- (1.)It appears from the records that the depositions of the P.Ws. 1 and 2 were supposed to be signed by the Hon'ble Judge (since deceased) at places marked in the depositions for the signatures of the Judge. The witnesses had signed the depositions. However, the Hon'ble Judge had not signed them. It also appears that the evidence of the witnesses were taken from the dictation of the Judge directly on the typewriter. The case is appealable to the Supreme Court of India under S.116A of the Representation of the People Act, 1951 (the "Act" for short). The evidence of P. Ws. 1 and 2 were taken on 7-11-1983 and 8-11-1983 respectively. P.W. 2 was the Deputy Registrar (Administration) of the Gauhati High Court. He has now retired from the service.
(2.)A short question which arises for consideration is whether a Judge is required to sign the deposition of the witness in an election case. S.87(1) of the 'Act' runs : "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." (Emphasis added) The provisions in S.87(1) of the 'Act' shows that the whole of the Civil ProcedureCode is not fully applicable.The S.87(1) provides that the proceeding should be tried "as nearly as may be" in accordance with the procedure applicable under the Code of Civil Procedure. The reasons for using the expression "as nearly as may be" appears to be that u/s. 86(7) of the 'Act', endeavour is to be made to conclude the trial of an election petition within 6(six), months from the date on which the election petition is presented and if the technicalities of the Code is followed the trial may not be concluded expeditiously. The technicalities of the Code should not make the progress of the trial of an election petition difficult. However, it must be consistent with the interests of justice. As such, the expression "as nearly as may be" shows only an approximation. In the other words, an election Court shall be guided by the spirit of the Code, but shall not be bound by the letter of the Code.
(3.)Under the new O.18, R.5 of the Code, a Judge is not required to sign the deposition of the witness although the former O.18, R.5 of the Code provided that a Judge shall, if necessary, correct the evidence, and sign it. The amended S.87 of the 'Act' came into force on 14-12-1966 and the new O.18, R.5 of the Code came into force on 1-2-1977. Therefore, another question which arises for consideration is whether the old R.5 or new R.5 will be applicable to the present case. A reading of Ss.6A and 8 of the General Clauses Act shows that : 1) A statute may incorporate the provisions of another statute by specific reference; AND/OR 2) A statute may incorporate the law concerning a particular subject by general reference. In the case of (1), the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of (2), the subsequent amendments made in the referred statute will be construed as reference to the provision so re-enacted or amended. This view of mine receives support from the decision, in Bajya, AIR 1978 SC 793. In Bajya, the Supreme Court observed :
"First, where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference."
In the background of the above principles, let me now discuss the present case. A perusal of the S.87(1) of the 'Act' reveals that the 'Act' incorporates the Code which concerns the laws relating to the procedure of the Courts of Civil Judicature bygeneral reference. Therefore, the reference to Code in S.87(1) falls under the category (2) above. In this view of the matter, the new O.18, R.5 of the Code will be applicable to the present case to the extent as discussed above.
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