Elected Pradhan challenged closure of his opportunity to cross-examine election petition witnesses and rejection of his recall application. The court held rejection as not maintainable was improper, set aside the impugned order, allowed one more opportunity to cross-examine and lead evidence, and directed conclusion within three months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2024:AHC:115662
Court No. - 33
Case :- WRIT - C No. - 4304 of 2024
Petitioner :- Dinesh Nishad Respondent :- State Of Up And 19 Others Counsel for Petitioner :- Abhishek Misra Counsel for Respondent :- Adya Prasad Tewari,C.S.C.
Hon'ble Chandra Kumar Rai,J.
i. to issue a writ order or direction in the nature of certiorari quashing the impugned order dated 02.02.2024 passed by Prescribed Authority/Sub Divisional Officer, Campiarganj, Gorakhpur by which the petitioner has been deprived to lead evidence.
ii. to issue any other writ order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
iii. to award cost of the instant petition to the petitioner.
"Heard learned counsel for the petitioner and learned Standing Counsel representing respondents no.1 to 4.
It is contended by learned counsel for the petitioner that on 09.01.2024, as the witnesses of the election petitioner did not turn up, the Prescribed Authority proceeded to close the evidence and fixed 12.01.2024 for argument.
An application was moved by the returned candidate/petitioner on 12.01.2024 that the witnesses of the election petitioner had not turned up due to which the opportunity for submitting the evidence by the returned candidate should not be closed, and he should be granted permission to place his evidence before the Prescribed Authority. The said application was dismissed by order dated 02.02.2024 without assigning any reason.
Learned counsel for the petitioner has further submitted that that the principle of natural justice requires that the opportunity of placing the oral testimony as well as documentary evidence should be given to the returned candidate before the election petition is decided.
Matter requires consideration.
Issue notice to respondents no.5 to 20.
Steps be taken by R.P.A.D. in addition to the normal mode of service, within 10 days.
List this matter on the date fixed in the notice.
Till the next date of listing, further proceedings of Election Petition No.2163 of 2021, which is pending consideration before respondent no.4, shall remain stayed."
the witnesses is violation of the Principle of Natural Justice, as such the impugned order dated 02.02.2024 is liable to be set-aside and petitioner be given opportunity to cross-examine the witnesses, which has been closed vide order dated 09.01.2024.
"Rule- 4 Hearing of the petition.- (1) Subject to the provisions of the Act and these rules, every election petition shall be tried by the Sub-Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, for the trial of suits:
Provided that-
(i) the Sub-Divisional Officer may hear the petitioner or his counsel and if he finds that the petition has no substance, reject the same without the issue of any notice to the opposite parties;
(ii) it shall not be necessary for Sub-Divisional Officer to record the evidence in full and he may maintain only a memorandum of evidence produced by the parties before him;
(iii) if there is a sole petitioner and he dies, or there is a sole respondent and he
dies, the petition shall abate;
(iv) the Sub-Divisional Officer may allow only such evidence to be produced as he deems relevant for the purpose of deciding the petition;
(v) the District Magistrate may at any stage on sufficient cause being shown transfer an application made under sub-section (1) of Section 12-C for hearing another Sub-Divisional Officer;
(vi) an application not presented within time unaccompanied by a treasury challan as required under sub-rule (1) of Rule 3 may at any time be dismissed by the Sub-Divisional Officer, and
(vii) the Sub-Divisional Officer may, on an application of either party made within five days after the date for his decision, review his order."
Order Date :- 18.7.2024 Neetu
Digitally signed by :- NEETU SINGH High Court of Judicature at Allahabad
1 issue framed by the court
Was the rejection of the recall application seeking restoration of the petitioner's closed opportunity to cross-examine witnesses in an election petition sustainable?
3 provisions across 3 enactments
Dinesh Nishad
State Of Up
Respondent No. 5 (defeated candidate)
Chandra Kumar Rai
As recorded by the court registry
2 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
