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HIGH COURT OF DELHI
EL.PET. 7/2020
Date of Decision: 18.09.2023 IN THE MATTER OF:
DR. S.C. VATS ..... Petitioner
Through: Mr. P.D. Gupta, Senior Advocate with Mr Sahil Ahuja and Mr
Abhishek Gupta, Advocates.
Through: Mr Sudhir Nandrajog, Senior Advocate with Mr Bhavook Chauhan, Mr Syed Atif, Mr Zillur Rahman and
Mr Rajat Gautam, Advocates.
JUDGMENT
1. By way of present chamber appeal filed under Chapter II, Rule 5 of Delhi High Court (Original Side) Rules, 1967 read with Section 151 CPC, the applicant/respondent No.1 (hereafter, ‘the applicant’) has assailed the order dated 10.05.2023 passed by the Joint Registrar (hereafter, the ‘impugned order’).
2. Briefly, in the captioned election petition, the petitioner has challenged the election of applicant as MLA from Assembly Constituency- 15, Shakur Basti, New Delhi. The impugned order came to be passed in the context of cross-examination of petitioner’s witness namely Prashant Tanwar, Assistant Electoral Registration Officer who had been summoned to produce and prove: i) petitioner’s affidavit submitted alongwith his nomination paper on 21.01.2020 in respect of election held on 08.02.2020 of the aforesaid Assembly Constituency, ii) complaints lodged by petitioner’s election agent dated 02.02.2020 and 03.02.2020, iii) complaint lodged by petitioner’s election agent dated 01.02.2020 and iv) the affidavit filed by applicant of the election expenditure.
3. The controversy arose when the aforesaid petitioner witness appeared and was sought to be cross-examined by the applicant for matters beyond the summoned record. Vide impugned order, the learned Joint Registrar sustained the objections raised by the petitioner. The respondent being aggrieved by the aforesaid order has preferred the present chamber appeal.
4. The short issue involved in the present case is whether a formal witness summoned under Part B as per the Delhi High Court (Original Side) Rules, 1967 can be subject to cross-examination on matters beyond the summoned record.
5. Mr. Nandrajog, learned Senior Counsel appearing for the applicant contended that the factum of petitioner seeking to summon a person from the office of State Election Commission to produce and prove documents, the person can no longer be characterised only as a formal witness who could not be cross-examined. In such eventuality, Section 139 of the Evidence Act would not be applicable. In support of his submissions, learned Senior Counsel placed reliance on the decision in Sharons Link Logistics v. UNI Trade Logistics[1].
6. Mr. Gupta, learned Senior Counsel appearing for the petitioner, while supporting the impugned order, submitted that the witness in question was sought to be summoned through I.A. Nos. 8249-50/2023 which came to be allowed on 28.04.2023, after recording no objection from the respondents. It is further submitted that the aforesaid witness was summoned only to produce the said documents and not to give any oral evidence. The applicant however, had sought to cross-examine the said witness in relation to the defence raised by him in the case. Pertinently, for the said purpose, the applicant had also cited one Ashwani Gupta as a witness under Part C. In support of the submissions, reliance is placed on the decision in Eknath Prabhakar Morajkar & Anr. v. Bhanudas Prabhar Morajkar & Ors.[2]
7. Having heard the learned counsels for the parties, this Court finds no merit in the chamber appeal in the facts of the present case. Chapter XI of Delhi High Court (Original Side) Rules, 1967 deals with Evidence and Witnesses. Rule 3 provides for the format in which the list of witnesses is to be filed. The said Rule requires the party to classify a witness in the following manner:- “Part-A Witnesses required to be examined on Commission and Video conferencing. Part-B Witnesses required to produce documents only and who are not required to give oral evidence. Part-C Witnesses required to give oral evidence and also to produce documents, including expert witnesses.
2021 SCC OnLine Bom 3613 Part-D Witnesses required to give oral evidence but from whom no documents are required to be proved.”
8. The petitioner had summoned the official in question under Part B i.e., a witness required to produce documents only and not to give any oral evidence. Further, in the examination-in-chief, following statement of the official came to be recorded:- “PW-6 Statement of Mr. Prashant Tanwar, posted as Assistant Electoral Registration Officer, office at Assembly Constituency-15, Shakur Basti, New Delhi. On S.A. I have brought the summoned record as handed over by the department to produce in the court. The affidavit of Mr. S.C. Vats is Ex.PW6/A (OSR), complaint dated 1.2.2020 is Ex.PW6/B (OSR), complaint dated 2.2.2020 is Ex.PW6/C (OSR) and complaint dated 03.02.2020 is Ex.PW6/D (OSR). The copies of page nos.[1] to 42, 52 to 59, 102 to 104, 156 to 158 and last page of expenditure register of Sh. Satyender Jain is Ex.PW6/E (OSR).”
9. The official was cross-examined with respect to official records/documents brought by him in relation to which he was summoned. Additionally, learned counsel for the applicant sought to confront the witness with his own set of documents and in this context, the record of the proceedings reads as under:- “xxx At this stage, Ld. Counsel for respondent no.1 has requested that he wishes to show copies of documents i.e. (i) show cause notice dated 02.02.2020 at page 130 of the documents filed by respondent no.1, (ii) reply dated 3.2.2020 at page 131 of the documents filed by respondent no.1, (iii) show cause notice dated 3.2.2020 at page 113 of the documents filed by respondent no.1, (iv) reply dated 4.2.2020 at page 114 of the documents filed by respondent no.1, (v) show cause notice dated 3.2.2020 at page 17 of the additional documents filed by the respondent no.2 and (vi) reply dated 4.2.2020 at page 20 of the additional documents filed by the respondent no.2, to prove the same by comparing them with the documents as available in the above referred files produced by the witness. (Objected to by Ld. Counsel for petitioner) (The objection of Ld. Counsel for petitioner has been decided as reflected in the order sheet and Ld. Counsel for respondent no.1 has not been permitted to ask the above said questions/put documents to the witness.) xxx”
10. The issue stands further answered by a plain reading of Section 139 of the Evidence Act which reads as under:- “139. Cross-examination of person called to produce a document: A person summoned to produce a document does not become witness by the mere fact that he produces it, and cannot be cross examined unless and until he is called as a witness.”
11. From a combined reading of the aforesaid section with Rule 3, it is evident that merely because the petitioner in his list of witnesses had described the said official as a witness to produce and prove documents, he cannot be termed as a witness. As noted above, the official in his deposition only produced the documents for which he was summoned. Pertinently, no evidence by way of affidavit of the said official was filed under Order XVIII Rule 4 CPC.
12. The question of applicability of Section 139 of the Evidence Act also came before the Supreme Court in Vishwa Vijay Bharati v. Fakhrul Hassan & Ors.3, in relation to a person who was summoned for producing Power of Attorney. While observing that a person summoned to produce a document, couldn’t be cross-examined under Section 139 of the Evidence Act as the said person doesn’t become a witness, the court observed:-
13. It is also pertinent to note that the applicant himself had also summoned an official from State Election Commission albeit with respect to different documents. The documents in relation to which the petitioner’s witness was sought to be cross-examined by the applicant are anyway sought to be produced and proved by another witness cited by him namely his election agent-Ashwani Gupta and as such no prejudice would be caused to the applicant.
14. The reliance placed on the decision in Sharon (Supra) is of no gain to the applicant as in the said case the question which was sought to be put to the witness was in relation to documents which he had brought. Even in the said decision, this Court observed that if a witness is purely summoned for the purpose of placing on record documents summoned by a party, the right of other party is circumscribed and no question of whatsoever nature can be put across to the said witness except those limited to purely formal in nature.
15. In view of the above, the chamber appeal is dismissed. I.A. 17184/2023 In view of the order passed in O.A. 59/2023, the application is disposed of with the directions that the petition be listed before Joint EL.PET. 7/2020 List before Joint Registrar on 05.10.2023.
JUDGE SEPTEMBER 18, 2023