K. Meenakshisundaram vs S.R. Radhakrishna Pillai

(1) This civil revision petition is the second of its kind arising in the same proceedings, i.e., election petition, O. P. No. 10 of 1959, on the file of the

court of the Subordinate Judge, Kumbakonam, acting as Election Tribunal. The first of the petitions, C. R. P. No. 1378 of 1959, was filed under

S. 115 C.P.C. and since it was understood that such a petition would not lie, that petition has been substituted by the present petition. Therefore, it

is not necessary to consider any point arising out of the earlier petition.

(2) The present petition under consideration is one which seeks to set aside the order of the learned Election Tribunal in I. A. No. 253 of 1959 in

the said O. P. No. 10 of 1959. The facts relevant to this petition are that the present petitioner, who is respondent in the said O. P., is the

candidate declared elected in a municipal election for ward VII of Kumbakonam municipality. The respondent in this civil revision petition who was

defeated by about 33 votes in the said election, has preferred an election petition to set aside the election of the petitioner in the civil revision

petition on the ground that he resorted to various corrupt practices set out in the election petition. In the course of the pendency of the original

petition before the tribunal, the respondent before me took out an application under O. 11, R. 1 C.P.C. relating to discovery and inspection,

praying that the election Tribunal should be pleased to administer certain interrogatories to the respondent in the said original petition.

That petition was taken out under R. 1. It was objected to by the present petitioner in the civil revision petition. The objection was overruled by the

election tribunal on the ground that ""the provisions contained in the CPC would apply in regard to discovery and inspection; and that O. XI Rule 1

C.P.C. referred to discovery which includes interrogatories as well. Therefore, the petitioner is well within his limits to administer interrogatories to

the respondent to get the relevant answers."" Against this order, the respondent in the said original petition has preferred this civil revision petition.

(3) The learned counsel, Mr. K. Raman, appearing on behalf of the respondent in this civil revision petition, took exception to the maintainability of

this civil revision petition itself on the ground that Art. 227 of the Constitution does not enable the petitioner to come up with such an application

against the order of the election tribunal. I have heard him in full; and I do not think that his arguments have any force. The question as to whether

the application under Art. 226 of 227 could be filed, has been given final rest by the decision of the Supreme Court in Hari Vishnu Kamath Vs.

Syed Ahmad Ishaque and Others, . The passage occurring at page 165 of the said decision (Mad LJ (SC)): (at p. 243 of AIR) is in very clear

terms, and it states:

We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under Art. 227 of the Constitution, and

that that superintendence is both judicial and administrative. That was held by this Court in Waryam Singh and Another Vs. Amarnath and

Another, , where it was observed that in this respect Art. 227 went further than S. 224 of the Government of India Act, 1935, under which the

superintendence was purely administrative, and that it restored the position under S. 107 of the Government of India Act, 1915. It may also be

noted that while in a certiorari under Art. 226 of the High Court can only annul the decision of the Tribunal, it can, under Art. 227, do that, and

also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of certiorari and for other reliefs

was maintainable under Art. 226 and Art. 227 of the Constitution.

Therefore, there can be no more argument against the maintainability of the Civil Revision Petition against the order of Election Tribunal when that

tribunal is giving decision of election disputes under the Madras District Municipalities Act, 1920 in regard to elections to Municipalities and Local

boards.

(4) The next objection taken by the learned counsel against the maintainability of this civil revision petition was on the ground that the respondent in

the original petition was bound to answer the interrogatories as it was intended to simplify the matters before the actual trial of the petition took

place; and that as a matter of fact, all the questions that have been included in the interrogatories to be administered to the respondent in the

original petition are quite simple and do not lead to any complications; and that it was within the power of the election tribunal to order such

interrogatories.

It is true that under O. 11 R. 1 and following the rules under that order the election tribunal acting as a tribunal in conformity with the rules of the

Civil Procedure Code, is empowered to order interrogatories. But, before interrogatories could be ordered it is also incumbent upon the Tribunal

functioning as a judicial authority to apply its mind and see the effect, import and significance of the interrogatories that are sought to be

administered the respondent by the petitioner in the original petition.

Though the interrogatories have been claimed by the learned counsel for the respondent in this civil revision petition to be quite harmless and

simple, still, it cannot be denied that when they will be put to the petitioner in this civil revision petition, to be answered by him, there will be a lot of

inconvenience, and also incrimination of himself by reason of the answers that he is expected to give to these questions. Simply because the

election tribunal has powers under the CPC under which the election tribunal proceedings are to be conducted, it does not mean, however, that all

interrogatories that are submitted to the court could be directed against the respondent forthwith. If there is any objection from the respondent to

the answering of these interrogatories, it is the bounden duty of the court to examine as to how far they are tenable in the present case.

A reading of the interrogatories would certainly indicate that these interrogatories are not so innocent and so simple as the learned counsel would

appear to make them. That the respondent is not bound to answer the interrogatories which are likely to lead into an incrimination of himself in any

criminal offence, has been held in several cases of the English as well as the Indian courts. Suffice it for me to refer to only two decisions of the

English cases reported in Queen''s Bench Division Vol. II and X. The first decision is in Atherley v. Harvey, 1876 2 QBD 524, where it has been

held:

Interrogatories asking the defendant whether he has composed or published an alleged libel are objectionable, and will be struck out without

requiring the defendant to object to them by way of answer.

In this decision it is cited:

Demurrers to discovery may be arranged under the following heads: 1. That the discovery may subject the defendants to pains and penalties, or to

some forfeiture, etc. If, therefore, a bill alleges anything which, if confessed by the answer, may subject the defendant to a criminal prosecution--the

defendant may object to the discovery.

Lush J. referred to Wigram on Discovery, 2nd Edn. p. 80, S. 130 to the following effect,

If a question involves a criminal charge, the plaintiff is not entitled to an answer to such question, however material it may be to the plaintiff''s case

citing Thorpe v. Macauley, (1820) 5 Madd. 218. 1876 2 QBD 524. Mellor J. discussed the definition between the powers conferred on the

Judges by the Common Law Procedure Act and the Rules of Equity which were binding upon the Judges. The learned Judge held:

Where there is any conflict between the rules of law and the rules of equity, the rules of equity are to prevail, and consequently even a tribunal

composed of the same Judges, as men though not the same Judges, as men though not the same judges in their character as judges, since they are

now judges of the High Court, will be no longer governed by the clauses of the Common Law Procedure Act, if those clauses conflict with the

rules of equity, but will be governed by the rules of equity."" 1876 2 QBD 524.

In the instant case, what the learned counsel seeks to emphasise is that it was within the powers of the Tribunal to order interrogatories; and,

therefore, he was right in having ordered those interrogatories. But the fact remains that the tribunal did not consider the rules of equity which ought

to have been in its mind when it was ordering the interrogatories. As already observed, to possess the power to order is one thing; and to find out

whether such interrogatories could be administered at all is another, and in so far as this the election Tribunal does not appear to have exercised its

mind in accordance with the rules of equity, despite the fact that the common law denies interrogatories to the respondent. Field J. concurring with

Mellor J. has observed,

It is well established in equity that a bill of discovery for the purpose of obtaining the information which is asked for here would be demurrable,

that is, the court of Chancery would not allow the defendant to be harassed by having to answer such questions, but would prevent them from

being put,"" 1876 2 QBD 524.

The third Judge also concurred with the other two Judges. In Lamb v. Munster 1882 10 QBD 110, it was held.

An objection to answer interrogatories which is made by affidavit on the ground of the tendency of the answer to criminate the person interrogated

may be valid, although not expressed in any precise form of words, if, from the nature of the question and the circumstances, such a tendency

seems likely or probable. In an action for libel the defendant pleaded a denial of the publication, and to interrogatories asking him, in effect,

whether he published the libel he stated by his affidavit in answer; I decline to answer all the interrogatories upon the ground that my answer to

them ''might'' tend to criminate me.

(5) It was held in this decision that this answer was sufficient not to lay the interrogatories. The learned Judges have observed in the course of the

judgment.

It becomes the duty of the Judge to look at the nature and all circumstances of the case and the effect of the question itself, to see whether it is a

question the answer to which will really tend to criminate the witness."" 1882 10 QB 110.

It was further observed by Field J.:

I should not regard the form of works, but look to see whether answering would be likely to have or probably would have such a tendency to

criminate, and bearing in mind the cardinal rule that a man shall not be compelled to criminate himself, I should almost prefer a man to be careful

and say the answer might tend to criminate, and I should be slow to commit him to prison for not doing that which the law says he is not bound to

do."" 1882 10 QBD 110.

(6) Stephen J. observes more succinctly in the same judgment when he stated.

It is not that a man must be guilty of an offence and say substantially. ''I am guilty of the offence, but am not going to furnish evidence of it.'' I do

not think the privilege is so narrow as that, for then it would be illusory. The extent of the privilege is that I think this: The man may say, ''If you are

going to bring a criminal charge, or if I have reason to think a criminal charge is going to be brought against me, I will hold my tongue. Prove what

you can, but I am protected from furnishing evidence against myself out of my own mouth''."" 1882 10 QBD 110.

(7) The learned Judge also quoted from Cockburn C. J. when he stated as follows:

It was contended that a bare possibility of legal peril was sufficient to entitle a witness to protection; nay, further, that the witness was the sole

judge as to whether his evidence would bring him into danger of the law; and that the statement of his belief to that effect, if not manifestly made

mala fide, should be received as conclusive.: 1882 10 QBD 110.

But the further passage quoted by the learned Stephen J. is to the following effect:

But he goes on to say that ''the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to

give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer'' and also the danger must be real and

appreciable."" 1882 10 QBD 110.

Applying the principle of these two decisions, and scrutinising the interrogatories, it is clearly evident to my mind that in the present case, the

petitioner (respondent in the lower court) is asked whether he has written the letters, and did the several acts referred to in the interrogatories, and

if he answers them, they may endanger him, and if that answer is not in any way mala fide, then certainly it ought to be considered sufficient as not

to entitle the court to order the interrogatories. If the witness called upon to answer interrogatories says this that the answer would tend to

incriminate him, meaning thereby that it would tend to bring criminal prosecution for a crime of which he might be innocent in fact, and of which he

might be accused, certainly that would be a situation where the interrogatories cannot be allowed.

(8) On a consideration of all the aspects of this application filed by the petitioner in the original petition and the objection taken to the same by the

respondents, I am of the opinion that the learned Election Tribunal was not justified in ordering the interrogatories; and this civil revision petition is

certainly competent; and it has to be allowed and it is allowed with costs.

(9) It may further be observed that all the points that arise in the interrogatories would be subject of a cross-examination of the petitioner in the civil

revision petition when he goes into the witness box and nothing could prevent the petitioner in the original petition to cross examine him on all the

aspects which are contained in the interrogatories. It need not be held that because the interrogatories could not be administered, questions

concerning the points that arise in the interrogatories are also not admissible when the respondent in the original petition is in the witness box to

support his case. In fact, all these points that arise from the interrogatories could be very well put to the respondent in the original petition and

answers elicited from him in the course of the trial of the petition, and subject to any objections that might be raised by the witness from the witness

box stating his inability to answer the same.

(10) The order and records in this petition will be despatched expeditiously so that the trial of the election petition need not be held up.

LC/H.G.P.

(11) Revision petition allowed.