Case BriefsHigh Courts

“In this case, though in the sanction order it has been recorded ‘by order’ but from that word it cannot be inferred by whose order.”

Tripura High Court: The Bench of S. Talapatra, J. set aside the conviction of the appellant (who was a Member of Tripura legislative Assembly at the relevant time) for an offence under Section 500 IPC (punishment for defamation) for want of necessary sanction.

The appellant had made scathing and unfounded allegations of corruption against the de facto complainant– Manik Sarkar (who was the Chief Minister of Tripura at the relevant time) at a public meeting which were published in a daily newspaper–Tripura Darpan. He alleged the CM of secretly purchasing a luxurious flat at Salt Lake and keeping the toiling masses hungry. In a letter to the appellant, the CM challenged him to prove the allegations within 48 hours. However, the appellant neither replied to the letter nor proved any allegations. Subsequently, the Public Prosecutor, West Tripura filed a complaint against the appellant under Section 199(2) CrPC for taking cognizance, enquiry and trial for committing the offence under Section 500 IPC. Ultimately, the matter went to trial and the appellant was convicted and awarded a sentence of 2 day’s simple imprisonment by the Sessions Judge. Aggrieved thereby, the present appeal was filed.

Senior Advocate P.K. Biswas, representing the appellant, contended that the conviction was not proper as there was no legal sanction order to file a complaint against the appellant who was a sitting MLA at the relevant time. Advocate General A.K. Bhowmi made submissions in favour of the impugned judgment.

The High Court found that the charge against the appellant was established and proved to the hilt. However, thereafter it referred to a plethora of precedents on law relating to Article 166 which has been engrafted for conduct of the business of State Governments. The article mandates that all executive actions of the government have to be taken in name of the Governor and authenticated in a manner specified by rules in that behalf. In the present case, the order of sanction was not issued in name of the Governor nor was it shown to have been issued by his order. Even after perusing Rules of Executive Business of the Government of the State of Tripura, 1972, the Court found the absence of authorisation for granting sanction as required under Section 199(4) CrPC. In such case, it was held that the cognizance or framing of charge on the absence of valid sanction was grossly erroneous and illegal. As a corollary, the appeal was allowed and the appellant was discharged. [Bilal Miah v. State, 2019 SCC OnLine Tri 4, dated 03-01-2019]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of P.D. Rajan, J. declared the election of one K.M. Shaji as void, for having used corrupt practices and unduly influencing voters by creating a religious divide.

Petitioner filed the instant petition to challenge the election of respondent to the Azheekode Assembly Constituency. His case was that: (i) respondent, being a Muslim candidate, had appealed to voters belonging to Muslim community to vote for him on the ground of religion, and (ii) he had distributed pamphlets accusing petitioner of having an extra-marital relationship with Ms. Saritha (an accused in the solar scam case – a major issue in 2016 Kerala General Assembly Election).

The Court noted that the respondent had appealed to Muslim voters to refrain from voting for petitioner on the ground that he was a non-Muslim. Pamphlets as to petitioner’s personal life were false and published with the intention to defame him. It was observed that publication of such pamphlets had created misunderstanding among the voters and affected petitioner’s election prospects.

The Court noted Apex Court’s opinion in Krishnamoorthy v. Sivakumar, 2015 (3) SCC 467 where it was held that any direct or indirect interference/attempt to interfere on part of a candidate amounts to undue influence.

It was opined that the basic principle underlying Section 123(3) of the Representation of People Act, 1951 (RP Act) is elimination of divisive factors such as religion, caste etc. from the electoral process. Candidates cannot tell the electors that their rivals are unfit to act as representatives of people on the ground of their religion as such an appeal would be on the ground of religion.

In view of the above, the petition was allowed and respondent’s election was set aside under Sections 100(1)(b) and 100(1)(d)(ii) of the RP Act for having committed corrupt practice under Sections 123(3) and 123(4) of the RP Act. He was also disqualified from contesting in any election for a period of six years and subjected to payment of Rs. 50,000 as cost to the petitioner.

Lastly, the Court directed its finding in relation to respondent’s corrupt practice to be forwarded to the President of India for appropriate action under Section 8A of the RP Act; and also directed the High Court to intimate substance of its decision to the Election Commission and the Speaker of the Kerala Legislative Assembly.[M.V. Nikesh Kumar v. K.M. Shaji,2018 SCC OnLine Ker 4953, decided on 09-11-2018]