Abhay Singh vs Shri Rakesh Singh @ Ghanshyam Singh on 5 April, 2016

[Cites 20, Cited by 1]

Madhya Pradesh High Court

Abhay Singh vs Shri Rakesh Singh @ Ghanshyam Singh on 5 April, 2016

        HIGH COURT OF MADHYA PRADESH : AT
                                  JABALPUR
                  Election Petition No.34/2014
                                 Abhay Singh
                                         Vs.
                                Rakesh Singh
â¦.......................................................................................
.......................
Present:- Hon'ble Shri Justice C.V. Sirpurkar
............................................................................................
...........
Shri G.S.Ahluwalia with Shri H.K.Upadhyaya Advocates
for the petitioner.
Shri R.N.Singh, Senior Advocate with Shri Arpan J.
Pawar, Advocate for respondent.
............................................................................................
...........
                                    ORDER

(05-04-2016) I.A.No.11886/2015

1. This application under Order XIV Rule 5 of the Code of Civil Procedure, has been filed on behalf of election petitioner for amendment in the Issues framed on 27th day of August, 2015.

2. It has been submitted hereby that this election petition has been filed on the ground of corrupt practices committed by the respondent (elected candidate). It has been specifically pleaded in the election petition that the corrupt practices have been committed with the consent of the respondent; however, in Issue Nos.1(a), 1(b) & 1(c), the word âconsentâ does not a find place; therefore, it has been prayed that the word âconsentâ be inserted at suitable places in the aforesaid Issues.

3. A written reply to the application has been filed on behalf of the respondent. It has been contended in the reply that as the election petitioner has not pleaded that the corrupt practices were committed with the âconsentâ of the respondent, it is not open to the petitioner, to seek aforesaid modification in the Issues; therefore, the application is sans merit and deserves to be dismissed.

4. Issue Nos. 1(a), (b) & (c) are based upon the pleadings in paragraph Nos.7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the election petition. Though, in paragraph no. 6 of the election petition, the petitioner has pleaded that âthe election of respondent No.1 is illegal, bad and void and is liable to be declared so for the reason that corrupt practice has been committed by the returned candidate and or his election agent and or by other persons with the consent of the respondent or his election agentâ but aforesaid paragraphs, wherein specific instances of alleged corrupt practices have been recounted, expression âconsentâ is conspicuous by its absence. In paragraph Nos.7, 8, 9, 10, 11, 12, 13, 14 & 15, it has been specifically pleaded that the corrupt practices were committed âat the behest of the respondentâ. It was further pleaded that the respondent assured that he will ensure that no action against Golu Singh and Neeraj Singh and their associates would be taken by the police authorities and or District Administration and that they will have free hand in terrorizing the voters. Therefore, in Issue No. 1(a) the expression âat the behest, instigation and assurance of protection from the respondentâ, was used and in Issue No.1(c) expression âat the behestâ was used.

5. Likewise, there are no pleadings in the election petition that Sushri Pratibha Singh, MLA and Shri Sharad Jain, Minister in State Cabinet had pressurized or illegally influenced Additional S.P. Shri Mahesh Chandra Jain to delete the name of aforesaid Neeraj Singh and register a counter FIR against the victims, including the petitioner, with the consent of the respondent. As per relevant pleadings, they appear to have acted on their own, though, in the presence of respondent, who also exercised pressure and illegally influenced the police officer. Thus, word âconsentâ has been studiously avoided in Issue No. 1(b) also.

6. In any case, the expression âat the behest, instigation and assurance of protection from the respondentâ travels way beyond in meaning than expression âconsentâ. Aforesaid expression implies consent and much more; therefore, word âconsentâ need not be and cannot be incorporated in aforesaid issues.

7. Consequently, I.A.No.11886/2015 is dismissed.

I.A.No.12273/2015

8. This application has also been filed for amendment in the issues under Order XIV Rule 5 of the Code of Civil Procedure, though, by the respondent.

9. It has been submitted that the issues as framed, are vague and non-specific. It will not be proper to lead evidence on the basis of such issues. It has been submitted that the petitioner has nowhere pleaded in the election petition that the respondent instigated Golu Singh and Neeraj Singh for terrorizing the voters in the villages falling under Bargi Constituency. Likewise, there is no specific pleading in the petition that the respondent obtained assistance of the officials for furthering his election prospects; therefore, Issue No.1(b), needs to be struck off. It has also been submitted that though, the respondent has taken specific objection in the written statement to the maintainability of election petition; no specific issue in that regard has been framed. Thus, a specific issue as to whether the petitioner has any cause of action surviving after deletion of paragraph nos. 17 to 20 of the petition and on the basis of CD (Annexure-P/4) without satisfying the requirements of section 65B (4) of the Evidence Act, needs to be framed. An issue on the basis of the pleadings that the respondent did not visit village Mankhedi on 03-04-2014, as he was pursuing his election campaign in other villages, approximately 40-45 k.ms. away from village Mankhedi, is also required to be framed.

10. The petitioner has opposed the aforesaid application by filing a written reply. It has been submitted therein that the issues were framed by the Court with the assistance and concurrence of both the parties. It is denied that the issues are vague and non-specific. It has been specifically pleaded by the petitioner that aforesaid Golu Singh and Neeraj Singh had terrorized the voters of Bargi Constituency at the instigation of the respondent. It has also been pleaded that the respondent had obtained the assistance of police officials. The petitioner has also contended in his reply that the application of the respondent under Order 7 Rule 11 of the CPC has already been dismissed by the Court. In the garb of amendment of issues, the respondent is trying to re- agitate the grounds which have already been rejected by the Court along with the application of the respondent under Order 7 Rule 11 of the Code of Civil Procedure. Thus, he is trying to achieve indirectly, what he failed to achieve directly. No issue can be framed on the ground of admissibility of evidence. Therefore, it has been prayed that I.A.No.12273/2015 be dismissed.

11. Having gone through the pleadings of the parties and on due consideration of the rival contentions, the Court is of the view that I.A.No.12273/2015 must succeed in part, for the reasons hereinafter stated:

12. The contention of respondent that it is nowhere pleaded in the election petition that the respondent had instigated Golu Singh and Neeraj Singh to terrorize the voters, is not acceptable as in paragraph No.7, it has been specifically averred that at about 7:00 p.m. on 03-04-2014 at village Mankhedi, the petitioner had seen and heard respondent asking Sushri Pratibha Singh (BJP MLA from Bargi Assembly Constituency) to let her sons Golu Singh and Neeraj Singh loos their terror on the Constituency and should use all means, including unfair, to do so. She was also assured by the respondent that no action against her sons and their associates would be taken by the District Administration and police authorities. Aforesaid action on the part of the respondent, as pleaded in paragraph No.7 of the election petition, is tantamount to instigation. Therefore, this contention of the respondent is liable to be rejected.

13. It has also been contended in the application that Issue No.1 (b) needs to be struck off as there is no specific allegation with regard to the obtaining of assistance of the officials by the respondent. This contention also deserves to be rejected, as it has been specifically pleaded in paragraph Nos.13, 14, 15 & 16 of the election petition that the respondent, Smt. Pratibha Singh and Shri Sharad Jain exercised undue influence and pressure upon Additional S.P. of the district police force, Shri Mahesh Chandra Jain to delete the name of Neeraj Singh from the FIR and register a counter FIR against the petitioner and other injured persons, who were workers of Congress Party. Thus, the respondent had obtained assistance of members of police force which was in contravention of section 123(7) of the Representation of People Act, 1951.

14. The respondent has also submitted in the application that in spite of the specific objection as to the maintainability of the petition having been taken by the respondent in this regard, no issue on that count has been framed. It may be stated in this regard that the plea with regard to maintainability of petition has mainly been taken on the grounds that paragraph Nos. 17 to 20 of the election petition having has been directed to be struck off and requirements of section 65B (4) of the Evidence Act, have not been fulfilled by the petitioner in respect of CD (Annexure-P/4); therefore, nothing survives for adjudication in this election petition. In this regard, it may be noted that an application filed on behalf of the respondent under Order 7 Rule 11 of the CPC, has already been disposed of by this Court on 14-05-2015. The SLP filed against the aforesaid order dated 14-05-2015 has also been dismissed by the Supreme Court. The matter with regard to deletion of paragraph no. 17 to 20 and failure of compliance with section 65B (4) of the Evidence Act, has been raised in another application (I.A.No.15176/2015) filed on behalf of the respondent, which shall be considered in the succeeding paragraphs of this order. Suffice it to say that due to reasoning given in succeeding paragraphs of this order, a specific issue with regard to maintainability of the election petition also need not be framed.

15. Having observed as aforesaid, upon a minute examination of the pleadings of the parties and Issues framed on 27th of August, 2015, the Court is of the view that issues needs to be reframed with a view to make them more accurate and specific. Though, the respondent may lead his evidence with regard to the fact that on 03-04-2014, he was in villages, approximately 40-45 k.ms. away from village Mankhedi, while opposing Issue No.1(a), yet in the interest of clarity, it would be advisable to frame a specific additional issue on the point as well. Likewise in view of the specific pleadings of the respondent in paragraph No.6 of the written statement, a specific issue with regard to alleged absence of any connection between the respondent on one hand and Golu Singh and Neeraj Singh on the other during the election campaign, should also been framed.

16. On the basis of foregoing discussion, the issues are resettled. I.A.No.12273/2015 stands disposed of accordingly.

I.A.No.13736/2015

17. This is an application under Order VII Rule 14 read with Order XIII Rule 1 of the CPC filed on behalf of the election petitioner for leave to produce certificate under section 65-B (4) of the Evidence Act.

18. It has been submitted hereby that the petitioner has pleaded in the election petition that the conversation between the respondent, Smt. Pratibha Singh and Shri Sharad Jain on one hand and Additional S.P. Shri Mahesh Chandra Jain on the other, was video-graphed by Shri Ajeet Tiwari on a memory card. He had prepared a copy of the original recording from memory card on a Compact Disc (Annexure-P/4). An affidavit of Shri Ajeet Tiwari stating aforesaid facts, was filed along with the election petition. As such, there was substantive compliance with the provisions of section 65B (4) of the Evidence Act; however, by way of abundant caution, the petitioner proposes to file an affidavit as per requirement of section 65B (4) of the Evidence Act. Therefore, leave be granted to the petitioner to file aforesaid affidavit in support of the Compact Disc (Annexure-P/4).

19. The respondent has filed a written reply to the application. It has been contended that the application is totally misconceived and is not maintainable in view of provisions of sections 81 & 83 of the Representation of People Act, 1951. The certificate presented by the petitioner is neither verified in terms of section 83(2) of the Act nor is it in conformity with the requirements of section 65-B of the Evidence Act. After filing of I.A.No.12273/2015 by the respondent, the petitioner has realized his mistake and the application under reply, in substance, seeks to amend the election petition which is not permissible in view of section 81 of the Representation of People Act, 1951. The certificate on affidavit cannot be said to certify the contents of the Compact Disc, which is already on record in view of the fact that the original memory card was no longer in possession of the person certifying the CD. Therefore, it has been prayed that the application be dismissed.

20. Before proceeding to consider I.A.No.13736/2015, it would be appropriate to take a look at the relevant provisions of the Evidence Act regarding admissibility of electronic record in evidence and the law laid down by the Supreme Court in the case of Anwar P.V vs. P.K. Basheer, (2014) 10 SCC 473 regarding interpretation of those provisions. In aforesaid case, laying down law regarding the scope and applicability of section 65-A and 65-B of the Evidence Act, a three judge bench of the Supreme Court has held as follows:

14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-

B(2). Following are the specified conditions under Section 65-B(2) of the Evidence Act:

(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

15. Under Section 65-B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-Aâopinion of Examiner of Electronic Evidence.

18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India.

19. It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility.

20. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with Sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65-B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.

21. In State (NCT of Delhi) v. Navjot Sandhu 2 a two- Judge Bench of this Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerised records of the calls pertaining to the cellphones, it was held at para 150 as follows: (SCC p. 714) â150. According to Section 63, âsecondary evidenceâ means and includes, among other things, âcopies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copiesâ. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed â * at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.â It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed under Section 65-B of the Evidence Act. However, it was held that irrespective of the compliance with the requirements of Section 65-B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65, of an electronic record.

22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case 2 , does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

23. The appellant admittedly has not produced any certificate in terms of Section 65-B in respect of the CDs, Exts. P-4, P-8, P-9, P-10, P-12, P-13, P-15, P-20 and P-22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.

24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act.

(Emphasis Supplied)

21. This Court by order dated 4-1-2016 passed in the case of Kamal Patel vs. Ram Kishore Dogne [E.P.No.24/2014] held as follows:

11. In the case of Anwar P.V.(supra), compact discs were used for announcing objectionable matter, songs etc.;

however, CDs from which the objectionable matter was played, had not been got duly seized by the petitioner through police or Election Commission. In these circumstances, the Supreme Court observed that had the CDs from which the objectionable matter was played, been got seized through police or Election Commission, they would have constituted primary evidence and could have been produced by the petitioner without the certificate as envisaged under section 65-B (4) of the Evidence Act. In the case of Anwar P.V. (supra) objectionable speeches, songs and announcement were recorded using other instruments and by feeding them into a computer, CDs were made therefrom, which were produced in the Court, without due certification. Therefore, Supreme Court held that such CDs could not be admitted in evidence because mandatory requirements of section 65-B, were not satisfied.

12. In the case at hand, the objectionable matter formed part of the speeches made in the public meetings convened by the respondent. Those speeches were recorded video-graphed by the Election Commission, presumably by using video cameras. Thereafter, the contents of the memory card of the video cameras must have been transferred to a computer and the CDs forming record of the Election Commission must have been prepared. Thus, even the so called original CDs in the record of the Election Commission, would not constitute primary electronic evidence of the speeches. Moreover, in the case at hand, the CDs supplied to the petitioner were copies of the record maintained in the Election Commission and annexures P/19 to P/25 are in fact the copies prepared from the copies supplied to the petitioner by the Election Commission. Thus, in order to ensure the source and authenticity of the electronic record, a contemporaneous certificate issued at the time of each transfer in terms of section 65-B (4) of the Evidence Act, would be required because the Supreme Court has specifically held that in the case of CD, VCD, chip etc, the same shall be accompanied by the certificate in terms of section 65-B obtained at the time of taking the documents, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

22. In the instant case, it is not disputed that the Compact Disc sought to be produced in evidence is not the original evidence in electronic form. The original evidence was the memory card inserted in the card slot of the video camera at the time of video recording. As per petitioner's own pleadings, that memory card has been taken away from Shri Ajeet Tiwari by Additional Superintendent of Police Shri Mahesh Chandra Jain; however, before parting with the memory card, Shri Tiwari had prepared a copy of the contents of the memory card on the Compact Disc (Annexure-A/4). Thus, there is no doubt that the Compact Disc (Annexure-A/4) is in fact secondary evidence of the contents of the memory card. Such CD ought to have been accompanied by the certificate in terms of section 65B (4) obtained at the time of taking documents, without which, the secondary evidence pertaining to that electronic record, is inadmissible. The certificate on affidavit of Shri Ajeet Tiwari purported to be filed under section 65-B (4), has been prepared a long time after the alleged transfer of the electronic record from memory card to the Compact Disc by Shri Tiwari and a long time even after filing of the election petition. There is no endorsement made by Shri Tiwari on the Compact Disc (Annexure-P/4) indicating that he had prepared the same Compact Disc from the original memory card. In these circumstances, the purported certificate under section 65-B (4) of the Evidence Act can in no case ensure the source of the secondary evidence of electronic record nor the authenticity thereof, which as per the Supreme Court in Anwar P.V (supra), is the basic purpose of a certificate under section 65-B (4). As such, no useful purpose would be served in granting leave to take such an affidavit on record.

23. Consequently, I.A.No.13736/2015 is dismissed.

I.A.No.15176/2015

24. This is respondent's second application under Order 7 Rule 11 of the CPC. The respondent submits that he had filed I.A.No.12449/2014 for striking out certain pleadings of the petitioner. It was partly allowed by the Court vide order dated 14-05-2015. As a result, paragraph Nos.17 to 20 of the election petition stood deleted. However, respondent's first application (I.A.No.10632/2014) preferred under Order 7 Rule 11 of the CPC, was rejected by the Court holding that in view of the pleadings and material placed on record, it cannot be said that the election petition is bereft of any cause of action. It has further been submitted that while rejecting I.A.No.10632/2014, the Court took note of the pleadings based on the Compact Disc and its transcript as pleaded in paragraph Nos. 13 to 16 of the election petition. However, the petitioner has failed to comply with the provisions of the section 65B (4) of the Evidence Act. As such, the Compact Disc is not admissible. The cumulative effect of deletion of paragraph nos. 17 to 20 of the election petition and cause of action based on inadmissible electronic record would be that the petitioner is left with no cause of action to pursue this election petition. Consequently, it is prayed that the election petition be dismissed at this preliminary stage.

25. In reply, the petitioner has stated that the petitioner had specifically pleaded corrupt practices and the electronic record is corroborative in nature. In fact this application under Order 7 Rule 11 of the CPC is not maintainable, as being barred by the principles of res judicata. A similar application under Order 7 Rule 11 of the CPC, was dismissed by this Court by order dated 14-05-2015. The SLP filed against the order dated 14-05-2015, was dismissed by the Supreme Court by order dated 21-09-2015 passed in SLP (Civil) No.25412-25413/2015. Thus, the respondent is also guilty of suppression of material facts. Hence, it has been prayed that the application be dismissed with heavy costs.

26. It is true that on an application filed by the respondent, paragraph Nos.17 to 20 of the election petition have been directed to be deleted by this Court; as such, the ground as contained in aforesaid paragraphs, is no longer available to the petitioner. It is also true that the attempt of the election petitioner to introduce certificate complying with provisions of section 65B (4) of the Evidence Act on record, has also failed. However, it may be noted that the grounds of corrupt practices prohibited under section 123(2)(a)(i) and section 123(7)(d) of the Representation of People Act, 1951, and allegedly committed by the respondent, are not merely based upon the Compact Disc and the transcript thereof. Even if the Compact Disc is not admitted in evidence, it would still be open to the petitioner to examine himself to prove the fact that the respondent had instigated Smt. Pratibha Singh and her two sons to let loos terror and to examine Shri Ajeet Tiwari in respect of the fact that the respondent, Smt. Pratibha Singh and Shri Sharad Jain exerted pressure and undue influence upon the police officer. It may be noted here that Compact Disc is said to contain merely the video recording of the conversation that took place between aforesaid four persons. Thus, it cannot be said that for want of electronic evidence, aforesaid facts cannot be proved at all by oral evidence.

27. Thus, this second application under Order 7 Rule 11 of the CPC also deserves to be and is accordingly dismissed.

I.A.No.16097/2015

28. This is an application under section 340 of the Code of Criminal Procedure filed on behalf of the petitioner. It has been submitted hereby that the respondent had filed an application (I.A.No.12449/2014) under Order 6 Rule 16 of the CPC and another application (I.A.No.10632/2014) under Order 7 Rule 11 of the CPC. The application under Order 6 Rule 16 was partly allowed and the application under Order 7 Rule 11 of the CPC was dismissed by this Court by order dated 14-05-2015. The respondent preferred SLP before the Supreme Court against the order dated 14-05-2015. The SLP was registered as SLP (C) Nos.25412-25413/2015. The SLPs. were dismissed by the Supreme Court by order dated 21-09-2015. However, undeterred by aforesaid dismissal, the respondent filed another application being I.A.No.15176/2015 under Order 7 Rule 11 of the CPC on 13-11-2015. In this application, the respondent deliberately suppressed the factum of filing SLPs. as aforesaid and dismissal thereof by the Supreme Court. Thus, the respondent has tried to play fraud on the Court by suppressing the material facts. As such, the respondent has shown disrespect to Hon'ble the Supreme Court and has tried to mislead this Court and has thus committed an offence under sections 199 and 200 of the Indian Penal Code.

29. It has further been submitted in the application that there is overwriting in paragraph No. 2 of the affidavit accompanying the application under Order 7 Rule 11 of the CPC (I.A.No.15176/2015), as digit 4 has been overwritten in ink. This interpolation does not contain the counter-signatures of either the Oath Commissioner or the deponent. Thus, by making a false declaration before the Oath Commissioner, the deponent has committed an offence under section 181 of the Indian Penal Code.

30. In reply, the petitioner has stated that there is no concealment of any fact while filing the application under Order 7 Rule 11 of the CPC, since it is based upon a subsequent event i.e. admission by the petitioner that he is not in possession of original electronic record. The ground taken in subsequent application under Order 7 Rule 11 of the CPC is neither covered by Court order dated 14-05-2015 by this Court nor by order dated 21-09-2015 passed by the Supreme Court. There is no question of concealment of factum of dismissal of SLP as the petitioner has invariably apprised the Court and has reminded the respondent of such dismissal on each and every hearing. It has been specifically denied that any interpolation was made in the affidavit accompanying the second application under Order 7 Rule 11 of the CPC, after it was attested by the Oath Commissioner. In any case, the alleged interpolation is totally inconsequential and does not need to be taken note of by the Court. Therefore, it has been submitted that the application under section 340 of the Code of Criminal Procedure being mischievous, is liable to be dismissed with cost.

31. It may be noted in this regard that dismissal of SLP by the Supreme Court, is notified as per rules to the concerned Court through the Registry. The order of the Supreme Court dismissing the SLP is also in public domain being available on the website of the Supreme Court. As such, it cannot be said that the respondent has deliberately misled the Court by suppressing the fact that the SLP filed by him against the order dated 14-05-2015 has been dismissed by the Supreme Court.

32. So far as alleged interpolation in the affidavit is concerned, there is no doubt that numerical 4 in paragraph No.2 in the affidavit accompanying the application under Order 7 Rule 11 of the CPC, is in ink and has not been counter-signed either by the Oath Commissioner or the deponent. However, the matter is inconsequential and trivial. It does not lead to any advantage to the respondent or prejudice to the petitioner. As such, no action in this regard is warranted.

33. Consequently, I.A.No.16097/2015 imploring the Court to conduct an inquiry and proceed against the respondent in accordance with the law, need not be allowed and is accordingly dismissed.

(C V SIRPURKAR) JUDGE

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Abhay Singh vs Shri Rakesh Singh @ Ghanshyam Singh on 5 April, 2016