ADMINISTRATION AND CONDUCT DURING ELECTION PERIOD
44E. (1) During the period after the publication of a notification under Article 11 and the expiration of fifteen days after the declaration of the result of the election by the Returning Officer under Article 39, no-
139[(aa) Divisional Commissioner;
(aaa) Metropolitan Police Commissioner;]
(b) Deputy Commissioner,
(c) Superintendent of Police, or
(d) Officer subordinate to any of them serving in the 140[division, district or metropolitan area] concerned, shall be transfered to any place without prior consultation with the Commission.
141[(2) When it appears necessary to transfer any employee of any department of the Government or of any other organisation in the interest of fair election, the Commission may request the concerned authority in the matter in writing and such transfer shall have to be made effective as soon as possible on receipt of such request from the Commission.]
(3) No person whose name appears in a panel prepared under Article 9 shall be transfered outside the district without the prior approval of the Returning Officer till the polls are taken.
(4) All persons mentioned in clause (1) shall render all such assistance and help as may be required by the Returing Officer for the purposes of the election.]
[Omitted]Omitted by section 6 of the Representation of the People (Second Amendment) Ordinance, 1978 (L of 1978).]
142[49. (1) No election shall be called in question except by an election petition presented by a candidate for that election in accordance with the provisions of this Chapter.
(2) An election petition shall be presented to the High Court Division within such time as may be prescribed.
(3) An election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
(4) At the time of presenting an election petition, the petitioner shall deposit in the High Court Division in accordance with the rules of the High Court Division a sum of 143[Taka five thousand] as security for the costs of the petition.]
- The petitioner shall join as respondents to his election petition-
(a) all contesting candidates; and
(b) any other candidate against whom any allegation, if any, of any corrupt or illegal practice is made 144[. ]
145[* * *]
Explanation In this Article and in the following provisions of this Chapter, “corrupt or illegal practice” means a “corrupt practice” or an “illegal practice” within the meaning of Chapter VI.
- (1) Every election petition shall contain-
(a) a precise statement of the material facts on which the petitioner relies;
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and
(c) the relief claimed by the petitioner.
(2) A petitioner may claim as relief any of the following declarations, namely-
(a) that the election of the returned candidate is void;
(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or
(c) that the election as a whole is void.
(3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings.
[Omitted]52. [Omitted by section 21 of the Representation of the People (Amendment) Act, 2001 (Act No. LVII of 2001).]
[Omitted]53. [Omitted by section 21 of the Representation of the People (Amendment) Act, 2001 (Act No. LVII of 2001).]
[Omitted]54. [Omitted by section 21 of the Representation of the People (Amendment) Act, 2001 (Act No. LVII of 2001).]
[Omitted]55. [Omitted by section 21 of the Representation of the People (Amendment) Act, 2001 (Act No. LVII of 2001).]
[Omitted]56. [Omitted by section 21 of the Representation of the People (Amendment) Act, 2001 (Act No. LVII of 2001).]
- (1) Subject to the provisions of this Order and the rules, every election petition shall be tried, as nearly as may be, in accordance with the procedure for the trial of suits under the Code of Civil Procedure, 1908:
Provided that the High Court Division may-
(a) make a memorandum of the substance of the evidence of each witness as his examination proceeds unless it considers that there is special reason for taking down the evidence of any witness in full; and
(b) refuse to examine a witness if it considers that his evidence is not material or that he has been called on a frivolous ground for the purpose of delaying the proceedings.
(2) Subject to the provisions of this Order the Evidence Act, 1872, shall apply for the trial of an election petition.
(3) The High Court Division may, at any time, upon such terms and on payment of such fee as it may direct, allow a petition to be amended in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions at issue, so however that no new ground of challenge to the election is permitted to be raised.
(4) At any time during the trial of an election petition, the High Court Division may call upon the petitioner to deposit such further sum by way of security, in addition to the sum deposited under Article 49, as it may think fit.
146[(5) The High Court Division shall not adjourn the trial of an election petition for any purpose unless such adjournment is in its opinion necessary in the interest of justice.
(6) The High Court Division shall try an election petition as expeditiously as possible and shall endeavour to conclude the trial within six months from the date on which the election petition is 147[presented] to it for trial 148[.]
149[* * *]]
- The High Court Division shall dismiss an election petition, if-
(a) the provisions of 150[Article 49 or] Article 50 or Article 51 have not been complied with; or
(b) the petitioner fails to make the further deposit required under clause (4) of Article 57.
[Omitted]59. [Omitted by section 24 of the Representation of the People (Amendment) Act, 2001 (Act No. LVII of 2001).]
- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no document shall be inadmissible in evidence at the trial of an election petition only on the ground that it is not duly stamped or registered.
(2) No witness shall be excused from answering any question as to any matter in issue, or relevant to a matter in issue, in the trial of an election petition upon the ground that the answer to such question may incriminate or tend to incriminate him or that it may expose or tend to expose him to penalty or forfeiture but no witness shall be required or permitted to state for whom he has voted at an election.
(3) A witness who answers truly all questions which he is required to answer shall be entitled to receive a certificate of indemnity from the High Court Division and answer given by him to a question put by or before the High Court Division shall not, except in the case of any criminal proceeding for perjury in respect of his evidence be admissible in evidence against him in any civil or criminal proceedings.
(4) A certificate of indemnity granted to any witness under clause (3) may be pleaded by him in any Court and shall be a full and complete defence to or upon any charge under Chapter IXA of the Penal Code or under this Order arising out of the matter to which such certificate relates but it shall not be deemed to relieve him from any disqualification in connection with an election imposed by any law for the time being in force.
(5) The reasonable expenses incurred by any person in attending to give evidence may be allowed to him by the High Court Division and shall, unless the High Court Division otherwise directs, be deemed to be part of the costs.
- (1) Where in an election petition a declaration is claimed that a candidate other than the returned candidate has been duly elected, the returned candidate or any other party may produce evidence to prove that the election of such other candidate would have been declared void had he been the returned candidate and had a petition been presented calling his election in question:
Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within the fourteen days next following the commencement of the trial, given notice to the High Court Division of his intention so to do and has also deposited the security referred to in Article 49.
(2) Every notice referred to in clause (1) shall be accompanied by a statement of the case, and all the provisions relating to the contents, verification, trial and procedure of an election petition, or to the security deposit in respect of an election petition shall apply to such a statement as if it were an election petition.
- (1) The High Court Division may, upon the conclusion of the trial of an election petition, make an order-
(a) dismissing the petition;
(b) declaring the election of the returned candidate to be void;
(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or
(d) declaring the election as a whole to be void.
(2) Save as provided in clause (3), the decision of High Court Division on an election petition shall be final.
151[(3) Any person aggrieved by a decision of the High Court Division may, within thirty days of the announcement of the decision, appeal to the Appellate Division, if it grants leave to appeal.]
- (1) The High Court Division shall declare the election of the returned candidate to be void if it is satisfied that-
(a) the nomination of the returned candidate was invalid; or
(b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or
(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent; or
152[(e) The returned candidate has spent more money than what is allowed under Article 44B(3).]
(2) The election of a returned candidate shall not be declared void on the ground
(a) that any corrupt, or illegal practice has been committed if the High Court Division is satisfied that it was not committed by, or with consent or connivance of, that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission; or
(b) that any of the other contesting candidates was, on the nomination day, not qualified for, or was disqualified from, being elected as a member.
- The High Court Division shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the High Court Division is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected.
- The High Court Division shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of-
(a) the failure of any person to comply with the provisions of this Order and the rules; or
(b) the prevalence of extensive corrupt or illegal practice at the election.
- (1) Where, after the conclusion of the trial, it appears that there is an equality of votes between two or more contesting candidates, and the addition of one vote for one such candidate would entitle him to be declared elected, the High Court Division shall so inform the Commission. In the event that no appeal is filed against the decision of the High Court Division, the Commission shall, after expiry of the period specified for the filing of an appeal, direct a fresh poll to be taken in respect of the said candidate, and fix a date for such poll, but otherwise, the Commission shall await the result of the appeal and shall act as above only if the decision of the High Court Division is uphold in appeal on all points.
(2) All the provisions of this Order relating to polling, counting of votes, preparation of ballot paper account declaration of result and preservation and inspection of documents shall apply to the fresh poll as at an election held under the provisions of this order.
153[67. (1) The High Court Division shall, as soon as possible after the conclusion of the trial of an election petition, intimate the substance of its decision to the Commission and shall, as soon as may be, send to the Commission an authenticated copy of its order.
(2) As soon as may be after the receipt of any order made by the High Court Division under Article 62, the Commission shall publish it in the official Gazette.
(3) An order made by the High Court Division under Article 62 shall take effect on the date on which it is made.]
- 154[(1) An election petition may be withdrawn by leave of the High Court Division].
(2) Where leave is granted by the High Court Division, the petitioner shall be ordered to pay the costs incurred by the respondents to the election petition or such portion thereof as the High Court Division may direct.
- (1) An election petition shall abate on the death of a sole petitioner or of the sole survivor of several petitioners.
155[(2) Where an election petition abates under clause (1), notice of the abatement shall be given by the High Court Division to the Commission.]
- If, before the conclusion of the trial of an election petition, a respondent dies or gives notice in the prescribed form that he does not intend to contest the petition, and no respondent remains to contest the petition, the High Court Division shall, without any further hearing, or after giving such persons as it may think fit an opportunity of being heard, decide the case ex parte.
- Where, at any stage of the trial of an election petition, no petitioner makes an appearance, the High Court Division may dismiss the petition for default, and make such order as to costs as it may think fit.
- (1) The High Court Division shall, when making an order under Article 62, also make an order determining in its discretion the costs and specifying the persons by and to whom such costs are to be paid.
(2) If, in any order as to costs under clause (1), there is a direction for the payment or costs by any party to any person, such costs shall, if they have not already been paid, be payable in full, and shall upon application in writing in that behalf made to the High Court Division within six months of the order by the person to whom costs have been awarded, be paid, as far as possible, out of the security for costs deposited by such party.
(3) Where no costs have been awarded against a party who has deposited security for costs, or where no application for payment of costs has been made within the aforesaid six months, or where a residue remains after costs have been paid out of the security, such security or the residue thereof, as the case may be, shall, upon application in writing therefor by the person who made the deposit or by his legal representative, be returned by the High Court Division to the person making the application.
(4) Any order for costs may be enforced upon application in writing made to the principal civil Court of original jurisdiction of the district in which the person from whom the costs are to be recovered resides or owns property, or of the district in which the constituency, or any part of the constituency, to which the disputed election relates, is situated as if such order were a decree passed by that Court:
Provided that no proceeding shall be brought under this clause except in respect of costs which have not been recovered by an application under clause (2).