Madhya Pradesh High Court
Sharadendu Tiwari vs Ajay Arjun Singh on 4 October, 2017
E.P.No.01/2014
IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
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Election Petition No. 01/2014
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Sharadendu Tiwari
Vs.
Ajay Arjun Singh
____________________________________________________
Present:-Hon'ble Shri Justice C.V. Sirpurkar
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Shri Prakash Upadhyay, counsel for the petitioner.
Shri P.D. Gupta, with Shri R.S. Siddiqui, counsel for the
respondent.
ORDER
(04/10/2017) I.A.Nos.15616/2016 & 9339/2017
1. This order shall govern the disposal of I.A.No.15616/2016 and 9339/2017 filed on behalf of the petitioner Sharadendu Tiwari under Order XVI Rule 1 (4) of the CPC for issuing summons to the witnesses.
2. It has been submitted that the petitioner Sharadendu Tiwari has appended a list of witnesses to the I.A.No.9339/2017. All of those witnesses are Government Officers/Officials. The petitioner has prayed for issuing summons to those witnesses to appear in the Court along with E.P.No.01/2014 the documents mentioned against their names, for evidence. It has been submitted that names of aforesaid witnesses had been included in the list of witnesses filed earlier by the petitioner. It has also been prayed that permission to serve aforesaid witnesses by humdast mode be also granted. The applications are supported by an affidavit of petitioner Sharadendu Tiwari.
3. Learned counsel for the respondent Ajay Arjun Singh has vehemently opposed the applications by filing a written reply. It has been submitted that the prayer made in paragraph no. 4 of I.A.No.9339/2017 does not fall within the scope of Order XVI Rule 1 (4) of the CPC. The documents which have been mentioned against the names of witnesses in the list appended to I.A.No.9339/2017, materially differ from the documents filed along with the petition. It has also been contended that no list of documents relied upon by the petitioner was filed and the petitioner cannot be allowed to widen the scope of controversy by calling for additional documents, copies whereof were not filed earlier or which did not find place in any list of documents relied upon by the petitioner. Moreover, the petitioner has not clearly described some of the documents which he wants the witnesses to produce. It has also been contended that first application for this purpose was filed on 20.11.2016 (I.A.No.15616/2016). There is substantive improvement in the second application filed for the same purpose on 06.07.2017 (I.A.No.9339/2017). Numerous documents which have now been requisitioned, were not mentioned in the earlier application for the same purpose. The E.P.No.01/2014 petitioner is seeking a direction to the witnesses to produce documents under order XVI rule 6 of CPC; however, aforesaid provision cannot be used for the purpose of expanding the scope of inquiry and introducing the documents by back door, which were neither filed along with the petition nor mentioned in any list of reliance. Moreover, no applications have been filed under Order VII Rule 14 of the CPC for permission to file documents have been filed; therefore, it has been prayed that the applications be dismissed.
4. By way of rejoinder, it has been submitted on behalf of the petitioner Sharadendu Tiwari that the documents, copies whereof have not been filed, are either required for the purpose of reference or for the purpose of refreshing the memory of witnesses. The documents which have not been filed by the petitioner have either been filed by the respondent or find mention in the pleadings of either of the parties; therefore, it has been submitted that all documents requisitioned by the petitioner through witnesses are relevant for the purpose of resolving the controversy involved in this election petition; therefore, it has been prayed that the application be taken on record and summons be issued to the parties as requested.
5. During the course of arguments, learned counsel for the petitioner has invited attention of the Court to Order 16 Rule 1, 1-A and 6 of the CPC, which read as hereunder:
1. List of witnesses and summons to witnesses.-- (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.E.P.No.01/2014
(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.
(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf within five days of presenting the list of witnesses under sub-rule (1).
1-A. Production of witnesses without summons.-- Subject to the provisions of sub- rule (3) of Rule 1, any party to the suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents.
6. Summons to produce document.-- Any person may be summoned to produce a document, without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.
6. Learned counsel for the petitioner has also invited attention of the Court to Section 87 of the Representation of People Act, 1951 which is herein-below reproduced for ready reference:
87. Procedure before the High Court.--(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.
7. Learned counsel for the petitioner has also placed reliance upon the following judgments rendered by the Supreme Court:
E.P.No.01/2014(a) Mange Ram vs. Brijmohan and others, (1983) 4 SCC 36, wherein it has been held that a party can himself produce witnesses on the date of hearing without soliciting Court's assistance for procuring presence of such witnesses. The Court has no jurisdiction to refuse to examine those witnesses on the ground of non-mention of names and gist of evidence of such witnesses. Refusal to examine the witnesses can be justified only under the proviso to section 87 of the Representation of People Act, 1951 on the ground that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(b) Ashok Sharma vs. Ram Adhar Sharma, (2009) 11 SCC The relevant paragraph nos. 15 & 16 of the aforesaid judgment read as hereunder:
15. As noted hereinearlier, Order 16 Rules 1 and 1-A of the Code, if read together, would clearly indicate that it is open to a party to summon a witness to the court or even may, without applying for summons, bring a witness to give evidence or to produce documents. Since Rule 1-A is subject to the provisions of sub-rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness, who might have been brought by a party for the purpose, the leave of the court may be necessary. This by itself would not mean that Rule 1-A was in derogation to sub-rule (3) of Rule 1. Such document brought by the said witness can be taken on record and it is not necessary that the plaintiff must have filed on record the copies of the said document earlier.
16. Be it mentioned herein, the question of filing a copy of the said document by the plaintiff could not also arise in view of the fact that the document was not or cannot be in possession of the respondent-plaintiff. Since the respondent-
plaintiff was simply a member of the Society, therefore, the record of completion of the construction of the suit premises can only be proved by the respondent- plaintiff by production of documents which were only in possession with the Society.
E.P.No.01/2014(c) R.M.Sheshadri vs. G.Vasantha Pai, 1969 (1) SCC 27 wherein it has been observed that in an election petition filed on the ground of corrupt practices, the Court has power to summon witnesses if it thinks that the ends of justice require or that the case before it needs that kind of evidence. It has further been observed that the election petition is not an action at law or a suit in equity. It is a special proceeding. The policy of election law seems to be that for the establishment of purity of elections, investigation into all allegations of mal-practices including corrupt practices at elections, should be thoroughly investigated and the Court has ample powers to do so.
8. On the basis of aforesaid provisions of law and the observations made by the Supreme Court in aforesaid authorities, it has been argued by learned counsel for the petitioner that all six witnesses, who are Government Officers/officials be summoned with the documents mentioned against their names in the list. Regardless of the fact whether those documents are included in the list of witnesses or whether their copies have been filed earlier.
9. Learned counsel for the respondent Ajay Arjun Singh on the other hand, has contended that the question involved herein is not summoning of unlisted witnesses by the Court because admittedly, all six witnesses, which the petitioner proposes to summon, are listed witnesses. The point involved in this case is that all witnesses are Government Officers/Officials. They would not appear in the Court to depose unless summoned by the Court. The petitioner wants those witnesses to appear along E.P.No.01/2014 with a large number of official documents. Many of the documents are not necessary for the disposal of this election petition because the facts, those documents tend to prove or disprove are not involved in the issues framed in this election petition. Some of those documents are neither mentioned in the list of witnesses nor in any list of reliance nor in pleadings of the petitioner. Many of those documents are not identified and the petitioner simply wishes to call all documents in the file relating to a particular subject without adequately describing those documents or giving necessary particulars to accurately identify those documents. Thus, by calling a plethora of official documents, some of which are not even properly identified, the petitioner intends to enter into a roving, fishing sort of inquiry and wants to enlarge the scope of controversy, which is not permissible.
10. In support of aforesaid contentions, learned counsel for the respondent has invited attention of the Court to Section 104 of the M.P. Civil Court Rules, 1961, which lays down procedure to be adopted for summoning official documents. Reliance has been placed upon the judgment rendered by this Court in the case of Ram Vishal @ Vishali Kachhawaha Vs. Dwarika Prasad Jaiswal , 2006(2) MPLJ 507 which reads as hereunder
12. Now the second contention may be seen by which petitioner has prayed to the trial Court to send for the record of Municipal Corporation in respect of assessment register. The petitioner has not submitted particulars when the application was filed and whether it was allowed or rejected. No order of the authority was produced before the Court in this regard. The record of Municipal E.P.No.01/2014 Corporation is a public record and usually it will be presumed that there should be no difficulty in getting the certified copy of public record. Apart from this after enactment of The Right to Information Act, 2005, the position has become more liberal. If the petitioner applies for the certified copy of public record and it has been denied there must be some reasons and this reason ought to have been placed on record by filing appropriate record in this regard and needless to say that supported by an affidavit of petitioner. But the petitioner has not produced any record nor submitted any details in respect of his filing of application for supply of certified copy of aforesaid public record or about the reasons of aforesaid rejection of prayer. Apart from this no affidavit in support of application was filed by the petitioner. 13. Rule 104 of the M.P. Civil Court Rules, 1961 specifically provides that procedure envisaged under Order 13, Rule 10 Civil Procedure Code, shall be applicable to other public records and an affidavit setting forth the necessity for production of record should state not merely that the record is material to the suit, but must also show that the applicant cannot, without unreasonable delay or expense, obtain a duly authenticated copy or in what way the production of the original is necessary. Rule 105 of M.P. Civil Court Rules, 1961 also provides that subject to any provision of law to contrary, the originals of public and municipal records should not be called for when duly authenticated and certified copies of the same are admissible in evidence and will serve the purpose for which the records are required. For ready reference, it will be necessary to reproduce the Rules 104 and 105, which reads as under :-
"104. (1) Attention is invited to Rule 10 of Order XIII which states that law as to the production of Court records. The principle laid down in sub-rule (2) of that rule may well be applied to other public records. (2) Affidavits under Order XIII, Rule 10(2), setting forth the necessity for production of records should state not merely that the record is material to the suit, but must also show how the record is material and also that the applicant cannot, without unreasonable delay or expense, obtain a duly authenticated copy or in what way the production of the original is necessary.
105. Subject to any provision of the law to contrary, the originals of public and E.P.No.01/2014 municipal records should not be called for when duly authenticated and certified copies of the same are admissible in evidence and will serve the purpose for which the records are required."
14. In view of aforesaid specific provision under M. P. Civil Courts Rules, 1961, if the Court has rejected the prayer of petitioner for calling the record, no error can be found. However, as the petitioner has been allowed an opportunity to adduce evidence in the matter, the petitioner shall be free to file certified copy aforesaid record within a period of four weeks from today. If such copies are filed by the petitioner within a period of four weeks from today, the trial Court shall receive the aforesaid copies in evidence. In case petitioner fails to get the certified copy, he will be free to approach the trial Court in accordance with Rule 104 of M. P. Civil Court Rules, 1961. If any such application is filed, the trial Court shall be free to reconsider the matter, in accordance with law, without being prejudiced with the rejection of previous application.
11. Learned counsel for the respondent has also placed reliance upon Order 7 Rule 14 which reads as hereunder:
14. Production of document on which plaintiff sues or relies.-- (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.
12. Learned counsel for the respondent has also invited attention of the Court to judgment rendered by the Supreme Court in the case of Kalyan Singh Chouhan vs. C.P. Joshi, AIR 2011 SC 1127, wherein it has been held that a party to the election petition must plead the material facts and substantiate E.P.No.01/2014 its averments by adducing sufficient evidence. The Court cannot travel beyond the pleadings and the issues cannot be framed unless there are pleadings to raise the controversy on a particular fact or law. It is therefore not permissible for the Court to allow the party to lead evidence which is not in the line with the pleadings. Even if such evidence is led, it is to be ignored as the same cannot be taken into consideration. Learned counsel for the respondent has also invited attention of the Court to the judgment rendered by this Court in the case of Anil Tripathi vs.Urmila Tripathi, LAWS (MPH) 2014 (2) 158, wherein this Court has observed that under Order 16 Rule 6 and 7 of the CPC the documents cannot be summoned on mere asking by the party. The party seeking to summon such documents must show cogent and relevant reasons to establish that the said documents are necessary for defence or for lawful adjudication of the matter.
13. On the basis of Anil Tripathi's case (supra), it has been argued that many of the documents which have been summoned do not relate to any specific issue framed in this election petition. Therefore, such documents cannot be allowed to be summoned. As such, it has been prayed that both the applications be dismissed.
14. On going through the record and considering the rival contentions, the Court is of the view that two applications under consideration must be partly allowed to the extent indicated below, for the reasons hereinafter stated:
E.P.No.01/201415. On the basis of the provisions of law relied upon by the parties and the authorities cited at bar, following broad propositions may be culled out. There is no law which enjoins upon the Court in an election petition to summon all official record prayed for a particular party through official witnesses. Even those documents, copies whereof, have not been filed in earlier stages may be summoned, if such documents are necessary for full and final determination the controversy involved in the matter. However, for calling such documents, leave of the Court shall be necessary. The Court has to examine the relevance and admissibility of the documents proposed to be summoned. It is doubtful whether Civil Court Rules with regard to summoning of witnesses and production of evidence would apply stricto sensu to the proceedings in an election petition; however, the broad principles may, in appropriate cases, be borrowed because many such rules are explanatory in nature.
16. The Court has framed 26 issues in this election petition:
(a) The predominant controversy in this election petition is that the respondent/elected candidate had used various kinds of campaign materials like posters, pamphlets, badges, caps, calendars, face mask etc. and has grossly undervalued those articles in order to minimize his election expenses; whereas the actual expenses incurred on aforesaid material have far exceeded the prescribed limit. Issue nos. 1 to 13 broadly relate to aforesaid aspect of the matter.
(b) Issue no.14 relates to expenses incurred on polling day.E.P.No.01/2014
(c) Issue no.15 is on the point of expenses incurred on victory rally.
(d) Issue no.16 relates to expenses incurred in meeting of Mr. Rahul Gandhi, who was star campaigner of Indian National Congress.
(e)Issue no.17 is on the subject of expenses of alleged dummy candidates.
(f) Issue no.18 relates to expenses incurred on public meeting at Kapuri Kothar.
(g) Issue no.19 relates to expenses incurred in hoardings put up by the respondent during the campaign.
(h) Issue no.20 is on the point of appeal for votes made on religious grounds, in Jhadwa Devi temple and
(i) Issue no.21 is in respect of alleged bribing of voters.
15. Now the Court shall proceed to examine each document proposed to be summoned by the petitioner through official witnesses in the light of aforesaid broad principles and the issues framed in the case.
17. Witness No.1 Ms. Swati Meena, IAS, District Election Officer, Sidhi:
The petitioner wants the concerned clerk in the office of District Election Officer, Sidhi, to appear in the Court along with:
(a) All instructions received from Election Commission of India with respect to Assembly Election, 2013, regarding observation/calculation of expenses of contesting candidates, constitution of video surveillance teams, E.P.No.01/2014 procedure for recording of events, preservation of election records etc. In this regard, learned counsel for the petitioner has submitted that witness Ms. Swati Meena may be posted elsewhere and may come directly to the Court from her place of posting; therefore, concerned clerk in the office of District Election Officer, Sidhi is required to be called along with the summoned documents.
Learned counsel for the respondent has opposed the summoning of concerned clerk on the ground that there is no provision in law for aid of the witnesses to appear in the witness box.
However, in the opinion of this Court, the objection is not sustainable because the request is reasonable. Witness Ms. Swati Meena may be posted elsewhere. In these circumstances, the concerned clerk may be asked to produce the summoned documents.
Learned counsel for the petitioner further submits that the aforesaid instructions are in the form of a book which is called ( ¼fuokZ p u O;; vuq o h{k.k ij vuq n s ' kks a dk la a d yu tq y kbZ 2013 Hkkjr fuokZ p u vk;ks x nokjk tkjh½ Since aforesaid instructions are in the form of a book, and it relates to Issue nos.1 to 13 it may be summoned.
18. (b) The next document that is proposed to be summoned is the order dated 02.09.2013, No.726/Election/2013, relating to constitution of video surveillance team.
E.P.No.01/2014The constitution of video surveillance team has not been disputed by any party. There is no issue framed on constitution of video surveillance team; therefore, aforesaid document is not required to be called.
19. (c) The next document that is proposed to be summoned is the order relating to appointment of Returning Officers in Vidhan Sabha Election 2013 at Churahat-76 and Sidhi-77 Constituency.
No challenge has been made to the appointment of aforesaid Returning Officers; therefore, no issue has been framed in that regard. Consequently, the summoning of this document is also not necessary.
20. (d) All orders, note sheets and documents relating to preparation of rate list, constitution of committee for said purpose, reports of committee and action taken on said reports (all registers, note sheets, quotations etc. if any used for preparation of rate list in Assembly Election 2013.
Summoning of aforesaid documents has been opposed by learned counsel for the respondent on the ground that constitution of the committee and rate list has not been disputed by the respondent and no issue has been framed on such subject. Moreover, it has been submitted that is an omnibus request and the documents summoned cannot be identified with reasonable degree of accuracy and certainity.
In the opinion of this Court, it is doubtful whether all documents are relevant or would be required; however, this file has a bearing upon the main matter in controversy and the E.P.No.01/2014 documents may be required for the purpose of refreshing the memory of witnesses. (Please see Order 7 Rule 14(4) of CPC). Therefore, it would be appropriate to call aforesaid file.
21. (e) Expenses register submitted by Shri Ajay Arjun Singh at Assembly Election 2013 and shadow expenses register of Shri Ajay Arjun Singh maintained by Expenses Observer along with folder of evidence and other documents relating to his expenses submitted/forwarded by Expenses Observer.
Learned counsel for the petitioner submits that aforesaid documents are necessary for proving petitioner's case on issue nos. 1 to 13. Certified copies of aforesaid documents have been filed and this set of documents is the most crucial.
In aforesaid circumstances, let aforesaid documents be called.
22. (f) Expense register of:
(i) Ramsiya Kol, Churahat-76 constituency for Assembly Elections 2013
(ii) Ramniwas Saket, Churahat-76 constituency for Assembly Election 2013.
(iii) Expense Register of Kamleshwar Dwivedi Constituency Sidhi-77, Assembly Election 2013.
(iv) Expense Register of Kamleshwar Patel, Sinhawal Constituency-78, Assembly Election 2013.
Aforesaid documents have a bearing upon issue nos.16 & 17 and their copies have also been filed as annexures; therefore, let aforesaid documents be also summoned.
E.P.No.01/201423. (g) Complaint dated 30/12/2013, made by BJP Election Agent of candidate from Churahat-76 (Shri Shardendu Tiwari) and documents relating to any enquiry taken on said complaint, including note sheets.
Learned counsel for the petitioner submits that copy of complaint has been filed as annexure. The action taken upon the same is part of election record. Therefore, the aforesaid document is relevant.
In the circumstances pointed out by learned counsel for the petitioner, let aforesaid document be also summoned.
24. (h) Complaint dated 07/01/2014 by Election Agent of Shri Shardendu Tiwari BJP candidate Churahat 76 along with documents relating to action taken on said complaint.
For the reasons stated in respect of document (g), the document (h), may also be summoned.
25. (i) Letter no.1095/Election/2014, dated 02.08.2014 allegedly issued from office of District Election Officer regarding closure of complaint dated 07.01.2014, with relevant note sheet regarding the action taken.
For the reasons stated in Clause (g) and (h) this document is also allowed to be summoned.
26. (j) The documents granting permission relating to public meeting of Shri Rahul Gandhi on 20.11.2013 at Sanjay Gandhi ground at Sidhi.
Learned counsel for the petitioner submits that a copy of the document has been filed and the document relates to issue no.16.
E.P.No.01/2014In aforesaid circumstances, this document is also directed to be summoned.
27. Witness no.2 Roshanlal Rawat the Then R.I. and Incharge of Video Surveillance team Sidhi along with document .
(a) video recording/electronic record/CD relating to public meeting of Shri Rahul Gandhi in Sanjay Gandhi Ground at Sidhi (complete recording of said event) Learned counsel for the petitioner submits that aforesaid CD has already been filed and as per the interlocutory order of the Supreme Court dated 8 th of August, 2017, the High Court is to receive the compact discs and the certificates under section 65B(4) of the Evidence Act. The admissibility of such material shall be subject to outcome of the petition for Special Leave to Appeal No.5123/2017.
However, it may be noted that in view of section 65B(1) of the Evidence Act, the computer output shall also be deemed to be document, if the conditions mentioned in that section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or any fact stated therein of which direct evidence would be admissible. Thus, where the computer output (in this case the CD) produced in the Court and the certificate under section 65B(4) is available, it would be unnecessary to call for the original CD from the Election E.P.No.01/2014 Office. Therefore, the prayer for summoning original CD is rejected.
28. (b) Cu sheet prepared as per the instruction of election commission for aforesaid video recording.
For the reasons given in respect of document (a) above, the prayer for calling Cu sheet is also rejected.
29. (c) Document/instruction/regulation/note-sheet regarding preparation/viewing of electronic records.
For the reasons recorded under document (a) calling for this document is also not necessary. Therefore, the prayer is rejected.
30. Witness No.3 Sunil Kumar Dwivedi the then R.I. and In -charge of Video Surveillance team, Churahat-76:
(a) Video recording/electronic record/CD related to filing of nomination paper by Ajay Arjun Singh recorded on 05.11.2013 and his meeting at Jhadva Devi Mandir.
For the reasons recorded under document 2(a) calling for this document is not necessary. Therefore, the prayer is rejected.
31. (b) Video recording/electronic record/CD related to meeting of Ajay Arjun Singh at Kapuri Kothar.
For the reasons recorded under document 2(a) summoning of this document is also not necessary. Therefore, the prayer is rejected.
32. (c) Cu sheet of electronic evidence/video recordings mentioned above.
E.P.No.01/2014For the reasons recorded under document 2(a) summoning this document is also not necessary. Therefore, the prayer is rejected.
33. Witness No.4 Prabhashankar Tripathi Deputy Collector:
Preservation of CD and electronic record in the office of District Election Officer, preparation of certified copy of CD on demand of the petitioner and 65-B certificate issued on his request, all documents note sheets relating to said proceeding.
For the reasons recorded under document 2(a) calling for summoning this document is also not necessary. Therefore, the prayer is rejected.
34. Witness No.5 Manoj Malviya the then Returning Officer at Churahat 76 with concerned clerk of office of Returning Officer.
(a) Record relating to deputation of video surveillance team at Churahat and record relating to preservation of electronic records by video surveillance team.
For the reasons recorded under document 2(a) calling for summoning this document is not necessary. Therefore, the prayer is rejected.
35. (b) Record relating to all permission, Rally, loud speaker, Aam Sabha, Vehicle used by Shri Ajay Arjun Singh for 2013 Assembly Election.
E.P.No.01/2014These documents are not specific and it is not made clear as to which issue they relate to; therefore, permission to summon aforesaid record is also rejected.
36. (c) List/permission/for appointment of Polling Agents, counting Agents, by respondent Ajay Arjun Singh.
This list may have bearing upon issue no.14; therefore, it is allowed be to be summoned.
37. Witness No.6 Vivek Dubey Documents relating to preparation of standard rate list, minutes of meeting and note sheet of committee constituted for said purpose.
Aforesaid documents are covered by 1(d); therefore, no separate order is necessary.
38. On the basis of foregoing discussion, following witnesses are directed to be summoned along with documents mentioned against their names.
(1) Ms. Swati Meena- The concerned clerk may be directed to produce following documents:
(a) All instructions received from Election Commission of India with respect to Assembly Election, 2013, regarding observation/calculation of expenses of contesting candidates, constitution of video surveillance teams, procedure for recording of events, preservation of election records etc.
(d) All orders, note sheets and documents relating to preparation of rate list, constitution of committee for said purpose, reports of committee and action taken on said E.P.No.01/2014 reports (all registers, note sheets, quotations etc. if any used for preparation of rate list in Assembly Election 2013.
(e) Expenses register submitted by Shri Ajay Arjun Singh at Assembly Election 2013 and shadow expenses register of Shri Ajay Arjun Singh maintained by Expenses Observer along with folder of evidence and other documents relating to his expenses submitted/forwarded by Expenses Observer.
(f) Expense register of: (i) Ramsiya Kol, Churahat-76 constituency for Assembly Elections 2013 (ii) Ramniwas Saket, Churahat-76 constituency for Assembly Election 2013. (iii) Expense Register of Kamleshwar Dwivedi
Constituency Sidhi-77, Assembly Election 2013.
(iv) Expense Register of Kamleshwar Patel, Sinhawal Constituency-78, Assembly Election 2013.
(g) Complaint dated 30/12/2013, made by BJP Election Agent of candidate from Churahat-76 (Shri Shardendu Tiwari) and documents relating to any enquiry taken on said complaint, including note sheets.
(h) Complaint dated 07/01/2014 by Election Agent of Shri Shardendu Tiwari BJP candidate Churahat 76 along with documents relating to action taken on said complaint.
(i) Letter no.1095/Election/2014, dated 02.08.2014 allegedly issued from office of District Election Officer regarding closure of complaint dated 07.01.2014, with relevant note sheet regarding the action taken. and E.P.No.01/2014
(j) The documents granting permission relating to public meeting of Shri Rahul Gandhi on 20.11.2013 at Sanjay Gandhi ground at Sidhi.
Witness No. 5 Manoj Malviya:
(c) List/permission/for appointment of Polling Agents, counting Agents, by respondent Ajay Arjun Singh.
39. It is hereby made clear that admissibility of a particular document shall be examined when it is actually tendered in evidence.
40. I.A.Nos.15616/2016 & 9339/2017 stand disposed of accordingly.
(C.V. Sirpurkar) Judge sh/b E.P.No.01/2014 E.P.No.01/2014