Sri Modugala Venugopala Reddy vs Jayadev Galla
2023 Latest Caselaw 5155 AP

  THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

                     I.A. No.2 of 2023
                             In
                     E.P.No.2 of 2019
ORDER:

Heard Sri V.R.N. Prasanth, learned counsel for the

petitioner and Sri B. Adinarayana Rao, learned Senior

Counsel for Sri M. Balaji, learned Counsel for the contesting

respondent No.1.

2. The election petitioner had examined himself as

P.W.1. In the course of the examination, he has marked

certain Form-17(c) part-I, Form 17(C) part-II and Form 20

as exhibits in the petition. These were marked subject to

the objection raised by the learned senior counsel for

respondent No.1. The election petitioner was also cross

examined and the evidence of the election petitioner has

been closed.

3. The present application has now been filed to

summon the District Election Officer/District Collector,

Guntur to appear before this Court and to produce the

entire Form-C part-I and part-II and Form-20 of all the

seven assembly constituencies forming part of the Guntur

parliamentary constituency. This application is filed on the

ground that certain doubts have been raised, in the cross

examination of PW1, in relation to the above forms on the

ground that the said forms relate to the elections to the

Legislative Assembly Constituencies, and not to the Guntur

Parliamentary Constituency. The election petitioner

contends that it is just and necessary to summon the said

documents to obviate any ground of doubt/confusion on

the same and to examine the same for comprehensive

adjudication of the matter.

4. Sri V.R.N.Prasanth, learned counsel appearing

for the election petitioner submits that, though this

application was filed is an application under Order XVI,

Rule 1, it could also be treated as an application under

Order XVI Rule 14 of C.P.C and that the Election Officer

should be summoned as a Court witness. Sri

V.R.N.Prasanth relying upon the judgments in

Basanagouda vs. Dr. S.B. Amarkhed and Others1, Shaik

Mohammed Umar Saheb vs. Kaleskar Hasham Karimsab

and Others2, Pratap Singh vs. Rajinder Singh and

Another3, R.M. Seshadri vs. G.Vasanta Pai4, National

Insurance Co. Ltd & Others vs. M/s.Suru Sea Foods5 and

(1992) 2 SCC 612

(1969)1 SCC 741

(1975) 1 SCC 535

MANU/SC/0529/1968::40 E.L.R.303

2005(1) A.P.L.J.71(HC)

Pradeep Manoj Farms Pvt.Ltd & Others vs. Duggirala

Vidya Sagar Rao and Ors6., would contend that this Court

has ample power to summon the District Election Officer as

a Court witness and to examine him along with the

documents produced by him. He submits that Form-17(c)

part-I, Form 17(C) part-II and Form 20 are necessary to

show that the discrepancies in these forms are sufficient to

demonstrate widespread manipulations in the casting of

ballots by the voters and that the said manipulations vitiate

the entire election process. In such circumstances, he

contends that, following the aforesaid judgments, it is just

and necessary for this Court to summon the said

documents.

5. Sri. B. Adinarayana Rao, the learned senior

counsel appearing for respondent No.1 contends that the

present application is not maintainable; the Hon'ble

Supreme Court in Mange Ram vs. Brij Mohan and

Others7 had held that the assistance of the Court for

summoning a witness can be obtained only where the said

witness has already been included in the list of witnesses

which is to be filed at the time of filing of the case; the

MANU/TL/0391/2023

(1983) 4 SCC 36

election petitioner having marked a few of the documents

(subject to objection) is now seeking to expand the scope of

the election petition by calling upon this Court to conduct a

roving enquiry by summoning all the forms for the entire

election; there can be no complaint with the contention that

this Court has ample power to summon witnesses or

documents; the said power would have to be exercised in

accordance with the principles laid down in the case of

Basanagouda vs. Dr. S.B. Amarkhed and Others, the said

discrepancies would not extend to helping out the petitioner

to make out his case and overcome the dues raised in the

cross examination; the petitioner being barred from seeking

assistance of this Court to summon the District Election

Officer as he was not shown in the list of witnesses, cannot

seek to summon him as a court witness under Order 16

Rule 14 and finally this Court in its order in I.A.No.1 of

2023 had recorded the fact that the pleadings in the

election petition did not set out the actual number of votes

in relation to the polling booths or voting machines in

polling booths from which 17(c) forms had been placed

before this Court and marked by P.W.1 and consequently

no case is made out for summoning the said documents.

6. In reply, Sri V.R.N.Prasnath would submit that

though the prayer is for summoning all the 17(c) forms and

20 forms, he is restricting his prayer to the said forms

whose copies have been marked as exhibits in the election

petition.

7. There is no doubt that this Court has ample

power to summon witnesses or documents as Court

witnesses and to mark documents through such court

witnesses. However, the said power has to be exercised only

where the circumstances or conditions require the exercise

of such power.

8. In the present case, the election petitioner had

marked certain form 17 (c) part-I, Form 17 (c) part-II and

Form 20 to demonstrate that there were discrepancies in

the number of votes polled in the polling booths as opposed

to the number of votes counted on the day of counting. The

petitioner now contends that some doubts have been raised

on account of the cross examination of the petitioner and

these doubts pertain to the question of whether the forms

marked by the election petition relate to the elections to the

Guntur Parliamentary Constituency or to the simultaneous

elections held in the assembly segments constituting such

Parliamentary Constituency. On that basis, this application

has been filed to summon the originals from the District

Election Officer.

9. The pleadings in the application show that the

assistance of this Court is sought to obviate doubts raised

in such cross examination. The power under Order XVI

Rule 4 of C.P.C cannot be invoked to help the petitioner to

get over any doubts that may have been raised in the

course of the cross examination of the witnesses. That

power is to be used where the Court is of the opinion that

it has summon witnesses or documents for a better

understanding of this case and for a comprehensive

disposal of the dispute before the Court.

10. As this Court does not find any such reason or

ground made out by the petitioner, this application is

dismissed.

11. Hence, this application is dismissed.

___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : .10.2023 RJS

THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

I.A. No.2 of 2023 In E.P.No.2 of 2019

Date : .10.2023

RJS