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IN THE HIGH COURT OF KARNATAKA, DHARWAD
Krishna S. Dixit, P. Krishna Bhat, JJ.
Election Commission Of India, Nirvachanasadan, Ashok Road, New Delhi – 110001. Represented By Its Secretary - Appellant
Versus
Shri. Ravishivappa Padasalagi @ Savadi, S/o Shivappapadasalagi - Respondents
OSA No.100001 of 2022
Decided On : 29-07-2022
Representation of People Act, 1951 - Section 80 , 87(1) - Indian Evidence Act, 1872 - Section 5 - Election Petition - Seeks to lay a challenge to order - Fill vacancies accruing because of aforesaid disqualification - Examining legality of Disqualification Orders - Postponement of Bye-Elections - Whether chief election commissioner or ex-chief election commissioner can be called as witness - Section 87(1) of 1951 Act provides that every election petition shall be tried as nearly as may be in accordance with procedure applicable under CPC 1908 to trial of suits (Para 4).
Findings of the Court: Election petition is tried by High Courts substantially in accordance with provisions of CPC, 1908 vide Section 87(1) and provisions of Indian Evidence Act, 1872 are deemed to apply to these proceedings vide 87(2) of 1951 Act. After pleadings are completed, issues have been framed in EP; additional issue relating to validity of postponement of election is also there. Section 5 of 1872 Act deals with right to produce evidence, in any suit or proceedings, relating to existence of non-existence of every fact in issue, and also to prove such other facts which may be declared relevant to fact in issue, by virtue of provisions contained in sections 6 to 55. Object of this section is to restrict investigation made by Courts within bounds prescribed by general convenience. Of no fact can evidence be given unless it is either a fact in issue or one declared under other sections. Thus, evidence of all collateral facts, which are incapable of affording any reasonable presumption as to principal matters in dispute, is precluded from production to save public time.
Result: Appeal succeeds.
ORDER :
1. This intra-court appeal seeks to lay a challenge to the order dated 17.06.2022 made in Election Petition No.100001/2020 pending on the file of a learned single Judge of this Court whereby subpoena has been issued to one Sri Sunil Arora, the Ex-Chief Election Commissioner of India. The operative portion of the order reads as under:
A copy of this order shall be furnished to Shri S.R.Dodawad, learned Standing Counsel for the Election Commission to co-ordinate in service of summons and appearance of the witness.
Shri. S.R. Dodawad, learned counsel submits that personal appearance of the witness causes hardship to him and avoidable expenses. In that event he can make his appearance virtually and depose.
The registry may also serve the summons through e-mail.”
2. This Court had directed emergent notice to the respondents vide order dated 22.06.2022 and had issued stay of subpoena in terms of subject application in I.A. No.2. After service of notice the contesting respondents have entered appearance through their counsel and opposed this appeal making submission in justification of the impugned order. Other respondents have chosen to remain unrepresented, despite service of notice.
3. BRIEF FACTS OF THE CASE:
(b) The Apex Court whilst examining the legality of the Disqualification Orders is said to have orally observed that the postponement of the Bye-Elections was desirable till after the final orders are passed on the pending challenge. This was on 26.09.2019. On 27.09.2019, the extension Notification was issued by the appellant-ECI by rescheduling the time lines prescribed under the aforesaid Election Notification dated 23.09.2019. The Apex Court vide Order dated 13.11.2019 dismissed W.P.No.992/2019 & connected matters and thereby upheld Speaker’s Orders that had disqualified 17 MLAs, however curtailing the duration of their disqualification.
(c) The appellant-ECI conducted the elections on 09.12.2019 in terms of amended notification dated 27.09.2019. The 2nd respondent herein was elected to the Legislative Assembly from 03-Athani Assembly Constituency. His election has been challenged by the 1st respondent in the subject Election Petition. One of the issues framed in the E.P. relates to power of the ECI to postpone the elections, once the same were notified.
(d) In order to prove the invalidity of postponement of elections in terms of additional issue framed in the Election Petition, an Interlocutory Application was moved before the Election Court for summoning ‘Sri Sunil Arora Ex-Chief Election Commissioner of India’ as a witness ‘to depose with regard to the circumstances and sufficient cause under which the notification dated 27.09.2019 was issued for extending time for filing the nomination…’. The said application having been favoured by the impugned order, the appellant-ECI is before this Court, with a request for leave to prosecute the Appeal.
4. Having heard the learned counsel for the parties and having perused the appeal papers, we are inclined to grant indulgence in the matter for the following reasons:
(i) The entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, co
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