ORDER
W. Broome, J.
1. The petitioner in this election petition has applied under Order XI Rule 1 and Order XI Rule 12 of the Civil Procedure Code for leave to deliver interrogatories in writing for the examination of respondent No. 1 and for a direction to respondent No. 1 to make discovery on oath of the documents which are or have been in her possession or power relating to the questions arising in the petition; but it is contended on behalf of the respondent that the provisions of Order XI Civil Procedure Code cannot be applied to election petitions. The arguments advanced on both sides have ranged over a wide field of both English and Indian law, but I shall endeavour to deal with them as succinctly as possible.
2. The first point on which stress has been laid by learned counsel for the contesting respondent is that discovery as envisaged by Order XI, Civil Procedure Code has never been permitted in the trial of election petitions in England. After jurisdiction was conferred by the Parliamentary Elections Act, 1868, on the Court of Common pleas to try such petitions, the court continued to follow the principles, practice and rules on which committees of the House of Commons had previously acted in dealing with election petitions; and as pointed out in Wells v. Wren, (1880) 5 CPD 546 'it is admitted that the exhibition of interrogatories to the sitting member by an election committee was a thing unheard of.'
3. When elections were introduced in India, however, there was a radical departure from this principle. Section 5 of the Indian Elections Offences and Inquiries Act, 1920 provided that:--
'5. Commissioners appointed to hold an inquiry shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters:--
(a) discovery and inspection,
(b) enforcing the attendance of witnesses, and requiring the deposit of their expenses.
(c) compelling the production of documents,
(d) examining witnesses on oath,
(e) granting adjournments,
(f) reception of evidence taken on affidavit, and
(g) issuing commissions for the examination of witnesses.
and may summon and examine suo motu any person whose evidence appears to them to be material; and shall be deemed to be a Civil Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898.' The procedure of discovery was thus specifically made applicable to the trial of election petitions in India. And when the Representation of the People Act, 1951 was passed (repealing the earlier Act of 1920) the provisions of Section 5 of the earlier Act were reproduced as Section 92, the only difference being that the powers enumerated therein were to be exercised by an election tribunal instead of by commissioners. The procedure of discovery thus remained specifically enforceable in election petitions in this country even after 1951.
4. Apart from Section 92, the Representation of the People Act, 1951 contained another section dealing with procedural powers viz. Section 90 (2), which laid down that every election petition should be tried by the Tribunal 'as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits,' subject to the provisions of the Act and any rules made thereunder. The two Sections 90 (2) and 92 continued side by side until 1966, when an amending Act (No. 47 of 1966) was passed, introducing a major change in procedure by entrusting the trial of election petitions to the High Court. As a result of this amending Act both Section 90 (2) and Section 92 disappeared and were replaced by the present Section 87, the relevant portion of which reads as follows:--
'87 (1). Procedure before the High Court:-- 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 to the trial of suits.'
5. Learned counsel for the respondent contends that when the Legislature replaced Sections 90 (2) and 92 with Section 87, which contains no specific provision for discovery, it must be held to have deliberately abolished the procedure of discovery in the trial of election petitions. But I find it difficult to accept this proposition. In the first place there is not the slightest indication either in the preamble to the amending Act or in the Statement of Objects and Reasons and the notes on the Bill published in the Gazette of India Extraordinary of 29-8-1966 that any such drastic curtailment of powers was contemplated at that time. The Statement of Objects and Reasons shows that the purpose of the amending Act was to give effect to certain recommendations of the Election Commission, including '(X) abolition of Election Tribunals and trial of election petitions by High Court.' No mention is made therein of any abolition of the procedure of discovery, though one would surely have expected to find this mentioned, if there had been any such proposal; nor has learned counsel for the respondent been able to point out any recommendation of the Election Commission on this subject. And with regard to the crucial Section 41 of the amending Act, which substituted the new Sections 86 and 87 for the old Sections 86 to 92, the only remark made in the Notes published in the Gazette is:
'Clauses 37 to 45:-- One of the principal recommendations of the Election Commission relates to the abolition of Election Tribunals and the trial of election petitions by the High Courts. The changes in the 1951 Act to give effect to these recommendations are contained in Clauses 37 to 45 of the Bill.' In the face of this material the theory of deliberate curtailment of powers is difficult to sustain.
6. It is further to be noted that Section 92 of the 1951 Act is not confined to the power of directing discovery. It enumerates a number of other powers, such as the power of examining witnesses on oath and the power of granting adjournments. And it surely cannot be contended that with the dropping of Section 92 those powers also have been taken away. A more reasonable view would seem to be that the Legislature dropped Section 92 and contended itself with reproducing Section 90 (2) in the form of the new Section 87 because it felt that Section 92 was redundant- the specific powers enumerated therein being included in the general powers conferred by the other section.
7. Learned counsel for the respondent has advanced various arguments with a view to showing that Section 90 (2) was narrower in its scope than Section 92 and that consequently the powers specifically listed under Section 92 could not continue to be exercised under Section 90 (2), or rather under the corresponding new Section 87(1), when Section 92 was dropped. One of the contentions was that since Section 90 (2) made the provisions of the Civil Procedure Code applicable only when the election petition was being tried, it could not affect the procedure of the earlier stages of the petition before the stage of actual trial, which according to learned counsel for the respondent would begin only when the evidence of witnesses was recorded. It was urged therefore that Order XI Civil Procedure Code, which obviously relates to a preliminary stage, could not be invoked on the basis of Section 90 (2) of the Act. But this argument is clearly untenable in view of the clear declaration of the Supreme Court in Harish Chandra v. Triloki Singh, (AIR 1957 SC 444) that in Chapter III of the Act, which deals with the trial of election petitions, the word 'trial' has been used in the wider sense, meaning the entire proceedings from the time when the petition is transferred to the Tribunal or Court up to the pronouncement of the final order.
8. The next argument in this connection is that Section 90 (2) refers only to procedure and not to powers and that therefore the powers conferred by Section 92 could not possibly be exercised under Section 90 (2). But this contention too has been repelled by the Supreme Court in Harish Chandra's case, AIR 1957 SC 444 (supra) in the following words:
'(3) It is then argued that Section 92 confers powers on the Tribunal in respect of certain matters, while Section 90 (2) applies the Civil Procedure Code in respect of matters relating to procedure, that there is a distinction between power and procedure, and that the granting of amendment being a power and not a matter of procedure, it can be claimed only under Section 92 and not under Section 90 (2). We do not see any antithesis between 'procedure' in Section 90 (2) and 'powers' under Section 92. When the respondent applied to the Tribunal for amendment, he took a procedural step, and that, he was clearly entitled to do under Section 90 (2). The question of power arises only with reference to the order to be passed on the petition by the Tribunal. Is it to be held that the presentation of a petition is competent, but the passing of any order thereon is not We are of opinion that there is no substance in this contention either.' An attempt has been made to get round this clear and unambiguous pronouncement by citing a passage from a subsequent decision of the Supreme Court, given in Inamati Mallapa Basappa v. Desai Basavaraj Ayyappa (AIR 1958 SC 698), in which a distinction seems to have been drawn between powers and procedure. But a Full Bench of this Court has considered this apparent conflict of rulings in Duryodhan v Sitaram, (AIR 1970 All 1 (FB)) and has made the following observations: 'The case of Harish Chandra was decided by a four Judge Bench of the Supreme Court (Bhagwati, Venkatarama Ayyar, Sinha and S.K. Das. JJ). The case of Inamati Mallappa, relied on by the respondent, was decided by a three Judge Bench of the Supreme Court (Bhagwati, Kapur and Sarkar, JJ.) Bhagwati, J. was a party to both the decisions. If his Lordship was intending to lay down a rule contrary to Harish Chandra's case, he would have certainly referred to it and dealt with it. Then, a decision of a three Judge cannot be construed as overruling the express opinion of a four Judge decision of the same Court. For all these reasons, the observations of Bhagwati J. in paragraph 17 of the judgment in Inamati Mallappa's case ought not to be construed to mean that Sections 90 (1) and 92 are mutually exclusive so that the matters referred to in Section 92 are outside the purview of Section 90. In my opinion, the matters mentioned in Section 92 appertain to the procedure for trial, and are also attracted by virtue of Section 90 (1). They were separately stated in Section 92 to make them operate in spite of any provision to the contrary in the Act or the Rules, and not with a view to curtail the amplitude of Section 90 (1).'
I am satisfied therefore that there is no force in the contention that Section 90 (2) is confined to 'procedure' and cannot confer powers such as those enumerated in Section 92.
9. Shifting his ground in the light of the above-quoted decisions, learned counsel for the respondent has gone on to argue that even if Section 90 (2) confers powers, they are not of the same kind as those conferred by Section 92. He contends that the powers that can be derived from Section 90 (2) are only those which are directly connected with the actual trial or hearing of the petition, in contradistinction to Section 92, which, he maintains, deals with separate ancillary powers. But this argument is clearly untenable, for, as already pointed out. Section 92 mentions the power of examining witnesses on oath and the power of granting adjournments, both of which are obviously powers exercisable in the actual trial or hearing of the petition.
10. The relative scope of Sections 90 (2) and 92 and the reason why certain powers were specifically enumerated in Section 92 have been explained by the Supreme Court in Harish Chandra's case. AIR 1957 SC 444 (supra), as follows:
'(2) The second contention urged on behalf of the appellants is that if the provisions of the Civil Procedure Code are held to be applicable in their entirety to the trial of the election petitions, then there was no need to provide under Section 92 that the Tribunal was to have the powers of courts under the Code of Civil Procedure in respect of the matters mentioned therein, as those powers would pass to it under Section 90 (2). But this argument overlooks that the scope of Section 90 (2) is in a material particular, different from that of Section 92. While under Section 90 (2) the provisions of the Civil Procedure Code are applicable only subject to the provisions of the Act and the rules made thereunder, there is no such limitation as regards the powers conferred by Section 92. It was obviously the intention of the Legislature to put the powers of the Tribunal in respect of the matters mentioned in Section 92 as distinguished from the other provisions of the Code on a higher pedestal, and as observed in Sitaram v. Yograj Singh, AIR 1953 Bom 293, they are the irreducible minimum which the Tribunal is to possess.'
After this clear and authoritative analysis it is no longer possible to argue that Section 92 was framed with the special object of conferring on the Election Tribunal powers that could not be derived from the more general provisions of Section 90 (2); nor can it be said that with the disappearance of Section 92 the powers enumerated therein can no longer be exercised. It seems reasonable to infer that Section. 92 was dropped from the Act in 1966, because with the transfer of jurisdiction to the High Court it was no longer felt necessary to safeguard the 'irreducible minimum' of powers and the section had thus become redundant, the powers mentioned therein being adequately covered by Section 90 (2), which was being reproduced in the form of the new Section 87.
11. The next line of argument is that the provisions of Order XI of the Civil Procedure Code are incompatible with the provisions of the Representation of the People Act and hence cannot be part of the procedure authorised by Section 87 of the Act, because that section makes election petitions triable under the Civil Procedure Code 'subject to the provisions of the Act and of any rules made, thereunder.' A number of cases have been cited in which various provisions of the Civil P. C. have been held inapplicable to election petitions on account of this kind of repugnance. For example in (AIR 1958 SC 698) Order XXIII, Rule 1, which permits a plaintiff to abandon part of his claim, was held to be inconsistent with Section 116 of the Act, which allows an election petition to be continued even after the death or withdrawal of the petitioner; in Jagjit Singh v. Giani Kartar Singh, (AIR 1966 SC 773), Order VIII, Rule 5, which lays down that every allegation of fact in the plaint shall be taken to be admitted unless denied in the written statement was found to be inapplicable to election petitions, because the onus of proving the essential ingredients of a corrupt practice under Section 123(4) of the Act was on the petitioner; in Shyam Sunder v. Satya Ketu, (AIR 1967 SC 923) the requirement of Order XLI, Rule 1 that an appeal must be accompanied by a copy of the decree appealed against was held not to apply to election petitions, because the scheme of the Act showed that no decree need be prepared by the election tribunal; in Udal v. Lal Bahadur, (1960) 21 Ele LR 180 (All) a Bench of this Court held that Order X, Rule 2 is not to be used in the trial of election petitions, because the particulars or a corrupt practice that had been alleged in the petition can be amended or amplified only in the manner prescribed in Section 90 (5) of the Act corresponding to the present Section 86(5); and in Rameshwar Dayal v. Sub-Divisional Officer, Chatampur, Dist. Kanpur, (1961 RD (HC) 195) = (AIR 1963 All 518) a Bench of this Court found that the Representation of the People Act did not contemplate the issue of interim injunctions by the election tribunal under Order XXXIX, Rules 1 and 2.
12. None of these decisions, however, affords any guidance for answering the question that arises in the present case viz., whether a Court or Tribunal trying an election petition has the power to pass orders for discovery under Order XI. Learned counsel for the respondent has been unable to point to any particular section of the Act or any rule framed thereunder that might reasonably be said to negative the possibility or resorting to the procedure prescribed by Order XI. Reference was made to Sub-sections (6) and (7) of Section 86, which show that election petitions should be tried as expeditiously as possible; and it was suggested that the discovery procedure runs counter to this because it is protracted. But actually the opposite is the case; discovery is likely to shorten the time required in the examination and cross-examination of witnesses and will thus tend to expedite disposal. Reliance has also been placed on Section 83(1), which says that the election petition should contain full particulars; and it is urged that the petitioner should not be allowed to supplement these particulars by resorting to discovery. But this argument is misconceived, for discovery has nothing to do with supplementing the petitioner's pleadings; its object is to elicit admissions from, the respondent that may obviate the necessity for producing lengthy evidence when the time comes to examine witnesses. I am satisfied that neither Section 86 nor Section 83 (which are the only sections relied upon in this connexion) contains anything that would militate against the use of the discovery procedure in an election petition.
13. Learned counsel for the respondent has gone on to argue that even if discovery is not barred by any specific provision of the Act or Rules, it offends against the scheme of the Act and the spirit of the law governing election petitions. Firstly it is urged that the procedure of discovery is inappropriate in an election petition, because this is not a private suit but the trial of a public issue, in which not merely the parties but the whole constituency is interested. But I have been unable to appreciate the logic of this distinction. There can be private suits which affect a large number of persons, but it has never been suggested that discovery should be refused in such suits on that account. Secondly it is contended that discovery runs counter to the scheme of the Act because the burden of proof in an election petition rests always on the petitioner and he should not be allowed to shift the burden by subjecting the respondent to interrogatories, which have to be answered on pain of having the defence struck off under Order XI, Rule 21. I fail to see, however, how this procedure can be said to shift the burden of proof. The onus of proving the easel set up in the petition rests on the petitioner throughout; but he may discharge that onus either by producing witnesses or other evidence or by eliciting admissions from the respondent. And such admissions may be elicited either by cross-examination or by the procedure of discovery. If the eliciting of admissions by means of cross-examination is not considered incompatible with the spirit of the law governing election petitions. I fail to see why the securing of similar admissions by the process of discovery should be held to offend against that spirit. It is noteworthy moreover that for 46 years (from 1920 to 1966) the Indian electoral law contained an express provision for discovery, in Section 5 of the Indian Elections Offences and Inquiries Act, 1920 and in Section 92 of the Representation of the People Act, 1951; and during that long period there obviously could be no question of any incompatibility or repugnance. As already pointed out, when the later Act was amended in 1966, no radical change was contemplated or proposed with regard to the powers exercisable in the trial of election petitions; and there seems to be no reason why the procedure of discovery should have become any more incompatible with the scheme of the Act or the spirit of the electoral law after the amendment than it was before.
14. Another line of argument pursued by learned counsel for the respondent is that election petitions belong to a class of cases in which discovery has never been allowed; and in this connexion he has cited the following passage from Halsbury's Laws of England (3rd Edition, Vol. 12. page 4):
'4. Proceedings in which discovery will not be granted. There are, however, two exceptions to the general rule already stated. One is when a special jurisdiction is created by statute and the wording of the statute excludes the power to grant discovery in proceedings under the statute. The other exception excludes any right to discovery in civil proceedings where the action is brought merely to establish a forfeiture or enforce a penalty; but if there are other issues in the action, not involving a penalty or forfeiture, or the action is to establish some civil right apart from the penalty, the court may make an order for discovery limited to those issues or to that part of the action, so long as the issues are clearly severable it is possible to frame an order so limited. The refusal of the courts to order discovery in such an action must not be confused with the right of a party in any action to object on oath that the discovery will tend to criminate him or expose him to a penalty.'
The contention is that an election petition must be treated as an action 'to establish a forfeiture or enforce a penalty', because it may lead to the forfeiture of the respondent's seat in Parliament and to the penalty of disqualification under Sections 8-A & 11-A of the Act, and that it therefore, comes within the ambit of the second exception mentioned in this passage. But the case law that has been cited before me in support of this argument suggests that the English Common Law rule on which reliance has been placed has been applied only to certain very limited categories of cases and cannot be stretched to cover all cases involving every kind of forfeiture or penalty (using these terms in the widest sense). Martin v. Treacher. (1886-16 QBD 507); Saunders v. Wiel, (1892-2 QB 321) and Colne Valley Water Co. v. Watford and St. Albans Gas Co., (1948-1 KB 500) all relate to actions for the recovery of pecuniary penalties from the defendants; while Earl of Maxborqugh v. Whitewood Urban District Council. (1897-2 QB 111) and Seddon v. Commercial Salt Co. Ltd., (1925-1 Ch 187) relate to actions for enforcing the forefeiture of a lease. No case has been brought to my notice in which the rule prohibiting discovery has been followed in a suit involving the forfeiture of an office or the imposition of a non-pecuniary penalty (such as disqualification for holding office or for voting). Moreover, quite apart from the question of the class of case to which the rule can be applied, it seems to me that it is not permissible to invoke this kind of technical rule of the English Common Law in the vastly different circumstances that obtain in this country. It is no doubt true that the Indian electoral law has been largely modelled on the corresponding English statutes; but that does not mean that English Common Law doctrines must be followed when interpreting the Indian Law. As pointed out earlier, when elections were introduced in India, the provisions of Section 5 of the Indian Election Offences and Inquiries Act, 1920 made a radical departure from English practice with regard to the use of the procedure of discovery in the trial of election petitions; and in view of that departure it would clearly be highly unsafe to place reliance on the rules of the English Common Law relating to this subject for the purpose of interpreting subsequent Indian statutes.
15. The last argument advanced on behalf of the respondent is that discovery should not be permitted in election petitions because the proceedings are of a criminal nature and the answers given to interrogatories or the matter contained in the documents required to be disclosed might tend to incriminate the respondent. But even the English law does not go as far as this. The practice of the Court of Chancery in respect of interrogatories has been stated in Allhusen v. Labouchere, (1878-3 QB 654) to be as follows:
'It has always been the practice of the Court of Chancery, and that practice is now under the Act of 1873. Section 25 (11), universal, that it is no objection to an interrogatory, and no ground for taking the interrogatory off the file, if relevant, that the answer might tend to incriminate the party to whom it is exhibited. He may say, if he thinks fit. 'I refuse to answer on the ground that the answer may tend to incriminate me', but then he must take the objection on his oath.'
And with regard to the discovery to documents, an objection that an action is in the nature of a criminal charge and that an order for discovery of documents might tend to incriminate the party ordered is not sufficient to give immunity from discovery--vide Association of Operative Plasterers v. Smithies, (1904-7 All ER Reprint 961). In such a case the proper procedure, as stated in Halsbury's Laws of England (3rd Edition, Volume 12, page 51), is to disclose the document in the affidavit and therein raise the ground of objection to produce it. It is clear, therefore, that the possibility of the incrimination of the respondent is no bar to the delivery of interrogatories or the issue of an order directing the discovery of documents on oath, though it may entitle the respondent, when filing the affidavit in reply, to refuse to answer a particular question or to decline to produce a specified document.
16. To sum up, I find that in India there is no warrant for following the English practice of disallowing discovery in the trial of election petitions; that the omission of Section 92 from the Representation of the People Act in 1966 was not intended to abolish the procedure of discovery; that the powers exercisable under the present Section 87 of the Act include the power to order discovery; that this power is neither repugnant to any section of the Act or any rule framed thereunder nor incompatible with the scheme of the Act or the spirit of the law governing election petitions; that the English Common Law rule forbidding discovery in actions to establish a forfeiture or to enforce a penalty does not apply to an election petition and in any case cannot be invoked in India; and that the mere fact that answering certain interrogatories or disclosing certain documents may tend to incriminate the respondent does not make the procedure of discovery inapplicable to proceedings of this nature. My conclusion is that there is no legal impediment to the application of the provisions of Order XI, Civil P. C. to the present election petition. And having considered the submissions made on behalf of the contesting parties, I am satisfied that this is a fit case for those provisions to be applied.
17. Accordingly I allow the application A-29 and grant leave to the petitioner to deliver the accompanying interrogatories for the examination of respondent No. 1. The affidavit in reply shall be filed by 4-10-1971.
18. I also allow the application A-28 and direct the respondent No. 1 to make discovery on oath of the documents which are or have been in her possession or power, relating to the matters specified in Clauses 1, 2 and 3 of paragraph 4 of the application. The affidavit in reply to this also shall be filed by 4-10-1971.