Matching Fragments
Sd/- Sd/-
Asst. Returning Officer Returning Officer
6. 101 Jalna Legislative Assembly
101 Jalna Legislative Assembly
Constituency/Tahsildar Constituency/Tahsildar
Jalna Jalna”
Transcripts of the contents of these
CDs/VCDs were prepared by the High Court itself. Issue nos.6 and 7 as
framed by the High Court (and its answers to these issues) are important,
and are set out in the impugned judgment dated 24.11.2017, and extracted
hereinbelow:
5
7. Whether the petitioner proves Affirmative. (A, B forms
that the respondent /Returned were presented after
candidate submitted original 3.00 p.m. of 27.9.2014)”
forms A and B along with
nomination paper only on
27/09/2014 after 3.00 p.m. and
along with nomination paper at
Sr. No. 44 ?
7. In answering issues 6 and 7, the High Court recorded:
“60. Many applications were given by the petitioner of
Election Petition No. 6/2014 to get the copies of electronic
record in respect of aforesaid incidents with certificate as
provided in section 65-B of the Evidence Act. The
correspondence made with them show that even after
leaving of the office by Smt. Mutha, the Government
machinery, incharge of the record, intentionally avoided to
give certificate as mentioned in section 65-B of the
Evidence Act. After production of the record in the Court in
this regard, this Court had allowed to Election Commission
by order to give copies of such record to applicants, but
after that also the authority avoided to give copies by
giving lame excuses. It needs to be kept in mind that the
RC is from political party which has alliance with ruling
party, BJP, not only in the State, but also at the center. It is
unfortunate that the machinery which is expected to be fair
did not act fairly in the present matter. The circumstances
of the present matter show that the aforesaid two officers
tried to cover up their mischief. However the material gives
only one inference that nomination forms Nos. 43 and 44
with A, B forms were presented before the RO by RC after
3.00 p.m. of 27.9.2014 and they were not handed over
prior to 3.00 p.m. In view of objection of the learned
counsels of the RC to using the information contained in
aforesaid VCDs, marked as Article A1 to A6, this Court
had made order on 11.7.2017 that the objections will be
considered in the judgment itself. This VCDs are already
exhibited by this Court as Exhs. 70 to 75. Thus, if the
contents of the aforesaid VCDs can be used in the
evidence, then the petitioners are bound to succeed in the
present matters.”
Provided that the judgment must be based upon facts
declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any
Judge to compel any witness to answer any question or to
produce any document which such witness would be
entitled to refuse to answer or produce under sections 121
to 131, both inclusive, if the question were asked or the
document were called for by the adverse party; nor shall
the Judge ask any question which it would be improper for
any other person to ask under section 148 or 149; nor
shall he dispense with primary evidence of any document,
except in the cases hereinbefore excepted.
(2) Any person required under this section merely to
produce a document or other thing shall be deemed to
have complied with the requisition if he causes such
document or thing to be produced instead of attending
personally to produce the same.
(3) Nothing in this section shall be deemed— (a) to affect
sections 123 and 124 of the Indian Evidence Act, 1872 (1
of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of
1891), or (b) to apply to a letter, postcard, telegram or
other document or any parcel or thing in the custody of the
postal or telegraph authority.”
“349. Imprisonment or committal of person refusing to
answer or produce document.—If any witness or person
called to produce a document or thing before a Criminal
Court refuses to answer such questions as are put to him
or to produce any document or thing in his possession or
power which the Court requires him to produce, and does
not, after a reasonable opportunity has been given to him
so to do, offer any reasonable excuse for such refusal,
such Court may, for reasons to be recorded in writing,
sentence him to simple imprisonment, or by warrant under
the hand of the Presiding Magistrate or Judge commit him
to the custody of an officer of the Court for any term not
exceeding seven days, unless in the meantime, such
person consents to be examined and to answer, or to
produce the document or thing and in the event of his
persisting in his refusal, he may be dealt with according to
the provisions of section 345 or section 346.”
