2020 (9) TMI 1160 - HC - Indian Laws

Violation of the Election Code of Conduct - Offences under Section 123(3) of the Representation of the People Act, 1951 - Whether when a complaint has been lodged and/or information furnished of an offence to a Station House Officer, the Station House Officer can himself seek for permission to investigate a non-cognisable offence or as a corollary to it, it is only the informant/complainant, who is to seek permission for investigation from the Magistrate? - HELD THAT - The Magistrate enquired with the Informant, perused the requisition and found that there is a prima facie case made out, requiring permission to be granted for investigation - Even otherwise, since the Informant herein is a public servant acting or purporting to act in the discharge of his official duties as belonging to the flying squad deputed by the Election Commission, there was no need for sworn statement of the Informant to be recorded, since the Provisio to section 200 exempts the same - thus, it cannot be said that the order permitting the investigation has been passed only on the basis of the requisition sent by the Investigating Officer. The same has been passed after the Investigating Officer having referred the Informant to the Magistrate, who having enquired with the Informant passed the order. Whether the complaint as regards violation of Section 123(3) of the Representation of Peoples Act, 1951 is limited to the candidate or does it extend to any third party? - Whether the violation of Section 123(3) of the Representation of Peoples Act, 1951 would amount to a penal offence making such person liable for criminal prosecution? - Whether promotion of enmity or hatred is a sine qua non for invoking section 125 of the Representation of Peoples Act, 1951 - HELD THAT - With the advent of democracy and the election process there have been several aspects relating to the elections, which have resulted in litigations. With the passage of time, laws have been evolved to regulate the electoral system. These electoral laws are aimed at maintaining a level playing field, so no one gets an undue advantage over the same - Various laws over a period of time have restrained or regulated various actions on the part of the candidate or his agent or representatives. Generally speaking, any violation of these electoral laws was regarded to be corrupt practices. Essentially any corrupt practices used by the candidate to get an unfair advantage would result in disqualification of the candidate. The R.P Act does not contemplate any action against the agent or any other person, who is acting with the consent of the candidate. As stated above, any action for violation of Section 123 of the R.P. Act leads back only to the candidate, if proved resulting in disqualification of the candidate or voiding the result of the election - Similar provisions as under Section 123(2) and (3) of the R.P. Act are not available under Chapter III Part VII relating to Electoral Offenses. There is no provision which makes a corrupt practice under Section 123(2) or (3) of the R.P. Act as an offence under the said Chapter. Thus, no criminal prosecution can be laid on account of the violation of Section 123 of the R.P. Act against any person. Of course, if there is any violation of a penal statute or special statute, separate prosecution could always be laid - An action for violation of Section 123 of the Representation of Peoples Act, 1951, can only be initiated against the candidate seeking for his/her disqualification and voiding of his/her result in the event of such candidate having returned successfully, hence no action can be taken against the agent or a person authorised by him for such corrupt practice in terms of section 123 of the Representation of Peoples Act, 1951 - Violation of Section 123 of the Representation of Peoples Act, 1951 in the present scheme of the legislation would amount to corrupt practice, providing a cause of action for filing of an election petition under Section 81 read with Section 100 and 101 of the Representation of Peoples Act, 1951; there can be penal action initiated by way of criminal prosecution. Whether in the present case on the basis of the allegation made in the complaint can it be prima facie concluded that the Petitioner has committed an offence under Section 171F of the IPC by exercising undue influence on the persons who had gathered for election rally in terms of Section 171C of the IPC? - HELD THAT - The exercise of undue influence in terms of Section 171C would only arise in the event of a person threatening any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind or induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure - That means to say that there have to be statements made or threat given to a voter that if he were to vote in any particular manner, he may incur displeasure of the divine or censure by spiritual censure. Unless these two ingredients are satisfied, there cannot be undue influence said to be used and therefore an offence under Section 171F could not be said to be committed - As regards undue influence, if it is to be contended that the speech of the Petitioner amounted undue influence it has to satisfy the dual requirement under Section 171C of the IPC. An ex-facie reading of the complaint does not make any allegation to satisfy the requirement of Section 171C of the IPC. Thus, when the basic requirement is not fulfilled, the criminal law cannot be set in motion, as regards an action, which does not amount to a penal offence. Thus, in the present case on the basis of the allegation made in the complaint it cannot be prima facie concluded that the Petitioner has committed an offence under Section 171F of the IPC by exercising undue influence on the persons who had gathered for an election rally in terms of Section 171C of the IPC. What is the procedure to be followed by the Magistrate when a B-report is filed? - Can a Magistrate suo moto reject the B-report without notice being ordered on the complainant? - Whether the Magistrate can suo moto take cognisance of the offence without issuance of notice to the complainant? - HELD THAT - This procedure has been enshrined in order to protect a citizen of the Country from unnecessary harassment after submission of the B-report, when a B-report has been submitted, it is generally accepted. It is only in exceptional cases, where the B-report has been filed and the complainant is not agreeable to the B-report that the enquiry is conducted under Section 200 of Cr.P.C.; in a proceedings pertaining to non- cognisable offences, the station house officer is not entitled to take cognisance of the non- cognisable offence, it is only on being directed by the jurisdictional Magistrate that he conducts an investigation to enquire as to whether there is prima facie offence made out; once the investigation leads an adverse report in terms of no offence having been made out, it is only the complainant, who can find fault with such investigation or B-report and requests the Magistrate to continue with the matter on the basis of the complaint filed by finding out defects in the investigation and/or by establishing otherwise that there is a prima facie case made out for the prosecution of the accused. In the present case, no notice was issued to the complainant, the Magistrate has rejected B- report without anyone objecting to the B-report and has taken cognisance of the alleged offence suo moto, such a procedure is neither contemplated nor sanctioned under the provisions of Criminal Procedure Code - no criminal prosection can be laid for violation of Section 123 of the R.P. Act. As answered to the points above, I am of the considered opinion that the complaint as such does not make out any case under Section 125 of the R.P. Act or Section 171F of IPC. Thus the question of setting the criminal law into motion on the basis of the complaint which does not prima facie make out an offence, is not sustainable. What is the procedure to be followed by the Magistrate before issuance of summons to a accused, who is not residing within its jurisdiction? - HELD THAT - No such summons could be issued without first examining the complainant and his witness if any on oath in terms of Section 200 of the Cr.P.C. Since in the present case, the Petitioner is not resident within the territorial jurisdiction of the Magistrate, the above procedure ought to have been complied with - The registration of complaint and issuance of summons to the accused is violative of Section 202(1) and 202(1) proviso (b) of the Cr.P.C. 11.5. The question that would arise in regard to the above contention is what is the enquiry that the Magistrate would have to conduct. There would have to be an order passed under Section 202(1) of the Cr.P.C. to indicate as to why process is being issued by the Magistrate to an accused who is not residing within the jurisdiction of that Court and for this purpose, sworn statement of the complainant as also the affidavit evidence if any of the complainant's witnesses could be recorded leading to an order by the Magistrate based on his satisfaction that there are sufficient grounds for issuing summons to such accused residing outside its jurisdiction. Such order not having been passed by the magisterate, the summons could not have been so issued. Whether the Magistrate could have at the stage of taking cognizance relied upon the video recording in a compact disk, without it being accompanied by a certificate under Section 65-B of the Indian Evidence Act? - HELD THAT - The electronic document cannot be considered to be evidence during trial without a certificate under Section 65-B of the Indian Evidence Act, being accompanied with it. In the present case, admittedly there is no trial, which has commenced. Thus, there would be no requirement of Section 65-B certificate at the stage of examination by the Magistrate whether to take cognisance or not, a Magistrate can always look into any electronic evidence, even if unaccompanied by a certificate under Section 65-B of the Indian Evidence Act for the purpose of taking cognisance or not of an offence. Is this a fit and proper case for this Court to interfere in the orders passed by the Magistrate under Section 482 of Cr.P.C.? - HELD THAT - It cannot be said that violation of Section 123 of the R.P. Act would require the initiation of criminal prosecution, no allegation or offence in terms of Section 125 within Chapter-III of Part-VII of the R.P. Act, 1951 is made out. The ingredients of the offences under Section 171C and 171F of the IPC have also not been made out. Hence, prima facie there is no offence, which can be said to have been committed by the Petitioner requiring prosecution. Of course, this does not prevent any action to be taken against the candidate for violation of Sections 123 of the R.P. Act.

Summary

Issues Involved:

1. Whether the Station House Officer can seek permission to investigate a non-cognizable offence.
2. Scope of Section 123(3) of the Representation of Peoples Act, 1951 (R.P. Act).
3. Whether violation of Section 123(3) of the R.P. Act amounts to a penal offence.
4. Requirement of promoting enmity or hatred for invoking Section 125 of the R.P. Act.
5. Prima facie case under Section 171F of the IPC.
6. Procedure to be followed by the Magistrate when a B-report is filed.
7. Whether the Magistrate can suo moto take cognizance of the offence.
8. Procedure for issuance of summons to an accused outside the Magistrate's jurisdiction.
9. Reliance on video recording without a Section 65-B certificate.
10. Whether the High Court should interfere under Section 482 of Cr.P.C.

Detailed Analysis:

1. Investigation of Non-Cognizable Offence by Station House Officer:
The court examined Section 155 of Cr.P.C., which mandates that the Station House Officer (SHO) must refer the informant to the Magistrate for permission to investigate non-cognizable offences. The SHO cannot seek permission directly unless he is the informant. In this case, the informant was present and examined by the Magistrate, satisfying the requirements of Section 155(1). Thus, the procedure followed was deemed appropriate.

2. Scope of Section 123(3) of the R.P. Act:
Section 123(3) pertains to corrupt practices involving appeals to vote on grounds of religion, race, caste, community, or language. The court clarified that actions under this section are limited to the candidate, resulting in disqualification or voiding of election results. It does not extend to third parties or agents of the candidate for criminal prosecution.

3. Penal Offence under Section 123(3) of the R.P. Act:
The court held that violation of Section 123(3) does not amount to a penal offence. The R.P. Act distinguishes between corrupt practices and electoral offences, with only the latter being subject to criminal prosecution. Therefore, no criminal action can be taken against the petitioner under this section.

4. Requirement of Promoting Enmity for Section 125 of the R.P. Act:
Section 125 criminalizes promoting enmity between classes in connection with an election. The court found no allegations in the complaint that satisfied the requirements of Section 125. Thus, even if the complaint was mistakenly registered under Section 123(3), it did not meet the criteria for Section 125.

5. Prima Facie Case under Section 171F of the IPC:
Section 171F pertains to undue influence or personation at elections. The court noted that undue influence under Section 171C requires threats or inducements related to divine displeasure or spiritual censure. The complaint did not allege such actions, and therefore, no prima facie case under Section 171F was made out.

6. Procedure for B-Report:
The Magistrate must notify the informant/complainant upon receiving a B-report. The informant's objections, if any, should be recorded, and their sworn statement should be examined. The court found that the Magistrate had not issued notice to the complainant before rejecting the B-report and taking cognizance suo moto, which was procedurally incorrect.

7. Suo Moto Cognizance by Magistrate:
The court held that a Magistrate cannot suo moto reject a B-report without issuing notice to the complainant. Cognizance can only be taken if the informant's sworn statement prima facie establishes an offence.

8. Issuance of Summons to Accused Outside Jurisdiction:
The court emphasized that before issuing summons to an accused residing outside the Magistrate's jurisdiction, an inquiry under Section 202(1) Cr.P.C. must be conducted. The Magistrate must record reasons for issuing process based on sufficient grounds.

9. Reliance on Video Recording without Section 65-B Certificate:
The court clarified that a Section 65-B certificate is not required at the stage of taking cognizance. The Magistrate can consider electronic evidence for this purpose, even if unaccompanied by a certificate.

10. High Court's Interference under Section 482 of Cr.P.C.:
Given that no prima facie offence was made out under Section 125 of the R.P. Act or Section 171F of the IPC, and procedural irregularities were found in the Magistrate's handling of the B-report, the court deemed it appropriate to quash the proceedings.

Conclusion:
The complaint, cognizance order, and all further proceedings in C.C.No.1065/2020 were quashed. The court reiterated the procedural safeguards and clarified the scope of various sections of the R.P. Act and IPC in the context of electoral offences and corrupt practices.