2006 Supreme(SC) 450

2006(5) Supreme 390
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
S.B. Sinha and P.K. Balasubramanyan, JJ.
Nayini Narasimha Reddy — Appellant
versus
Dr. K. Laxman & Ors. — Respondents
Civil Appeal No. 2475 of 2006
(Arising out of SLP (Civil) No. 6785 of 2005)
Decided on 5-5-2006
Counsel for the Parties :
For the Appellant : Harish N. Salve, Jaideep Gupta, Sr. Advocates R. Santhan Krishnan, Praveen K. Pandey, P. Vijay Kumar, D. Mahesh Babu, Advocates.
For the Respondents : L. Nageshwar Rao, Sr. Advocate, G. Ramakrishna Prasad, Dr. K.P. Kyalasanath, Mohd. Wasay Khan, Suyodhan Byrapaneni, Venkat Subramaniam, Advocates.

Headnote:Representation of the People Act, 1951 — Section 94 — Interpretation of — Summoning of a voter as a witness, to disclose his preference — Rule against testimonial compulsion — Claim of privilege against self-incrimination — Maintainability — An election was held in Musheerabad Assembly constituency by using electronic voting machines — 1st respondent lost the election by a margin of 240 votes — Election petition filed challenging the election process alleging misalingment of the machine, asserting that whereas both the parties polled nil votes from a particular booth, independent candidate polled a high number of votes — Prayer made for issuance of summons to some witnesses who had agreed to give evidence — Appellant’s case that any summons taken out to compel a witness to depose before the Court, would be invalid in law, as no witness can be asked to disclose as to in whose favour he had cast his vote — Whether courts can be asked to issue summons to witnesses — (Yes) — Civil Procedure Code, 1908 — Order XVI Rule 1(2).

       As per S.B. Sinha, J.

       Held : Secrecy of ballots indisputably goes to the root of democracy, but the same in our opinion may not itself be a ground to refuse issue of summons to the witnesses, Section 94 of the Act merely confers a privilege upon a voter. He may even waive his right. It is not in dispute that any person can be produced as a witness by the parties to an election petition. Witnesses so produced on behalf of the parties without any summons being issued would be at liberty to disclose in the court as to in whose favour he had exercised his right of franchise. It is, therefore, evident that the question as to whether a witness will exercise his right/privilege conferred in terms of Section 94 of the Act is a matter of volition. It is one thing to say that the civil court while issuing a summon must exercise its jurisdiction in terms of sub-rule (2) of Rule 1 of Order XVI of the Code of Civil Procedure but it is another thing to say that the court would refuse to summon the witness only because a question as regard exercise of the privilege of the witness may arise. The court may not refuse to exercise its jurisdiction only on the ground that by reason thereof the privilege of a voter may be violated. (Paras 13 & 14)

       Sub Rule 2 of Rule 1 of Order XVI of the Code of Civil Procedure indisputably require the party to file an application for obtaining any summons for the attendance of any person stating therein the purpose therefor; but the same would not mean that the court would refuse to exercise its jurisdiction only because one of the purposes disclosed may be that the witness may be asked a question as to in whose favour he had exercised his right of franchise. The purpose which is required to be disclosed in such an application for summoning a witness is only with a view to apprise the court as to whether the evidence which may be adduced, would be relevant for the purpose of determining the issues and not for any other purpose. It may be true that if a person to whom summons is issued appears in the court, the Court may require him to give evidence or produce any document in his possession or power, as envisaged under Order XVI of the Code of Civil Procedure; but the same again would not mean that if thereby a mere possibility exists that the secrecy of voting thereby may be infringed, the summons would not be issued at all.(Paras 16 & 17)

       As per P.K. Balasubramanyan, J. (Concurring Judgment)

       Section 94 of the Representation of the People Act, 1951 (for short, the Act) provides that a voter in an election, when summoned as a witness in an election petition, cannot be compelled to disclose for whom he has voted. The words, "shall be required" place a bar on any such compulsion. The Court, as of right or by authority, cannot compel the voter summoned as a witness, to disclose his preference. The sub-heading to Section 94 of the Act indicates that the bar is intended to preserve the secrecy of the ballot. The rule against testimonial compulsion, in a case governed by Section 94 of the Act, will have to be approached from two angles. The initial question is whether the witness would have to incriminate himself while giving evidence.(Paras 2 & 3)

       The privilege against self-incrimination is to be claimed by the witness. The right becomes available only after the witness has taken the stand and a question that offends the privilege is put to him. A prospective witness or some other person (as in the present case) cannot raise such an issue in anticipation of an apprehended breach of privilege against self-incrimination.(Para 4)

       It is clear that Section 94 of the Act only confers a privilege on the witness and that he would be at liberty to waive it and give evidence on his electoral preference. The argument based on Section 94, at the instance of the appellant, on the ground of a perceived threat of self-incrimination of the prospective witness, is misconceived. The appellant cannot thrust the privilege under Section 94 of the Act on the prospective witness. The appellant cannot deprive the witness of the right to take his own decision in the matter as and when he takes the witness stand and a question on his electoral preference is put to him.(Para 4)

       In the present case, we must also note two incidental aspects that stand in the way of accepting the plea of the appellant. The arguments based on Section 94 of the Act are not being raised by the prospective witness but by a third person. The stage at which the plea is raised i.e. even before the witness has actually taken the witness stand is also significant. The appellant cannot seek to prevent the witness from taking the stand. He cannot also seek to curb the power of the Court to summon the witness. In the above situation, neither the privilege against self-incrimination nor the secrecy of the election process stand in the way of a voter being summoned as a witness in an election petition. The power of the Court under Order XIV of the Code of Civil Procedure, 1908, on application by the parties or suo moto to summon any person for his attendance in Court and its power to summon any person to produce any document remains unaffected by Section 94 of the Act. The power of the Court to summon a witness is one thing, the privilege of a witness not to answer a question put to him is another. The witness would be free to claim privilege under Section 94 of the Act and can refuse to reveal for whom he has voted. However, if he is willing to disclose his electoral preference he is entitled to do so.(Paras 6 & 7)