Civil Procedure, 1908, Order 6 Rule 15(2) – Verification of pleadings – Clearly to state which para is own knowledge and which para is on information and belief – Not stating that clearly – Plaint is eligible to be dismissed – (Note: for the paras of own knowledge, the plaintiff can depose/ testify evidence himself – For the informations received, hear say is not an evidence, thus the correct persons/ best evidence to be produced, to depose/ testify evidence – Unless these things are declared at the first opportunity, in the end there will be difficulty to lead evidence, thus plaint is not maintainable- Editor) – Section 60 Indian Evidence Act, 1872:-
Held:- Learned counsel for the respondent has also attacked the verification of the affidavit filed along with the petition on another ground. He argued that it is also not in consonance with Form 25. The contention is that Form 25 provides the form in which the affidavit has to be filed. If we go through this form we find in the beginning of the affidavit that the deponent has to mention that he states on solemn affirmation/oath. Every paragraph has to be specifically sworn. In para 1 it has been mentioned that the depondent has to specify the contents of the paragraphs of the accompanying election petition about the commission of the corrupt practice and to say on oath that they were true to his knowledge. In the other paragraph it is required that the depondent must mention that the statements made in paragraphs ............... of the said petition and the paragraphs of the schedule annexed thereto were true to his information. Thus, it has to be specifically sworn as to what paragraphs are sworn to be true to his knowledge and what paragraphs are true to his information. The learned counsel for the petitioner, on the otherhand, contended that the affidavit has been sworn by the depondent in accordance with law. I have carefully considered the contentions of the learned counsel for the parties and have also perused the affidavit in question. A perusal of the affidavit filed by the petitioner which is at page 31 of the petition shows that in para 1 he has mentioned certain paragraphs about the commission of corrupt practices and has sworn them to be true "to his knowledge and belief". In the second paragraph it appears that it has been sworn on the basis of belief. There is also no mention of schedule. In the verification clause the deponent has made a sweeping verification to the effect that contends of para No. 1 and 2 of the above affidavit were true to his knowledge and belief. This verification cannot be said to be in confirmity with the above form because there is no specification whatsover as to what contents were true to the knowledge of the depondent and what were true on information. He has no where separated the allegations which were true to his knowledge and which were believed by him to be true. There is also no mention of schedule. I am, therefore, of the view that the affidavit is certainly not in confirmity with the law as contended by the learned counsel for the respondent. (Para 16).
AIR 1998 MADHYA PRADESH 185
Laxman Jaidav Satpathy and others, Petitioners v. Union of India and others, Respondents.
M.P. No. 2834 of 1992, D/- 30 -4 -1997.
Pleading law – Plaint/ petition not duly verified and signed – It is incompetent and incomplete – Bound to be rejected – Rule 6 of the M.P. Legislative Assembly members (Disqualification on the ground of Defection) Rules (1986) – Order 6 Rule 15(2) of the Code of Civil Procedure, 1908.
Held:- Learned counsel for the petitioners also submitted that the petitioners sought time to lead evidence as the time given was very short but the Speaker refused the request and proceeded to decide the matter with post-haste. Therefore, the order suffers from the/vice of principles of natural justice. We need not dilate on this question. We are satisfied that the order impugned is bad in law and without jurisdiction as the petition was not duly verified and signed as per Rule 6 (6) of the Rules of 1986 rendering it incompetent and incomplete and the Speaker could not have examined the same on merits. (Para 10).
(NOT FOR INCLUSION IN THE BOOK: SIR, THIS POINT HAD NOT BEEN READ IN ANY OTHER PLEADING BOOK BY MYSELF. RELYING UPON THIS LAW, ENTIRE BOOK’S PLEADING SHOULD BE REVISED AT VERIFICATION AND AFFIDAVIT PORTIONS, WHICH WILL TAKE A LOT OF TIME, THUS THE HESITATION TO START THAT WORK).
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PLEADING TO CONTAIN ONLY MATERIAL FACTS AND NOT EVIDENCE:
Relevant provision of law to explain this point is given below for immediate reading: Code of Civil Procedure, 1908, Order 6 Rule 2:
2. Pleading to state material facts and not evidence.—(1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.
How to comply this law is very difficult. How to distinguish between what are facts and what are evidence, is some time difficult. Normally what should be proved is Fact, and what should be inferred is not a fact. For example, the party can allege, what the other party had done and how he was affected. However it is up to the Court to determine whether any relief can be given because of said incident, even if proved. One important judgment is quoted in this book, because, summarizing that in any manner might have reduced the effect, to explain this law point:
Material facts and particulars, definition, 1958 MP
AIR 1958 MADHYA PRADESH 168 (VOL. 45, C. 58)
Hari Vishnu Kamath, Petitioner v. Election Tribunal, Jabalpur and another, Respondents.
Misc. Petn. No. 155 of 1957, D/- 9 -9 -1957.
Pleading, rules of – Words “material facts” and “particulars” – It does not mean evidence – Tribunal’s order Striking out of a para is quashed – Certiorari writ petition partly allowed – Section 83 of Representation of the People Act (43 of 1951).
Held: The above quotation makes a distinction between 'material facts' and 'particulars'. Neither of course includes evidence which is required to prove the allegations. The same scheme is to be found in the Code of Civil Procedure, where the cause of action has to be stated with completeness and unless there is a complete cause of action the plaintiff is not entitled to judgment. Indeed the plaint can be rejected if it does not disclose a complete cause of action. Where, however, the cause of action involves narration of particulars, e.g., in a case of fraud, those particulars-have to be supplied with sufficient clarity and precision. Unless the particulars are sufficient, an issue cannot be set down for trial. In asking for particulars the Court is not entitled to ask for the disclosure of evidence with which the material facts or the particulars are to be proved. The same scheme, as we have pointed out above, also is to be found in the Act. Here too material facts are kept separate from particulars, and the particulars have to be full and sufficient and not vague or indefinite. (Para 14).
election petition as a result of disobedience. (Paras 18, 20)
CASES REFERRED: Paras
(A) AIR 1927 Mad 130 (V 14): ILR 50 Mad 130 (FB) 9
(B) AIR 1953 All 624 (V 40) 9
(C) (1936) 1936-1 KB 697: 105 LJ KB 318 13
(D) (1878) 4 QBD 127: 48 LJQB 135 13, 23
(E) (1892) 1892-1 QB 319 : 61 LJ QB 236 13, 23
(F) (1949) 1949 AC 24: 92 Sol go 673 20
(G) AIR 1957 SC 444 (V 44): 1957 SCR 370 21
(H) AIR 1955 SC 610 (V 42): 1955-2 SCR 428 24
B.R. Mandlekar with P.K. Tare, for Petitioner; M. Adhikari, A.G., (for No. 1) and R.S. Dabir (for No. 2), for Opposite Party.
Judgement
ORDER: This petition by one Shri Hari Vishnu Kamath is directed against an order passed by the Election Tribunal, Jabalpur, presided over by Shri M. V. Bhide, on 12-8-1957, in an election petition filed by the petitioner to question the election of Shri Magahlal Bagdi, the second respondent in the case.
2. The matter arises out of an interlocutory order by which the petitioner has been asked to supply better particulars which, according to the Tribunal, were not fully stated in the petition. An anticipatory order striking out those particulars held to be vague, has also been passed, if the order is not obeyed within the time fixed.
3. The facts of the case are simple. The election petition was presented to question the election of the second respondent on the ground-that corrupt practices were committed by the returned candidate or his election agent or other persons with the consent of the returned candidate or his election agent, or that in any event the result of the election, in so far as it concerns the returned candidate, was materially affected by corrupt practices committed in the interest of the returned candidate by persons other than the candidate or his election agent or persons acting with the consent of such candidate or his election agent, and by non-compliance with the provisions of the Constitution or of the Representation of the People Act, 1951 (hereinafter referred to as the Act) or of rules and orders made under the Act.
4. In setting up his case against the returned candidate Shri Kamath divided his petition into three parts. The first part of the petition is to be found in pargarph 5 (I) of the petition which has been summarised by us in brief in paragraph 3 above. The second part (Paragraph 5(n)) dealt with the corrupt practices and divided them into five classes. They are briefly:
(a) Bribery, i.e., gifts, offers or promises made by the candidate or his agent, etc., to induce voters or electors to vote for the second respondent,
(b) undue influence exercised on the voters or the electors,
(c) hiring and procuring of vehicles by the candidate and his agent or other persons,
(d) publications by the said candidate or his agent or by other persons of statements of fact which were or are false, and which he or they
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either believed to be false or did not believe to be true,
and
(e) obtaining or procuring, or attempting to obtain or procure by the candidate or his agent or by other persons assistance for furtherance of the prospects of the returned candidate's election from persons in the service of the Government and belonging to the classes mentioned in S. 123 (7) of the Act.
Thereafter the petitioner set out the third part which described the particulars of these corrupt practices, and they are contained in paragraphs 7 to 29 of the petition. It is not necessary to refer to these particulars here.
5. When the matter came before the Tribunal the second respondent raised an objection that the particulars given in the petition were too vague and indefinite and that they should be struck out. In reply to that application the petitioner stated that he was willing to state further particulars as the Tribunal may be pleased to order, and thus the order of the Tribunal came to be made.
The Tribunal scanned the petition and found fault with many of the particulars which were mentioned in paragraphs 7 to 29 of the petition on the ground that they were vague and indefinite, and ordered the petitioner to supply more particulars on pain of the particulars such as they were being struck out.
The Tribunal also ordered the petitioner to delete paragraph 5(11) of the petition which contained a list of corrupt practices in general, details of which were given in paragraphs 7 to 29 of the petition. The Tribunal also saddled the petitioner with Rs. 100/- as costs of adjournment and ordered that the verification of the petition, which was said to be defective, should be brought in line with the Code of Civil Procedure.
6. When this order was made the present petition for a writ of certiorari was filed in this Court. As a consequence of the admission of the petition, notice of which was voluntarily taken by the second respondent, we understand that the Tribunal has been pleased to stay its hands till the orders of this Court are made known.
7. The contention of the petitioner is that after the amendment of the Act in 1956 the power to order particulars does not lie with the Tribunal. The petitioner also contends that after this amendment no order of a consequential nature like the striking out of particulars can be made by the Tribunal because such power does not flow from the Act. He further contends that by striking out paragraph 5(11) of the petition the whole of the election petition is displaced and that, in fact, there will be no election petition to try. The petitioner also contends that the order awarding adjournment costs to the second respondent was illegal.
8. In answer to these contentions, curiously enough, the learned counsel for the second respondent, agrees that the ordering of better particulars is not within the competence of the Tribunal. He also agrees that paragraph 5(II) of the petition could not rightly be deleted. But he contends that the petition as it stands is vague and the particulars supplied are indefinite, and that the Tribunal was competent to order the striking out of such particulars as were not worth trying.
9. In answer to the writ nisi issued by this Court the learned Advocate-General appeared. He found himself in an unhappy position because he had to support the order of the Tribunal, but he frankly put before us his point of view and raised a preliminary objection that this Court had no jurisdiction to pass an order of certiorari in this matter because the Tribunal made the order on a request of the petitioner himself and not in invitum.
He, therefore, contended on the authority of Latchmanan Chettiar v. Commissioner of Corporation of Madras ILR 50 Mad 130 : (AIR 1927 Mad 130) (FB) (A) and the cases cited therein, and J. K. Iron and Steel Co. Ltd., v. Labour Appellate Tribunal of India AIR 1953 All 624 (B) that this Court should dismiss the petition in limine. We shall deal with this objection at a subsequent stage of our order.
10. The main contentions of the parties centre round the effect of the amendments which have been made in the Act by the amending Act of 1956. These amendments are of a far-reaching character and have been made in various parts of the chapter dealing with the trial of election petitions. The total effect, therefore, of these amendments has to be worked out before we can deal adequately with the order impugned before us.
We need not refer to all the sections that have been amended but we shall refer only to those which bear upon the present matter. Those sections are sections 83, 85, 90 and 92 of the Act. Unfortunately, in making the amendments Parliament did not stick to the original number of the sections but made alterations by engrafting portions of some sections into other sections and therefore there is difficulty in comparing the old and the new sections side by side. The main changes which were introduced by the amending Act concern sections 83, 85 and 90 (4) of the Act. We shall reproduce the terms of those sections:
"83. (1) An election petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings.
(2) The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice.
(3) The Tribunal may, upon such terms as to costs and otherwise as it may direct at any time, allow the particulars included in the said list to be amended or order such further and better particulars in regard to any matter referred to therein to be furnished as may, in its opinion, be necessary for the purpose of ensuring a fair and effectual trial of the petition."
"85. If the provisions of S. 81, S. 83 or S. 117 are not complied with, the Election Commission shall dismiss the petition:
Provided that, if a person making the petition satisfies the Election Commission that sufficient cause existed for his failure to present the petition within the period prescribed therefor, the Election Commission may, in its discretion, condone such failure."
@page-MP171
"90(4) Notwithstanding anything contained in S. 85, the Tribunal may dismiss an election petition which does not comply with the provisions of S. 81, S. 83 or S. 117."
11. As against this we must now quote the cognate provisions as they emerge after the amendments in the Act. The relevant sections in this connection are Ss. 83, 85 and 90. The change, which was introduced in S. 83, relevant to the present enquiry is as follows: "(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 each such practice..................."
Section 85 as amended reads as follows:
"85. Procedure on receiving petition. - If the provisions of S. 81 or S. 82 or S. 117 have not been complied with, the Election Commission shall dismiss the petition:
Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard."
We need not quote S. 90 in its entirety. We are concerned only with sub-sections (3) and (5) as amended which read as follows:
"90. (3) The Tribunal shall dismiss an election petition which does not comply with the provisions of S. 81, S. 82 or S. 117 notwithstanding that it has not been dismissed by the Election Commission under S. 85.
X X X X X X X
(5) The Tribunal may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition."
12. Before we discuss the case it is necessary to refer to two other sections and they are S. 90 (1), which reads as follows:
"90. (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (V of 1908), to the trial of suits:", and S. 92 which confers on the Tribunal certain specific powers exercisable under the Code of Civil Procedure, particularly the power of discovery and inspection.
13.An examination of the scheme of the Act will show that the party filing an election petition is required to state therein two things. This is to be found in S. 83 which says that an election petition shall contain a concise statement of the material facts on which the petitioner relies and shall set forth full particulars of any corrupt practice, etc. A distinction is made between a statement of the material facts land particulars of any corrupt practice. Under the unamended Act a list of corrupt practices had to be filed. Not much difference has, however, been made, though the language has been changed, between the requirements