Basheer Ahmed Sayeed, J.
1. This Civil Revision Petition is the second of its kind, arising in the same proceedings, i.e., election petition, O.P. No. 10 of 1959 on the file of the Court of the Subordinate Judge, Kumbakonam, acting as Election Tribunal. The first of the petitions (C.R.P. No. 1378 of 1959), was filed under Section 115 of the Code of Civil procedure; and since it was understood that such a petition would not lie, that petition has been substituted by the present petition. Therefore, it is not necessary to consider any point arising out of the earlier petition.
2. The present petition under consideration is one which seeks to set aside the order of the learned Election Tribunal in I.A. No. 253 of 1959 in the said O.P. No. 10 of 1959. The facts relevant to this petition are that the present petitioner, who is respondent in the said O.P., is the candidate declared elected in a municipal election for Ward VII of Kumbakonam Municipality. The respondent in this Civil Revision Petition who was defeated by about 33 votes in the said election, has preferred an election petition to set aside the election of the petitioner in the Civil Revision Petition on the ground that he resorted to various corrupt practices set out in the election petition. In the course of the pendency of the original petition before the Tribunal, the respondent before me took out an application under Order 11, Rule 1 of the Code of Civil Procedure relating to discovery and inspection, praying that the Election Tribunal should be pleased to administer certain interrogatories to the respondent in the said original petition. That petition was taken out under Rule 1. It was objected to by the present petitioner in the Civil Revision Petition. The objection was overruled by the Election Tribunal on the ground that
the provisions contained in the Code of Civil Procedure would apply in regard to discovery and inspection; and that Order 11, Rule 1 of the Code of Civil Procedure referred to discovery which includes interrogatories as well. Therefore, the petitioner is well within his limits to administer interrogatories to the respondent to get the relevant answers.
Against this order, the respondent in the said original petition has preferred this Civil Revision Petition.
3. The learned Counsel Mr. K. Raman, appearing on behalf of the respondent in this Civil Revision Petition, took exception to the maintainability of this Civil Revision Petition itself on the ground that Article 227 of the Constitution does not enable the petitioner to come up with such an application against the order of the Election Tribunal. I have heard him in full; and I do not think that his arguments have any force. The question as to whether the application under Article 226 or 227 could be filed, has been given final rest by the decision of the Supreme Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors. (1955) S.C.J. 267 : (1955) 1 M.L.J. 157. The passage occurring at page 165 of the said decision is in very clear terms, and it states,
We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution, and that that superintendence is both judicial and administrative. That was held by this Court in Waryam Singh and Anr. v. Amarnath and Anr. : 1SCR565 , where it was observed that in this respect Article 227 went further than Section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative, and that it restores the position under Section 107 of the Government of India Act, 1915. It may also be noted that while in a certiorari under Article 226 the High Court can only annul the decision of the Tribunal it can, under Article 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of certiorari and for other reliefs was maintainable under Articles 226 and 227 of the Constitution.
Therefore, there can be no more argument against the maintainability of the Civil Revision Petition against the order of the Election Tribunal when that Tribunal is giving decision of election disputes under the Madras District Municipalities Act, 1920, in regard to elections to Municipalities and Local Boards.
4. The next objection taken by the learned Counsel against the maintainability of this Civil Revision Petition was on the ground that the respondent in the original Petition was bound to answer the interrogatories as it was intended to simplify the matters before the actual trial of the petition took place; and that as a matter of fact, all the questions that have been included in the interrogatories to be administered to the respondent in the original petition are quite simple and do not lead to any complications; and that it was within the power of the Election Tribunal to order such interrogatories. It is true that under Order 11, Rule 1, and following the rules under that order the Election Tribunal, acting as a Tribunal in conformity with the rules of the Code of Civil Procedure, is empowered to order interrogatories. But, before interrogatories could be ordered, it is also incumbent upon the Tribunal functioning as a judicial authority to apply its mind and see the effect, import and significance of the interrogatories that are sought to be administered to the respondent by the petitioner in the original petition. Though the interrogatories have been claimed by the learned Counsel for the respondent in this Civil Revision Petition to be quite harmless and simple, still, it cannot be denied that when they will be put to the petitioner in this Civil Revision Petition, to be answered by him, there will be a lot of inconvenience and also incrimination of himself by reason of the answers that he is expected to give to these questions. Simply because the Election Tribunal has powers under the Code of Civil Procedure under which the Election Tribunal proceedings are to be conducted, it does not mean, however, that all interrogatories that are submitted to the Court could be directed against the respondent forthwith. If there is any objection from the respondent to the answering of these interrogatories, it is the bounden duty of the Court to examine as to how far they are tenable in the present case. A reading of the interrogatories would certainly indicate that these interrogatories are not so innocent and so simple as the learned Counsel would appear to make them. That the respondent is not bound to answer the interrogatories which are likely to lead into an incrimination of himself in any criminal offence, has been held in several cases of the English as well as the Indian Courts. Suffice it for me to refer to only two decisions of the English cases reported in Queen's Bench Division Volume II and X. The first decision is in Atherley v. Harvey (1876) L.R. 2 Q.B. 524, where it has been held,
Interrogatories asking the defendant whether he has composed or published an alleged libel arc objectionable and will be struck out without requiring the defendant to object to them by way of answer.
In this decision it is cited:
Demurrers to discovery may be arranged under the following heads : 1. That the discovery may subject the defendant to pains and penalties, or to some forfeiture, &c.; If, therefore, a bill alleges anything which, if confessed by the answer, may subject the defendant to a criminal prosecution the defendant may object to the discovery.
Lush, J., referred to Wigram on Discovery, 2nd Edition, page 80, Section 130 to the following effect,
If a question involves a criminal charge, the plaintiff is not entitled to an answer to such question, however material it may be to the plaintiff's case, citing Thorpe v. Macauley 5 Mad. 218; Atherley v. Harvey (1882) L.R. 10 Q.B. 110.
Mellor, J., discusses the definition between the powers conferred on the Judges by the Common Law Procedure Act and the Rules of Equity which were binding upon the Judges. The learned Judge held,
Where there is any conflict between the rules of law and the rules of equity, the rules of equity are to prevail, and consequently even a Tribunal composed of the same Judges, as men though not the same Judges in their character as Judges, since they are now judges of the High Court, will be no longer governed by the clauses of the Common Law Procedure Act, if those clauses conflict with the rules of Equity, but will be governed by the rules of equity. Atherley's case (1876) L.R. 2 Q.B. 524.
In the instant case what the learned Counsel seeks to emphasise is that it was within the powers of the Tribunal to order interrogatories: and, therefore, he was right in having ordered these interrogatories. But the fact remains that the Tribunal did not consider the rules of equity which ought to have been in its mind when it was ordering the interrogatories. As already observed, to possess the power to order is one thing; and to find out whether such interrogatories could be administered at all is another; and in so far as this the Election Tribunal does not appear to have exercised its mind in accordance with the rules of equity, despite the fact that the Common Law denies interrogatories to the respondent. Field, J., concurring with Mellor, J., has observed,
it is well established in equity that a bill of discovery for the purpose of obtaining the information which is asked for here would be demurrable, that is, the Court of Chancery would not allow the defendant to be harassed by having to answer such questions, but would prevent them from being put. Altherley's case (1876) L.R. 2 Q.B. 524.
The third Judge also concurred with the other two Judges. In Lamb v. Munster (1882) L.R. 10 Q.B. 110, it was held,
An objection to answer interrogatories which is made by affidavit on the ground of the tendency of the answer to criminate the person interrogated may be valid, although not expressed in any precise form of words, if, from the nature of the question and the circumstances, such a tendency seems likely or probable. In an action for libel the defendant pleaded a denial of the publication, and to interrogatories asking him, in effect, whether he published the libel he stated by his affidavit in answer : 'I decline to answer all the interrogatories upon the ground that my answer to them 'might' tend t o criminate me.
It was held in this decision that this answer was sufficient not to lay the interrogatories.
The learned Judges have observed in the course of the Judgment.
It becomes the duty of the Judge to look at the nature and all circumstances of the case and the effect of the question itself, to see whether it is a question the answer to which will really tend to criminate the witness. Lamb v. Munster (1882) L.R. 10 Q.B. 111.
It was further observed by Field, J.,
I should not regard the form of words, but look to see whether answering would be likely to have or probably would have such a tendency to criminate, and bearing in mind the cardinal rule that a man shall not be compelled to criminate himself, I should almost prefer a man to be careful and say the answer might tend to criminate, and I should be slow to commit him to prison for not doing that which the law says he is not bound to do. Lamb v. Munster (1882) L.R. 10 Q.B. 111.
Stephen, J., observes more succinctly in the same judgment when he stated,
It is not that a man must be guilty of an offence and say substantially, 'I am guilty of the offence, but am not going to furnish evidence of it.' I do not think the privilege is so narrow as that, for then it would be illusory. The extent of the privilege is that I think this : the man may say, 'If you are going to bring a criminal charge, or if I have reason to think a criminal charge is going to be brought against me, I will hold my tongue'. Prove that you can but I am protected from furnishing evidence against myself out of my own mouth. Lamb v. Munster (1882) L.R. 10 Q.B. 111.
The learned Judge also quoted from Cockburn, C.J., When he stated as follows:
It was contended that a bare possibility of legal peril was sufficient to entitle a witness to protection : nay, further, that the witness was the sole judge as to whether his evidence would bring him into danger of the law : and that the Statement of his belief to that effect, if not manifestly made mala fidr, should be received as conclusive. Lamb v. Munster (1882) L.R. 10 Q.B. 111.
But the further passage quoted by the learned Stephen, J., is to the following effect,
But he goes on to say that 'the Court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer', and also the danger must be real and appreciable. Lamb v. Munster (1882) L.R. 10 Q.B. 111.
Applying the principle of these two decisions, and scrutinising the interrogatories, it is clearly evident to my mind that in the present case, the petitioner (respondent in the lower Court) is asked whether he has written the letters, and did the several acts referred to in the interrogatories; and if he answers them, they may endanger him, and if that answer is not in any way mala fide, then certainly it ought to be considered sufficient as not to entitle the Court to order the interrogatories. If the witness called upon to answer interrogatoties says this that the answer would tend to incriminate him, meaning thereby that it would tend to bring criminal prosecution for a crime of which, he might be innocent in fact, and of which he might be accused, certainly that would be a situation where the interrogatories cannot be allowed.
5. On a consideration of all the aspects of this application filed by the petitioner in the original petition and the objection taken to the same by the respondent, I am of the opinion that the learned Election Tribunal was not justified in ordering the interrogatories; and this Civil Revision Petition is certainly competent; and it has to be allowed and it is allowed with costs.
6. It may further be observed that all the points that arise in the interrogatories would be subject of a cross-examination of the petitioner in the Civil Revision Petition when he goes into the witness box and nothing could prevent the petitioner in the Original Petition to cross-examine him on all the aspects which are contained in the interrogatories. It need not be held that because the interrogatories could not be administered, questions concerning the points that arise in the interrogatories are also not admissible when the respondent in the original petition is in the witness box to support his case. In fact, all these points that arise from the interrogatories could be very well put to the respondent in the original petition and answers elicited from him in the course of the trial of the petition, and subject to any objections that might be raised by the witness from the witness box stating his inability to answer the same.
7. The order and records in this petition will be despatched expeditiously so that the trial of the election petition need not be held up.