Case Analysis: Kamal Narain Sharma vs. Shri Pandit Dwarka Prasad Mishra and Others
Case Details
Case name: Kamal Narain Sharma vs. Shri Pandit Dwarka Prasad Mishra and Others
Court: Supreme Court of India
Judges: M. Hidayatullah, P.B. Gajendragadkar, K.N. Wanchoo, J.C. Shah, S.M. Sikri
Date of decision: 17 August 1965
Citation / citations: 1966 AIR 436, 1966 SCR (1) 478
Case number / petition number: Civil Appeal No. 437 of 1965; Misc. Petition No. 90 of 1964
Neutral citation: 1966 SCR (1) 478
Proceeding type: Civil Appeal
Source court or forum: Madhya Pradesh High Court
Source Judgment: Read judgment
Factual and Procedural Background
The election for the Kasdol Legislative Assembly constituency was held on 4 May 1963. The first respondent, Shri Pandit Dwarka Prasad Mishra, was declared elected. The appellant, Kamal Narain Sharma, filed an election petition alleging corrupt practices, false statements and false accounts. The petition was supported by an affidavit sworn before K. S. Moghe, who was described as the Officer for Administering Oaths on Affidavits and Clerk of Court in the District Court, Jabalpur.
The first respondent objected that the affidavit had not been sworn before a Magistrate of the First Class, a Notary or a Commissioner of Oaths as required by Rule 94‑A of the Conduct of Election Rules, 1961, and moved that the petition be dismissed. The Election Tribunal, on 31 October 1963, accepted the objection but permitted the filing of a fresh affidavit, which was taken on record. On 24 February 1964 the Tribunal held that the fresh affidavit cured the defect and allowed the petition to proceed.
The respondent then filed a petition under Articles 226 and 227 of the Constitution in the Madhya Pradesh High Court, seeking to quash both Tribunal orders. The High Court, by an order dated 15 April 1964, quashed the Tribunal’s orders and directed the Tribunal to continue the proceedings in accordance with its own order. The appellant appealed the High Court’s decision by filing Civil Appeal No. 437 of 1965 before the Supreme Court of India.
The affidavit in question bore the endorsement of K. S. Moghe, who had been appointed an ex‑officio Commissioner for administering oaths under section 139(c) of the Code of Civil Procedure by the District Judge of Jabalpur, pursuant to a Government of Madhya Pradesh notification dated 16 February 1959. The appointment pre‑dated the amendment of that notification in May 1960.
Issues, Contentions and Controversy
The Court was called upon to determine (i) whether the affidavit filed in support of the election petition was invalid because it had not been sworn before a Magistrate of the First Class, a Notary or a Commissioner of Oaths as prescribed by Rule 94‑A, and (ii) whether such alleged non‑compliance rendered the petition liable to be dismissed.
The appellant contended that the affidavit was defective because Moghe, being a Clerk of Court, was not a “Commissioner of Oaths” within the meaning of Rule 94‑A and therefore the petition should be dismissed or the allegations struck out. The respondent argued that only a Magistrate of the First Class, a Notary or a Commissioner appointed under the Indian Oaths Act could satisfy the rule, and that a Commissioner appointed under section 139(c) of the Code of Civil Procedure could not administer an oath for a petition governed by the Representation of the People Act. The respondent further maintained that the rule was mandatory and that the failure to comply required dismissal of the petition.
The controversy therefore hinged on the interpretation of the term “Commissioner of Oaths” in Rule 94‑A and on whether the requirement was mandatory or directory.
Statutory Framework and Legal Principles
Section 83 of the Representation of the People Act, 1951 requires an election petition alleging corrupt practices to be accompanied by an affidavit in the prescribed form.
Rule 94‑A of the Conduct of Election Rules, 1961 provides that the affidavit under the proviso to Section 83 must be sworn before a Magistrate of the First Class, a Notary or a Commissioner of Oaths and must be in Form 25.
Section 139(c) of the Code of Civil Procedure, 1908 empowers a District Judge to appoint officers, including the Clerk of Court, as Commissioners for administering oaths on affidavits.
Section 4 of the Indian Oaths Act authorises all courts and persons having by law or consent of parties the authority to receive evidence to administer oaths and affirmations.
Section 539 of the Code of Criminal Procedure lists the courts and persons before whom affidavits may be sworn, including Commissioners appointed by a court.
The legal principle derived from these provisions is that “Commissioner of Oaths” is to be understood broadly to include any person duly appointed as such under any applicable law, unless the statute expressly limits the category.
Court’s Reasoning and Application of Law
The Court examined whether the officer before whom the affidavit was sworn qualified as a “Commissioner of Oaths” within the meaning of Rule 94‑A. It observed that Rule 94‑A did not specify a particular source of commission and therefore embraced any duly appointed Commissioner of Oaths. The Court noted that K. S. Moghe had been appointed an ex‑officio Commissioner for administering oaths under section 139(c) of the Code of Civil Procedure, a statutory authority that expressly permitted a District Judge to make such appointments.
Relying on Section 4 of the Indian Oaths Act and Section 539 of the Code of Criminal Procedure, the Court held that the statutory scheme allowed a variety of officers to administer oaths, and that the purpose of Rule 94‑A was to ensure that an affidavit could be the basis for perjury proceedings if the allegations proved false. The Court therefore concluded that the affidavit sworn before Moghe satisfied the requirement of Rule 94‑A.
The Court rejected the respondent’s contention that the rule was mandatory in a manner that would invalidate the affidavit, finding that the language of the rule was fulfilled by the appointment of Moghe as a Commissioner of Oaths. Consequently, the Court held that the fresh affidavit filed after the Tribunal’s order was unnecessary.
Final Relief and Conclusion
The Supreme Court allowed the appeal, holding that the original affidavit sworn before the Clerk of Court was valid under Rule 94‑A and Section 83 of the Representation of the People Act. It remitted the matter to the Election Tribunal for determination of the merits of the election petition. No order as to costs was made.