N.S. NANDIESHA REDDYversusKAVITHA MAHESH

                        [2021] 8 S.C.R. 297                              297


                    N.S. NANDIESHA REDDY                                 A
                                  v.
                       KAVITHA MAHESH
                   (Civil Appeal No. 4821 of 2012)
                        AUGUST 03, 2021                                  B
         [N. V. RAMANA, CJI, A. S. BOPANNA AND
                  HRISHIKESH ROY, JJ.]
      Election Laws:
      Representation of People’s Act, 1951 – s. 100(1)(c) – Improper     C
rejection of nomination paper – Returning officer giving false
evidence before the Court – Effect of – On facts, the High Court
held the election of the appellant from the Legislative Assembly
constituency to be void, in terms of s. 100(1)(c), and in the course
of the said order issued direction to the Registrar General of the
                                                                         D
High Court to register a complaint u/s. 193 IPC against the Returning
Officer for the said election, for giving false evidence before the
Court – On appeal, held: Mere reference to inconsistent statements
alone not sufficient to take action unless a definite finding is given
that they are irreconcilable; one is opposed to the other so as to
make one of them deliberately false – Even when the Court comes          E
to the conclusion on the aspect of intentional false evidence, still
the Court has to form an opinion whether it is expedient in the
interest of justice to initiate an inquiry into the offences of false
evidence, having regard to the overall facts of the case – It cannot
be said that the Returning Officer with an ulterior motive had
                                                                         F
declined to receive the nomination paper and to cover up his act
was seeking to tender false evidence before the Court – Manner in
which the Judge concluded that the returning officer was
inconsistent in his statements in the course of his evidence tendered
by him as prosecution witness not justified – Conclusion reached
that he is to be prosecuted, without the findings being recorded         G
regarding deliberate or intentional falsehood cannot be sustained
– Hence, the direction issued to the Registrar General of the High
Court cannot be sustained – Furthermore, the appellant having
completed the term of the Assembly for which he was elected, the
prayer is rendered infructuous.
                                                                         H
                                 297
298            SUPREME COURT REPORTS                      [2021] 8 S.C.R.


A          Disposing of CA No. 4821 of 2012 and allowing CA No.
      6171 of 2012, the Court
            HELD: 1.1 Mere reference to inconsistent statements
      alone is not sufficient to take action unless a definite finding is
      given that they are irreconcilable; one is opposed to the other so
B     as to make one of them deliberately false. Notwithstanding the
      conclusion reached by the Judge on the aspect of improper
      rejection of the nomination paper, the correctness of which was
      not required to be gone into for the reasons stated, the manner
      in which the Judge has concluded that the appellant in C.A. No.
      6171/2012 was inconsistent in his statements in the course of his
C     evidence tendered by him as PW3 is not justified. Further the
      conclusion reached that he is to be prosecuted, without the
      findings being recorded regarding deliberate or intentional
      falsehood cannot be sustained. Hence the direction issued to the
      Registrar General of the High Court to initiate the proceedings
D     by lodging a criminal complaint also cannot be sustained in the
      facts and circumstances arising in this case. [Para 11, 16][309-E-
      F; 311-F-H; 312-A]
             1.2 Even in a case where the Court comes to the conclusion
      on the aspect of intentional false evidence, still the Court has to
E     form an opinion whether it is expedient in the interest of justice
      to initiate an inquiry into the offences of false evidence, having
      regard to the overall factual matrix as well as the probable
      consequences of such prosecution. The Court must be satisfied
      that such an inquiry is required in the interest of justice and is
      appropriate in the facts of the case. In that backdrop, insofar as
F     the observation made by the Judge of the election tribunal relating
      to the need for maintaining purity of the election process which
      is the heart and soul of democracy and in that situation the role of
      the Returning Officer being pivotal, the same is fully concurred
      with. [Para 17][312-B-D]
G           1.3 From the evidence as tendered, there is no reason to
      permit the prosecution since there is no intentional falsehood
      uttered. The other relevant facts also indicate that the factual
      matrix does not indicate that it is expedient in the interest of
      justice to initiate an inquiry and expose the appellant to criminal
H     prosecution. On this aspect it is to be noted that the instant case
       N.S. NANDIESHA REDDY v. KAVITHA MAHESH                         299


is not a case where the nomination paper which was complete in        A
all respect was filed and it had been improperly rejected in the
scrutiny stage. The allegation of the election petitioner is that
the Returning Officer had refused to receive the nomination paper,
which the learned Judge in the ultimate analysis has accepted
and termed the same as an improper rejection. Even that be so,
                                                                      B
to indicate that the non-acceptance alleged by the election
petitioner was a deliberate action by the Returning Officer with a
specific purpose, it has neither been pleaded nor proved in the
course of the proceedings so as to penalise the appellant to face
yet another proceeding. The Assembly Constituency concerned
is a vast constituency which had nearly four lakh voters on the       C
electoral rolls. The election petitioner had not placed material to
indicate that she had contested in any earlier election or had wide
support base in the election concerned and it is in that view she
had been shut out from the contest. Further there is no allegation
that the Returning Officer was acting at the instance or behest of
                                                                      D
any other candidate who was feeling threatened by the
participation of the election petitioner in the election process.
[Para 18][312-D-H; 313-A]
       1.4 On the other hand, the election petitioner, as per her
own case was seeking to present the nomination paper which
                                                                      E
was incomplete and even in that circumstance, she had come to
the office of the Returning Officer only at 2.00 pm on the last day
for filing nomination which was to close at 3.00 pm. Thereafter
she made attempts to complete the formalities in filling up the
nomination paper and having failed had still presented the
nomination paper since according to her the needful could have        F
been done within 24 hours. In such a case it cannot be said that
the Returning Officer with an ulterior motive had declined to
receive the nomination paper and to cover up his folly was seeking
to tender false evidence before the Court and thereby to justify
his illegal action. In fact, the appellant had received the other
                                                                      G
nomination papers submitted to him on the last day even as late
as 2.58 pm. It is also the consistent view of this Court that the
success of a candidate who has won at an election should not be
lightly interfered with. In any event it ought not to have been
made the basis to initiate prosecution by terming the appellant
as unreliable witness. Further, the appellant was aged 59 years       H
300            SUPREME COURT REPORTS                      [2021] 8 S.C.R.


A     as on 15.06.2011 while recording his deposition and a decade
      has passed by and now would be 69 years. The appellant has
      retired from service about eight years back. For all these reasons,
      it is found that any proceeding against the appellant is also not
      expedient apart from not being justified. [Para 19][313-A-E]
B           Amarsang Nathaji v. Hardik Harshadbhai Patel & Ors.,
            (2017) 1 SCC 113 : [2016] 12 SCR 80 – relied on.
            KTMS Mohammad and Another v. Union of India,
            (1992) 3 SCC 178 : [1992] 2 SCR 879; Mahavir Singh
            and Ors. v. Naresh Chandra & Anr. AIR 2001 SC 134
C           : [2000] 4 Suppl. SCR 454; Jagan Nath v. Jaswant
            Singh & Ors. AIR 1954 SC 210 : [1954] SCR 892 –
            referred to.
                            Case Law Reference
D     [1992] 2 SCR 879                  referred to        Para 14
      [2000] 4 Suppl. SCR 454           referred to        Para 15
      [1954] SCR 892                    referred to        Para 15
      [2016] 12 SCR 80                  relied on          Para 17
E
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4821
      of 2021.
            From the Judgment and Order dated 01.06.2012 of the High Court
      of Karnataka at Bangalore in Election Petition No.7 of 2008.
F
            With
            Civil Appeal No.6171 of 2012
            Jayant Mohan, Adv. for the Appellant.
G           S. N. Bhat, Adv. for the Respondent.
            Caveator-in-Person.



H
       N.S. NANDIESHA REDDY v. KAVITHA MAHESH                                301


      The Judgment of the Court was delivered by                             A
      A. S. BOPANNA, J.
       1. The appellants in both these appeals are assailing the order
dated 01.06.2012 passed by the learned Single Judge of the High Court
of Karnataka at Bangalore in Election Petition No. 7/2008. By the said
order, the election of the appellant in C.A. No. 4821/2012 (Mr. Nandiesha    B
Reddy) from 151 K.R. Pura Legislative Assembly constituency in
Bangalore Urban District is held to be void, in terms of Section 100 (1)
(c) of the Representation of People Act 1951. Further, in the course of
the said order the learned Judge has directed the Registrar General of
the High Court to register a complaint against the appellant in C.A.         C
No.6171/2012 (Mr. Ashok Mensinkai) before the Competent Court for
proceeding in accordance with law for the purpose of provisions of
Section 193 Indian Penal Code, 1860. The said direction is issued since
according to the learned Judge, the appellant in the said appeal who was
the Returning Officer for the said election; on being examined as PW.3
in the Election Petition had given false evidence before the Court. In the   D
above circumstance, the appellant in C.A. No. 4821/2012 (Mr. Nandiesha
Reddy) has assailed the order in its entirety while the appellant in C.A.
No. 6171/2012 (Mr. Ashok Mensinkai) has assailed the order insofar as
directing prosecution against the appellant.
       2. In the above background, we have heard Mr. Jayant Mohan,           E
learned counsel for the appellant in C.A. No. 4821/2012 and Mr. S.N.
Bhat, learned counsel for the appellant in C.A. No. 6171/2012. We have
also heard the respondent who had appeared as a party-in-person in
both these appeals and perused the relevant material, as also the written
submission filed on either side.                                             F
       3. The issue arises from the election which was held in April/May
2008 to the Karnataka State Legislative Assembly. The present case as
noted earlier, relates to one of the constituencies, namely, 151 K.R. Pura
Legislative Assembly Constituency. The elections were notified on
16.04.2008 and as per the calendar of events the publication of result       G
was fixed on 27.05.2008, soon after which the Karnataka State Legislative
Assembly for that term was constituted. In that background, the term of
the Assembly was up to May, 2013 whereafter the subsequent election
to constitute the Karnataka State Assembly afresh for the next term has
taken place. In that circumstance though by the order impugned dated
                                                                             H
302             SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A     01.06.2012, the election of the appellant in C.A. No. 4821/2012 (Mr.
      Nandiesha Reddy) was held to be void, immediately thereafter, the instant
      appeal was filed and this Court had granted stay of the impugned order
      while issuing notice on 11.06.2012. In that view, the appellant has
      completed the term of the Assembly for which he was elected. As such
      Mr. Jayant Mohan, learned counsel for the appellant in C.A. No. 4821/
B
      2012 (Mr. Nandiesha Reddy) has submitted that the grievance put forth
      in the appeal does not survive for consideration. Having noted the
      sequence it is evident that the prayer in C.A. No. 4821/2012 has rendered
      itself infructuous and the appeal does not survive for consideration.
             4. Though that be the position, Mr. S.N. Bhat, learned counsel for
C     the appellant in C.A. No. 6171/2012 submits that the said appeal needs
      consideration in view of the direction issued by the learned Judge to
      prosecute the appellant Mr. Ashok Mensinkai. In that regard, the learned
      counsel has drawn our attention to the manner of consideration made by
      the learned Judge presiding over the election tribunal and contends that
D     there is no proper and definite conclusion reached by the learned Judge
      as to the deliberate falsehood uttered in the statement alleged to have
      been made by the appellant. It is contended that the appellant in fact
      was cited as a witness by the election petitioner herself and in the course
      of the examination-in-chief; in answer to the questions put by the learned
      Judge and in the cross-examination, the appellant has been consistent in
E     narrating the facts sequentially as it had occurred on that day. The
      appellant though was initially arrayed as respondent No.4 to the election
      petition, he had been deleted and as such the appellant did not have the
      opportunity of putting forth his written statement/objection statement to
      the Election Petition so as to controvert the allegations made against the
F     appellant. In any event, the election petitioner had examined the appellant
      and in respect of the statements made by the appellant the election
      petitioner did not choose to cross-examine the appellant after seeking to
      treat him as a hostile witness if the allegation of tendering false evidence
      was to be made. Further, the learned Judge after noticing the two versions,
      one by the election petitioner and the other by the appellant, though was
G     entitled to rely upon one of the versions as probable to arrive at his
      conclusion on the merit of the case, that by itself cannot be made the
      basis to order prosecution. That apart no opportunity was granted to the
      appellant in terms of Section 340 of the Criminal Procedure Code, 1973
      before forming an opinion to direct the Registrar to lodge a complaint. It
H     is his further case that the action of the present nature could not have
        N.S. NANDIESHA REDDY v. KAVITHA MAHESH                                 303
                    [A. S. BOPANNA, J.]

been initiated unless there was material to indicate that the witness had      A
uttered falsehood intentionally. The appellant could not have gained either
way if the election petitioner had contested the election or not. In such
situation no purpose would have been served by not accepting her
nomination if she had actually complied with the requirement and
presented the nomination papers. The appellant had accepted 30
                                                                               B
nomination papers from 18 different candidates for the same election
and on 23.04.2008 i.e., the last day itself the appellant had received 18
nomination papers and one more would not have made any difference.
In that view he contends that the order is not sustainable.
       5. The respondent party-in-person however, contends that the
appellant had by not accepting the nomination, denied an opportunity for       C
the respondent to contest the elections and in such circumstance the
learned Judge had noted the inconsistent statements made by the appellant
in the course of his evidence to justify his illegal action. The learned
Judge has therefore rightly arrived at the conclusion to direct prosecution
and such order does not call for interference is her contention.               D
       6. Having noticed the contentions put forth in C.A. No.
6171/2012 and also having noted that the dispute in C.A. No. 4821/2012
has rendered itself infructuous, we restrict our consideration limited to
the question as to whether the appellant in C.A.No. 6171/2012
(Mr. Ashok Mensinkai) should be exposed to criminal prosecution and
whether it is expedient to do so in a matter of the present nature. It is no   E
doubt true that the election petition itself is predicated on the allegation
against the appellant in C.A. No. 6171/2012 to the effect that as a
Returning Officer for the said election he had wrongly refused to accept
the nomination papers sought to be submitted by the election petitioner
which amounts to improper rejection of the nomination papers in terms          F
of Section 100 (1) (c) of the Act. The consequence of the same has
befallen on the elected candidate. However, presently the ground of
improper rejection of nomination paper as alleged and the conclusion of
the learned Judge on that aspect fades into insignificance for the reasons
stated earlier.
                                                                               G
       7. Therefore, the limited aspect we are required to notice in the
present situation is only with regard to the statements made by the
appellant in his evidence as PW.3 which are considered by the learned
Judge to be inconsistent and, therefore, stated to amount to perjury. In
that regard whether the action initiated by the learned Judge on that
aspect is justified is the issue, if not, it will call for interference. As    H
304             SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A     noted, the appellant was examined as PW.3. In the course of his
      deposition, he had stated that he can identify the election petitioner as an
      intending candidate in 151 K.R. Pura Legislative Assembly Constituency.
      He has further stated that he does not remember if the election petitioner
      had met him on three occasions on 23.04.2008 which was the last day
      for filing nomination papers. He has however stated that he remembers
B
      to have seen the election petitioner on two occasions, on that day. He
      has also stated that he does not remember the exact time of the election
      petitioner meeting him for the first time, but it could be between 3.00 pm
      and 3.15 pm. On the second occasion he recollects to have met the
      election petitioner on the same day between 5.30 pm and 6.00 pm while
C     he was going out from office after work for the day. The request made
      by the election petitioner at that stage to accept the nomination paper
      was declined since the time for acceptance was over. In that context he
      states that the nomination paper which was marked as Exhibit P1 had
      not been presented before him between 11.00 am and 3.00 pm on
      23.04.2008 which was the permitted time for filing. He also states that
D
      he did not refuse to accept Exhibit P1(nomination paper) for the reason
      it was not accompanied by other necessary documents but in fact it was
      not presented before him.
             8. As against what has been stated by the appellant, the election
      petitioner who examined herself as PW1 has stated that on 23.04.2008
E     she had submitted her nomination paper before the appellant for the
      general election. On delivering the nomination papers she had requested
      the Returning Officer for extracting the new part number and serial
      number of the tenproposers to fill in column no. 2B. The Returning Officer
      is stated to have told her that he did not have the electoral roll of K.R.
F     Pura State Assembly Constituency and that she should approach the
      revenue officials working in the ground floor of the building. She states
      that as per his request she had entrusted the job to her husband and
      supporters to collect the details from the ground floor office. Later, she
      came to know from her husband and her supporter that everybody in the
      revenue office were having lunch break and the details could not be
G     secured. She thereafter, states that for the first time at 14.00 hours when
      she delivered nomination papers, the Returning Officer directed her to
      collect the details but she could not get the details of her ten proposers
      who had signed the nomination papers. She states that on realising the
      time factor that it was the last day for filing nomination papers she
H     submitted her nomination papers by 15.00 hours before the Returning
        N.S. NANDIESHA REDDY v. KAVITHA MAHESH                                   305
                    [A. S. BOPANNA, J.]

Officer once again and stated that she would fill the column subsequently        A
as she has time upto 24 hours to fill the column. She has further alleged
that the appellant refused to receive the nomination papers. What is
relevant to be noted is that the election petitioner in the course of her
cross-examination recorded in para 37 states that after deputing her
husband and supporter to get the details and while she was waiting, she
                                                                                 B
was outside the hall where the Returning Officer was sitting. This would
indicate, what the election petitioner has stated is in tune with the sequence
stated by the appellant except for the variance in the stand insofar as
actually tendering the nomination paper and pressing for acceptance
and according to election petitioner the same not being accepted.
         9. From the two sets of statements, one by the appellant as PW.3        C
and the other by the election petitioner as PW.1 in the course of
adjudication, the reliability of one of them was to be deduced. The crux
of the matter was to find out as to whether the election petitioner had
actually submitted her nomination paper and the appellant had declined
to receive the same. Insofar as that aspect, if the conclusion was in            D
favour of the election petitioner it would be a case of an improper rejection
and, on that aspect, it is not necessary for us to pronounce upon since
the appeal on that question does not survive. However, only issue for
consideration is, from the nature of the statements made above, can the
Court come to a conclusion that the appellant has uttered deliberate or
intentional falsehood in the course of Court proceedings. In that regard,        E
it is to be noted that the learned Judge during the course of the proceedings
had made certain observations and had extracted the earlier order in the
final impugned order dated 01.06.2012, the same reads as hereunder: -
       ORDER PASSED IN THE MORNING SESSION
                                                                                 F
              “The witness is not very sure of what development took
       place and the manner of his deposition is inconsistent every second
       and minute keeps varying and to support his version that he had
       conducted in accordance with rules and regulations and in a proper
       manner states that a certain development had taken place around
       some time, but goes back on the earlier version that the last             G
       nomination paper was received at 2.58 pm but later mentioned it
       was after 3 pm and on being cautioned by the court, goes back to
       the earlier version of 2.58 pm etc.
             This witness is obviously lying on oath, his deposition is
       inconsistent, varying by the second, different version each time.         H
306      SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A     A person giving different version of the same incident is not merely
      uttering falsehood once or the other time, but also committing
      perjury.
             This witness lacks credibility for deposing before the court
      on oath and requires to be dealt with in accordance with law and
B     being a public servant who has taken oath to depose truth and
      only truth before this court has been attempting to depose incorrect
      and false statements which per se is not only perjury within the
      meaning of section 191 of Indian Penal Code but also committing
      contempt of court.
C            Therefore, no need or occasion for recording further
      evidence of this witness and if need be, can be summoned later
      by the court for questioning. As of now, the witness is discharged.
            Witness is directed to remain present in the court hall. Call
      this matter again at 2.30 pm.
D           ORDER PASSED IN THE AFTERNOON SESSION:
             Further cross-examination of the witness is stopped at this
      stage to enable the witness to procure relevant necessary, official
      records throwing light on the developments that had taken place
      during his functioning as the returning officer in the K R Pura
E     assembly constituency.
             As the witness states that the records pertaining to conduct
      of elections etc. are all now available at the office of the district
      election officer, Mahadevapura Zone, BBMP, Bangalore, who is
      ex officio holding this post is otherwise functioning as joint
F     commissioner, BBMP at Mahadevapura and as this officer has to
      part with records. The witness to be enabled to secure these
      records and attend court for further cross examination with the
      records.
             Sri Shashikanth, learned counsel for the respondent submits
G     that for such purpose, it is necessary for the election petitioner to
      make an application listing the documents and records that are
      required to be summoned and summons may be issued on such
      applications to the officer who is having the custody of such
      records.
H
 N.S. NANDIESHA REDDY v. KAVITHA MAHESH                                 307
             [A. S. BOPANNA, J.]

       It is said that procedure is the handmaid of justice and         A
procedure should be given only such importance as is warranted
to ensure fair play, equal opportunity and practical possibilities of
adhering to the procedure.
       An election petition though is a creature of the
Representation of People Act 1951 and being a petition at the           B
instance of an aggrieved persons with regard to the validity of the
declaration of election result, and for questioning a correctness or
otherwise of the declaration of results and may have the
characteristics of an adversary litigation, it nevertheless has a
flavour of public interest imbedded into it as the conduct of free
and fair election is the ‘sine qua non’ of any healthy democratic       C
process. Records relating to the conduct of elections in a general
election either to an assembly or to the parliament are not private
documents but are public documents or records and if any such
record can throw light on the manner of conduct of elections in
any particular assembly segment, while it is a relevant record,         D
familiarity or ignorance of such a record on the part of the election
petitioner cannot come in the way of court scrutinizing the record
for being satisfied or even for being apprised about the manner of
conduct of election.
       It is therefore, hereby ordered and the witness who has          E
appeared before the Court as PW3 today and who had functioned
as the returning officer of the K R Pura assembly constituency is
hereby directed to contact the district election officer with this
order secure the relevant records to enable him to depose before
this court correctly with precision, unambiguity and then appear
with such records before this court on 28.6.2011 as the witness         F
states that he requires at least seven days’ time to complete this
exercise.
       The district election officer who is also the joint
commissioner, BBMP, Mahadevapura, is hereby directed to ensure
compliance with this order and to hand over such records which          G
are in his custody relating to the conduct of K R Pura assembly
election to enable the witness to depose further before this court
in a proper and precise manner as the then returning officer of
the constituency by identifying the record.
                                                                        H
308             SUPREME COURT REPORTS                             [2021] 8 S.C.R.


A                 The Registrar General of this Court is directed to ensure a
             copy of this order is served on the district election officer,
             Mahadevapura zone, BBMP, Mahadevapura, Bangalore-48.
                    The witness also be furnished with a copy of this order.
                   List the petition for further cross-examination of PW3 on
B            28.6.2011.”
             10. As per the version of the election petitioner she had met the
      Returning Officer at 2 pm on 23.04.2008 when certain requirements
      were indicated due to which she made an effort to secure the same
      from the ground floor and after about 45 minutes her husband and the
C     supporter came back with the information that they were unable to get
      the same. She has also stated that at that point she waiting outside the
      room where the Returning Officer was seated. If that version of the
      election petitioner herself is kept in view, it is not the case of the election
      petitioner herself that at 2 pm when she had come, she had met the
D     Returning Officer and insisted for receiving the nomination paper even
      without the details to be filled in column 2B. On the other hand, if the
      case that she made efforts to get the details of the proposers due to
      which some time lapsed and then she presented the nomination paper
      without the details and if the time spent in that regard as stated by her is
      about 45 minutes which is a rough estimate and not precise, the version
E     of the appellant that he had met the election petitioner around 3.00 pm to
      3.15 pm on that day is a probable version. This is more so when the fact
      remains that the appellant was taking note of the nomination papers
      presented by another independent candidate Smt. Ambujakshi. If in that
      context he has stated that the election petitioner had met him between
F     3.00 pm and 3.15 pm, it could only mean that it was after the process of
      receiving the nomination paper of Smt. Ambujakshi. In fact, it is in her
      own deposition the election petitioner has stated that when she was
      unable to get the details and realising the time factor that it was the last
      day for filing nomination papers, she submitted her nomination papers by
      15.00 hours (i.e. 3 pm) before the Returning Officer. Even in that situation,
G     if the learned Judge were to come to a conclusion that the election
      petitioner having already entered the office of the Returning Officer
      prior to the closing hours for receipt of the nomination papers at 3.00 pm
      and in that context due to the guidelines the nomination papers were to
      be received, notwithstanding the same being incomplete, it could be an
H     aspect on the question of improper rejection. But certainly, the same
        N.S. NANDIESHA REDDY v. KAVITHA MAHESH                                309
                    [A. S. BOPANNA, J.]

could not have been made the basis to conclude that the appellant was         A
not truthful.
        11. The extracted portion of the earlier order dated 15.06.2011
indicates an observation made by the learned Judge to indicate that he
has gone back on the version wherein he had stated that the last nomination
paper was received at 2.58 pm but later mentioned it was after 3.00 pm        B
and on being cautioned by the court he goes back to the earlier version
of 2.58 pm etc. On this aspect also we do not see any deliberate falsehood
uttered by the appellant, much less is there any inconsistency. The
statement made by the appellant was that he received the nomination
paper of Smt. Ambujakshi i.e. the last candidate at 2.58 pm and it had
taken him about 7-8 minutes to go through the papers, after which she         C
had to take an oath as stated in para-40 of his further cross-examination.
If that be the position, the statement would mean that the last nomination
paper of Smt. Ambujakshi was presented at 2.58 pm and when the process
was over it was past 3.00 pm. Only after that he had met the election
petitioner that is between 3 pm and 3.15 pm. Even with regard to the          D
statement that he had met the General Observer on three occasions and
later stated it was on two occasions are to be noted in the context that
the evidence was being tendered after more than three years and all
inconsequential events cannot be recalled with precision. The further
evidence of the appellant is referred in para 81 to 87 of the order, but
learned Judge has not pointed out any deliberate or intentional falsehood     E
arising therefrom. Mere reference to inconsistent statements alone is
not sufficient to take action unless a definite finding is given that they
are irreconcilable; one is opposed to the other so as to make one of them
deliberately false.
       12. Therefore, as noticed from the evidence recorded, the appellant    F
had stated that the nomination papers had not been presented to him
before the closing hours and had sought to justify his action. He had also
stated about the procedure followed in all cases and the presence of
observers in his office. On the other hand, the election petitioner had
contended that she had made an attempt to submit the nomination paper         G
which was not received by the appellant who was the Returning Officer.
When he had received 18 nomination papers on that day there was no
particular reason to refuse the election petitioner’s nomination, nor has
motive been suggested or established. The learned Judge has no doubt
accepted the version put forth by the election petitioner. That by itself
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310             SUPREME COURT REPORTS                            [2021] 8 S.C.R.


A     does not indicate that appellant had uttered falsehood intentionally and
      deliberately before the court so as to initiate action under Section 193
      Indian Penal Code. The proceedings of the day in the office of the
      Returning Officer, namely, the appellant was video-recorded and the
      same was marked as Exhibit P21 to P24 in the proceedings. The learned
      Judge did not choose to refer to the same to come to a definite conclusion
B
      as to whether the election petitioner had actually met the Returning
      Officer, if so, the actual time and in that context a finding was not recorded
      that the depiction in the video-recording is quite contrary to the statement
      of the Returning Officer so as to indicate that he had uttered deliberate
      falsehood.
C            13. Apart from the factual aspect noted above relating to the
      evidence tendered in the instant case, it is not a case where the appellant
      was a party-respondent to the election petition where his written version
      was available. On the other hand, he was examined as a witness by the
      election petitioner as PW3. No doubt the learned Judge has chosen to
D     call him as a court witness by interrupting the cross-examination and
      posing questions to him. Be that as it may, it was also not a situation
      where the petitioner had filed an application under Section 340 of Criminal
      Procedure Code, 1973 seeking action. If that was the case the appellant
      would have had an opportunity to file his version in reply to the application.
      That apart, the learned Judge also had not put the appellant on notice on
E     the allegation of committing perjury and provided him an opportunity nor
      has the learned Judge come to the conclusion that one of the versions is
      deliberate or intentional falsehood and that therefore, action is necessary
      to be taken against him. On the other hand, the learned Judge during the
      course of passing the final order has made certain observations and
F     directed that the Registrar General shall file a complaint.
           14. It is apposite to refer to the decision of this Court in the case
      of KTMS Mohammad and Another vs. Union of India, 1992 3 SCC
      178 wherein it is observed as hereunder: -
             “37. The mere fact that a deponent has made contradictory
G            statements at two different stages in a judicial proceeding is not
             by itself always sufficient to justify a prosecution for perjury under
             Section 193 IPC but it must be established that the deponent has
             intentionally given a false statement in any stage of the ‘judicial
             proceeding’ or fabricated false evidence for the purpose of being
H            used in any stage of the judicial proceeding. Further, such a
        N.S. NANDIESHA REDDY v. KAVITHA MAHESH                                   311
                    [A. S. BOPANNA, J.]

      prosecution for perjury should be taken only if it is expedient in         A
      the interest of justice.”
      Further, in the case of Amarsang Nathaji vs. Hardik
Harshadbhai Patel & Ors., 2017 1 SCC 113 relied on by the learned
counsel for the appellant, this Court on referring to the case of KTMS
Mohammad vs. Union of India (supra) has held as hereunder: -                     B
      “6. The mere fact that a person has made a contradictory statement
      in a judicial proceeding is not by itself always sufficient to justify
      a prosecution under Sections 199 and 200 of the Penal Code,
      1860 (45 of 1860) (hereinafter referred to as “IPC”); but it must
      be shown that the defendant has intentionally given a false                C
      statement at any stage of the judicial proceedings or fabricated
      false evidence for the purpose of using the same at any stage of
      the judicial proceedings. Even after the above position has emerged
      also, still the court has to form an opinion that it is expedient in the
      interests of justice to initiate an inquiry into the offences of false
      evidence and offences against public justice and more specifically         D
      referred to in Section 340 (1) CrPC, having regard to the overall
      factual matrix as well as the probable consequences of such a
      prosecution. The court must be satisfied that such an inquiry is
      required in the interests of justice and appropriate in the facts of
      the case.”                                                                 E
       15. The respondent-election petitioner has referred to the decisions
in the case of Mahavir Singh and Ors. vs. Naresh Chandra & Anr.
(AIR 2001 SC 134) and the case of Jagan Nath vs. Jaswant Singh &
Ors. (AIR 1954 SC 210) in her written submission. We however, do not
find any assistance from the same as they are not relevant.                      F
       16. In the light of the above stated facts, we are of the opinion
that notwithstanding the conclusion reached by the learned Judge on the
aspect of improper rejection of the nomination paper, the correctness of
which was not required to be gone into for the reasons stated supra, the
manner in which the learned Judge has concluded that the appellant in            G
C.A. No. 6171/2012 was inconsistent in his statements in the course of
his evidence tendered by him as PW3 is not justified. Further the
conclusion reached that he is to be prosecuted, without the findings being
recorded regarding deliberate or intentional falsehood cannot be sustained.
Hence the direction issued to the Registrar General of the High Court to
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312             SUPREME COURT REPORTS                             [2021] 8 S.C.R.


A     initiate the proceedings by lodging a criminal complaint also cannot be
      sustained in the facts and circumstances arising in this case.
             17. As noted from the decision in the case of Amarsang Nathaji
      (supra) and the position of law which is well established is that even in a
      case where the Court comes to the conclusion on the aspect of intentional
B     false evidence, still the Court has to form an opinion whether it is expedient
      in the interest of justice to initiate an inquiry into the offences of false
      evidence, having regard to the overall factual matrix as well as the probable
      consequences of such prosecution. The Court must be satisfied that
      such an inquiry is required in the interest of justice and is appropriate in
      the facts of the case. In that backdrop, insofar as the observation made
C     by the learned Judge of the election tribunal relating to the need for
      maintaining purity of the election process which is the heart and soul of
      democracy and in that situation the role of the Returning Officer being
      pivotal, we fully concur with the same. However, it is also to be noted,
      merely because of that position the Returning Officer in the instant case
D     need not be exposed to prosecution.
              18. Firstly, from the evidence as tendered, we did not see reason
      to permit the prosecution since in our opinion there is no intentional
      falsehood uttered. The other relevant facts also indicate that the factual
      matrix herein does not indicate that it is expedient in the interest of justice
E     to initiate an inquiry and expose the appellant to criminal prosecution.
      On this aspect it is to be noted that the instant case is not a case where
      the nomination paper which was complete in all respect was filed and it
      had been improperly rejected in the scrutiny stage. The allegation of the
      election petitioner is that the Returning Officer had refused to receive
      the nomination paper, which the learned Judge in the ultimate analysis
F     has accepted and termed the same as an improper rejection. Even that
      be so, to indicate that the non-acceptance alleged by the election petitioner
      was a deliberate action by the Returning Officer with a specific purpose,
      it has neither been pleaded nor proved in the course of the proceedings
      so as to penalise the appellant to face yet another proceeding. The
      Assembly Constituency concerned is a vast constituency which had nearly
G
      four lakh voters on the electoral rolls. The election petitioner had not
      placed material to indicate that she had contested in any earlier election
      or had wide support base in the election concerned and it is in that view
      she had been shut out from the contest. Further there is no allegation
      that the Returning Officer was acting at the instance or behest of any
H
         N.S. NANDIESHA REDDY v. KAVITHA MAHESH                                  313
                     [A. S. BOPANNA, J.]

other candidate who was feeling threatened by the participation of the           A
election petitioner in the election process.
        19. On the other hand, the election petitioner, as per her own case
was seeking to present the nomination paper which was incomplete and
even in that circumstance, she had come to the office of the Returning
Officer only at 2.00 pm on the last day for filing nomination which was          B
to close at 3.00 pm. Thereafter she made attempts to complete the
formalities in filling up the nomination paper and having failed had still
presented the nomination paper since according to her the needful could
have been done within 24 hours. In such a case it cannot be said that the
Returning Officer with an ulterior motive had declined to receive the
nomination paper and to cover up his folly was seeking to tender false           C
evidence before the Court and thereby to justify his illegal action. In
fact, the appellant had received the other nomination papers submitted
to him on the last day even as late as 2.58 pm. It is also the consistent
view of this Court that the success of a candidate who has won at an
election should not be lightly interfered with. In any event it ought not to
                                                                                 D
have been made the basis to initiate prosecution by terming the appellant
as unreliable witness. Further, we notice that the appellant was aged 59
years as on 15.06.2011 while recording his deposition and a decade has
passed by and now would be 69 years. As pointed out by the learned
counsel for the appellant, the appellant has retired from service about
eight years back. For all these reasons also, we find that any proceeding        E
against the appellant is also not expedient apart from not being justified.
        In the result, the following order: -
        (i) Civil Appeal No. 4821/2012 is disposed of as infructuous.
        (ii) Civil Appeal No. 6171/2012 is allowed. Consequently, the
                                                                                 F
             direction contained in para 175 of the impugned order to the
             Registrar General of the High Court to register the complaint
             against the appellant, the then Returning Officer before the
             competent court for proceeding in accordance with law for
             the purpose of provisions of Section 193 of the Indian Penal
             Code is set aside.                                                  G
        (iii) Parties to bear their own costs.
        (iv) Pending applications, if any, shall stand disposed of.


Nidhi Jain                                                Appeals disposed of.   H