Supreme Court Rules 2013 - Order XXXIX | Order 39

 Supreme Court Rules 2013 and Supreme Court Rules 1966 (Repealed) 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

Supreme Court Rules 2013: 

Order XXXIX

Applications For Transfer Of Criminal Proceeding Under Section 406 Of The Criminal Procedure Code, 1973 And Section 11 Of The Terrorist Affected Areas (Special Courts) Act, 1984

1. Every petition for transfer under section 406 of the Code of Criminal Procedure, 1973 or under section 11 of the Terrorist Affected Areas (Special Courts) Act, 1984 shall be in writing. It shall set out concisely in separate paragraphs the facts and particulars of the case, the relief sought and the grounds therefor and shall be supported by an affidavit or affirmation.

2. The petition shall be posted before the Court for preliminary hearing and orders as to issue of notice. Upon the hearing the Court, if satisfied that no prima facie case for transfer has been made out or that the petition is otherwise not tenable, shall dismiss the petition; and if upon such hearing the Court is satisfied that a prima facie case for granting the petition is made out, it shall direct that notice be issued to the respondent to show cause why the order sought for should not be made; such notice shall be given to the accused person where he is not the applicant, to the respondent State and to such other parties interested as the Court may think fit to direct.

3. The notice shall be served not less than twenty-one days before the date fixed for the final hearing of the petition. Affidavits in opposition shall be filed in the Registry not later than four days before the date appointed for hearing and the affidavit in reply shall be filed not later than 2 p.m. preceding the day of the hearing of the petition. Copies of affidavits in opposition and in reply shall be served on the opposite party or parties and the affidavits shall not be accepted in the Registry unless they contain an endorsement of service signed by such party or parties.

4. Where the petition is dismissed the Court, if it is of opinion that the application was frivolous or vexatious, may order the applicant to pay by way of compensation to any person who has opposed the application such sum as it may consider proper in the circumstances of the case.

Supreme Court Rules 1966: 

ORDER XXXIX

ELECTION PETITIONS UNDER PART III OF THE PRESIDENTIAL

AND VICE-PRESIDENTIAL ELECTIONS ACT, 1952 (31 OF 1952)

1. In this Order, unless the context or subject-matter otherwise requires:-

(a) ‘the Act’ means the Presidential and Vice-Presidential Elections

Act, 1952;

(b) the words defined in sections 2 and 13 of the Act shall have the

respective meanings assigned to them by those sections.

2. An application calling in question an election shall only be by a petition

made and presented in accordance with the provisions of this Order.

1. Ins. by G.S.R. 322, dated 14th April, 1983 (w.e.f. 23-4-1983).

2. Ins. by G.S.R. 307, dated 1st August, 2000 (w.e.f. 12.8.2000).

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3. The petition shall be made on a Court-fee stamp of the value of rupees

two hundred and fifty and shall be signed by the petitioner, or all the petitioners, if

there are more than one, or by a duly authorised advocate on record of the Court,

on his or their behalf.

4. The petition shall be divided into paragraphs, numbered consecutively, each

paragraph being confined to a distinct portion of the subject, and shall be printed

or typed legibly on one side of standard petition-paper, demy-foolscap size, 1

[or of

the size of 29.7 c.m. x 21 c.m.] or on paper of equally superior quality.

5. The petition shall state the right of the petitioner under the Act to

petition the Court and briefly set forth the facts and grounds relied on by him

to sustain the relief of reliefs claimed by him.

6. The allegations of fact contained in the petition shall be verified by an

affidavit to be made personally by the petitioner or by one of the petitioners, if more

than one:

Provided that where the petitioner is unable to make such affidavit by reason

of absence, illness or other sufficient cause it may with the sanction of the Judge in

Chambers to be given at the time of the presentation of the petition, be made by

any person duly authorised by the petitioner and competent to make the same.

2

[7. A petition calling in question an election may be presented on one or more

of the grounds specified in sub-section (1) of section 18 and section 19 of the Act,

by any candidate at such election, or

(i) in the case of Presidential election, by twenty or more electors

joined together as petitioners;

(ii) in the case of Vice-Presidential election, by twenty or more electors

joined together as petitioners.]

3

[7A. Every petition calling in question an election shall bear a certificate from

an Advocate designated as Senior Advocate to the effect that the petition discloses

one or more substantial questions for challenging the election of the President or

the Vice-President as the case may be.]

1. Ins. by G.S.R. 410, dated 26th February, 1968 (w.e.f. 26-2-1968).

2. Subs. by G.S.R. 1350, dated 11th December, 1974 (w.e.f.21-12-1974).

3. Ins. by G.S.R. 407, dated 9th December, 1997 (w.e.f. 20-12-1997).

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THE SUPREME COURT RULES, 1966

8. Where the petitioner claims a declaration under clause (a) of section 16 of

the Act, he shall implead the returned candidate as the respondent, and where he

claims a declaration under clause (b) of the said section, he shall implead as

respondents all candidates, other than himself, duly nominated at the election.

9. The petition may be presented at any time after the date of publication of

the declaration containing the name of the returned candidate at the election under

Section 12 of the Act, but not later than thirty days from the date of such publication.

10. The presentation of the petition shall be made by delivering it to the

Registrar of the Court in his Chambers in the Court House, unless it is

presented before the Judge in Chambers under rule 6.

11. The petitioner shall also lodge, along with the petition, at least twelve

copies of the petition and of all documents which accompany it.

1

[12. Upon the presentation of the petition, the petitioner, shall deposit a

sum of Rupees Twenty thousand in cash/by bank draft with the Registrar or

officer nominated by him as Security for the payment of all costs that may become

payable by the petitioner.]

2

[12A. The petitioner presenting a petition shall be represented by an advocate

and in case it is so necessary the Court may direct that legal aid be provided to the

petitioner.]

2

[13. Upon presentation of a petition the same shall be posted before a bench

of the Court consisting of five Judges for preliminary hearing and orders for service

of the petition and advertisement thereof as the Court may think proper and also

appoint a time for hearing of the petition. Upon preliminary hearing, the Court, if

satisfied, that the petition does not deserve regular hearing as contemplated in Rule

20 of this Order may dismiss the petition or pass any appropriate order as the Court

may deem fit.]

14. Unless otherwise ordered, the notice of the presentation of the petition,

accompanied by a copy of the petition, shall within five days of the presentation

thereof or within such further time as the Court may allow, be served by the

petitioner or his advocate on record on the respondent or respondents, the

1. Rule 12 deleted by G.S.R. 466, dated 22nd June, 1983 (w.e.f. 2-7-1983) and Ins. by G.S.R.

407, dated 9th December, 1997 (w.e.f. 20-12-1997).

2. Ins. & Subs. by G.S.R. 407 dated 9th December, 1997 (w.e.f. 20-12-1997).

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THE SUPREME COURT RULES, 1966

Secretary to the Election Commission, the Returning Officer and the AttorneyGeneral for India. Such service shall be effected personally or by registered post,

as the Court or Registrar may direct. Immediately after such service the petitioner

or his advocate on record shall file with the Registrar an affidavit of the time and

manner of such service.

15. Unless dispensed with by the Judge in Chambers or the Registrar, as the

case may be, notice of the presentation of the petition shall be published in the

Official Gazette and also advertised in newspapers at the expense of the petitioner

or petitioners, fourteen clear days before the date appointed for the hearing thereof

in such manner as the Court or the Registrar may direct.

16. Every elector shall on payment of the usual fees, be entitled within

twenty-four hours after such payment, to be furnished by the petitioner or his

advocate on record with a copy of the petition and of the affidavit in verification

thereof and shall also be entitled upon payment of the prescribed fees to obtain

copies from the Court.

17. A person on whom the notice of the presentation of the petition has been

served or any other candidate or an elector who intends to appear on the hearing

of the petition shall leave with, or send by registered post to, the petitioner or his

advocate on record, notice of such intention signed by him or his advocate on record,

if any. Such notice shall be served or if sent by registered post, shall be posted in

time to reach the addressee not later than two clear days before the day appointed

for the hearing of the petition. No person who has failed to comply with this rule

shall be allowed to appear on the hearing of the petition without the leave of the

Court.

18. An affidavit intended to be used by a person other than the petitioner either

in support of the petition or in opposition to the same shall be filed not less than

five days before the date fixed for the hearing thereof and notice of the filing thereof

shall be given to the petitioner or his advocate on record on the day on which the

affidavit is filed. If any person fails to comply with this rule the affidavit, unless the

Court otherwise directs, shall not be used at the hearing of the petition.

19. An affidavit intended to be used in reply to an affidavit filed in opposition

to, or in support of the petition shall be filed not less that two days before the date

fixed for the hearing of the petition. Notice of such filing shall be given forthwith to

the person by whom the affidavit in opposition to, or in support of the petition, as

the case may be, was filed or to his advocate on record.

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THE SUPREME COURT RULES, 1966

20. Every petition calling in question an election shall be posted before and

be heard and disposed of by a Bench of the Court consisting of not less than five

Judges.

21. The petition shall not be withdrawn, save with the leave of the Court to

be obtained upon application made for the purpose by notice of motion.

22. Where there are more petitioners than one, no application to withdraw

a petition shall be made except with the consent of all the petitioners given in

writing.

23. An application for leave to withdraw a petition which has been advertised

in accordance with the provisions of rule 15 shall not be heard at any time before

the date fixed in the advertisement for the hearing of the petition.

24. No application for withdrawal shall be granted if in the opinion of the Court

such application has been induced by any extraneous or improper bargain or

consideration.

25. When a petitioner applies for leave to withdraw his petition or asks

that it be dismissed or that the hearing thereof be adjourned without mentioning

sufficient cause or fails to appear in support thereof or if appearing does not apply

for an order in terms thereof or if for any other sufficient reason the Court thinks so

to do, the Court may, upon such terms as it thinks just, make an order permitting

the petitioner to withdraw or striking off the petitioner from the petition and may,

upon such terms as it thinks just, substitute as petitioner any other candidate or any

other elector or body of electors who in its opinion would have a right to present a

petition and is desirous of prosecuting the petition already admitted.

26. If no order for substitution of a new petitioner or petitioners be made by

the Court under the rules but the Court only permits the withdrawal of the petition,

or strikes off the petitioner or petitioners from the petition, notice of the order of

withdrawal of the petition or striking off the petitioner or petitioners shall be published

by the Registrar in the Official Gazette and in the newspapers in which the original

petition had been advertised under rule 15 and the Court may, on the application

made within fourteen days of the publication of such notice in the Official Gazette

by any other candidate or 1

[in the case of Presidential election, another twenty

electors, and in the case of Vice- Presidential election another ten electors who might

himself or themselves have been a petitioner or petitioners make an order upon such

1. Ins. by G.S.R. 1350 dated 11th December, 1974 (w.e.f. 21-12-1974).

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THE SUPREME COURT RULES, 1966

terms as it thinks fit, substituting such petitioner or] petitioners in place of the petitioner

or petitioners withdrawing or not appearing at the hearing or not proceeding with

the petition. If no such application is made within the time aforesaid or, if made, the

Court does not think fit to grant the same, the original petition shall stand dismissed.

27. Where the Court allows a candidate or any elector or body of electors to

be substituted as petitioner or petitioners under rule 25 or rule 26, the Court shall

appoint a date for the hearing of the petition and such substituted petitioner or

petitioners shall within seven days from the making of the order file a clean copy of

the petition with such consequential amendments as may be necessary by reason of

the order of substitution therein and shall also file an affidavit verifying such

amendments. The amended petition shall be treated as the petition for calling in

question the election.

1

[28. Upon hearing the application for withdrawal or at the time of making an

order for substitution, the Court may, if it thinks fit, by order direct that the amount

deposited by the original petitioner or petitioners as security from the costs of the

respondent be applied in payment of the costs incurred by him up to the date of

the substitution of the new petitioner or petitioners, so far as it may be necessary,

and the balance. If any, shall be refunded to the original petitioner or petitioners

within seven days from the date of the order of substitution or such further time as

the Court may allow.]

1

[29. Unless otherwise ordered by the Court, the substituted petitioner or

petitioners shall deposit with the Registrar a sum of Rupees Twenty thousand as

and by way of security for the costs of the respondents.]

30. An election petition shall abate by the death of a sole petitioner or in case

of several petitioners on the death of the survivor of them:

Provided that there shall be no abatement after the hearing of the petition

has been concluded.

1

[31. The abatement of a petition shall not affect the liability of the amount

deposited by the petitioner as security for costs or the estate of the petitioner or

petitioners for the payment of costs previously incurred.]

32. On the abatement of a petition under rule 30, notice of such abatement

1. Rule 28, 29 and 31 deleted by G.S.R. 466, dated 22nd June, 1983 (w.e.f. 2-7-1983) and

Ins. by G.S.R. 407, dated 9th December, 1997 (w.e.f. 20-12-1997).

108

THE SUPREME COURT RULES, 1966

having taken place shall be published by the Registrar in the Official Gazette and

the newspapers in which the original petition had been advertised and the Court

may on the application made within fourteen days of the publication of such notice

in the Official Gazette by any other candidate or body of electors who might have

been a petitioner or petitioners as the case may be make an order, upon such terms

as it thinks fit, substituting him or them in the place of the original petitioner or

petitioners and the procedure prescribed in rule 27 and the provisions of rule 29

shall apply in relation to the substituted petitioner or petitioners.

33. If before the conclusion of the hearing of an election petition any contesting

respondent dies or gives notice that he does not intend to oppose the petition and

there is no other respondent who is opposing the petition, the Registrar shall cause

a notice of such facts to be published in the Official Gazette and the newspapers in

which the original petition had been advertised and any candidate or 1

[in the case

of Presidential election, twenty electors, and in the case of Vice-Presidential election,

ten electors who might have been a petitioner] or petitioners may, within fourteen

days after such publication, apply to be substituted in the place of the respondent

dying or not proceeding with his opposition to oppose the petition and the Court

may make such order upon such terms as it thinks fit.

34. Subject to the provisions of this Order or any special order or directions

of the Court, the procedure on an election petition shall follow, as nearly as may

be, the procedure in proceedings before the Court in the exercise of its original

jurisdiction.

35. At the conclusion of the hearing of the election petition, the Court shall

make an order at once or on some future day of which due notice shall be given by

the Registrar to all persons who appeared at the hearing of the petition.

1

[35A. Soon after the conclusion of the hearing of the petition, the Registrar

shall submit a statement to the Court showing the Court-fees and other expenses

incurred by each party to the petition and the total number of days of hearing of the

petition.

35B. At the time of passing the final order under rule 35, the Court shall also

make an order fixing the total amount of costs payable and shall further direct by

and to whom the said costs shall be paid.]

36. After the order of the Court has been announced, the Registrar shall send

1. Ins. by G.S.R. 1350, dated 11th December, 1974 (w.e.f. 21-12-1974).

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THE SUPREME COURT RULES, 1966

a copy thereof to the Central Government for publication in the Official Gazette