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'Constitutional Functionaries Can't Be Summoned As Witnesses On Mere Asking': Karnataka High Court Quashes Subpoena Qua Ex-Chief Of ECI

Mustafa Plumber
4 Aug 2022 10:55 AM GMT
Election commission of India, bye-elections, Madhya Pradesh high court, competent, Chief Justice Mohammad Rafiq and Justice Vijay Kumar Shukla,

The Karnataka High Court has "set at naught" a single bench order summoning Ex-Chief Election Commissioner of India, Sunil Arora, as a witness in an Election Petition calling in question the election of BJP candidate Mahesh Kumatalli from Athani Assembly Constituency in 2019.

A division bench of Justices Krishna S Dixit and P. Krishna Bhat observed,

"Ordinarily, in civilised jurisdictions functionaries of the constitutional bodies are not subjected to subpoena. Since they have to act and take significant decisions in the discharge of duties fearlessly. Otherwise, they run the fear of being called as witnesses and that may push them to defensive mode affecting public interest."

The summons were issued in light of an additional issue framed in the election petition relating to validity of postponement of the election. The respondent (original petitioner) had sought Arora's presence as a witness to depose with regard to the circumstances under which the notification was issued for extending time for filing the nomination.


At the outset, the Bench observed that what were the facts & circumstances that lead to issuance of the notification postponing the elections cannot be the subject matter of oral evidence of the Commissioners of the Election Commission of India which is a multi-member body, and which takes institutional decisions.

"The circumstances that resulted into issuance of the subject notification has to be gathered from the official records of the Commission. A very strong case has to be made out for summoning the members or ex-members of constitutional bodies."

It added,

"It hardly needs to be stated that subpoening an official as witness is one thing and summoning of official records, is another. In the former, the exercise of power is circumscribed depending upon the constitutional status and 14 function of the person concerned and in the latter, it is not. It is all a matter of discretion and prudence of the Court."

The court said that it is always open to parties to the election petition to seek an order to summon the records or copies thereof even from the Election Commission of India. However, "Constitutional functionaries or ex-functionaries cannot be summoned as witnesses just for askance."

It continued,

"The contention that these functionaries do not figure in the "Exemption Class" earmarked by CPC is too feeble a ground for issuing subpoena to them. Ordinarily the provisions of law that carve out an "Exempted Class of Subpoena" do not intend to make such class exhaustive in the sense that all those de hors the class can be summoned as witness at askance. In matters like these a host of factors figure for consideration."

Significantly, the Respondents contended that no intra-court appeal lies in the absence of such a right being granted by the Representation of the People Act, 1951.

However, the bench emphasized that Section 4 of the Karnataka High Court Act, 1961 provides for appeal from a judgment, decree order or sentence passed by a single Judge in the exercise of the "original jurisdiction" under the Act or "under any law" for the time being in force.

"Therefore, the right availing under Section 4 of 1961 Act is not diluted by the appeal provision in 1951 Act the non-obstinate clause enacted therein notwithstanding...In matters like this, the word 'order' employed in the above provision has to be liberally construed consistent with the requirement of doing justice to the aggrieved. An argument to the contrary, would defeat the very object of such a provision the same proving to be only a dead letter of law in black print and therefore, cannot be countenanced."

So far as the leave to appeal granted to ECI is concerned, the Court reiterated that Election Commission as a party to the election disputes is deprecated and since election disputes are conducted in a special jurisdiction created by statute- , therefore, persons other than who are contemplated under Section 82 of the Act cannot be joined as parties.


Case No: OSA No.100001 OF 2022

Citation: 2022 LiveLaw (Kar) 304

Date of Order: 29TH DAY OF JULY, 2022

Appearance: Advocate SHARATH DODWAD, FOR Advocate MRUTUNJAY HALLIKERI, for appellant; Advocate BALAKRISHNA SHASTRY, a/w advocate CHETAN MUNNOLI, FOR R2; Advocate SHIVARAJ BELLAKKI, FOR R1.

Click Here To Read/Download Order

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