Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phookan J. dismissed the criminal proceedings against Chief Minister of Assam, Dr. Himanta Biswa Sarma for violating the provision of the Model Code of Conduct during 2019 General Assembly Elections. The Court was further of the view that the provision mentioned under Section 126 of the Representation of the People Act, 1951 (RP Act) should be reexamined in the light of multi-phased elections and the expansion of digital and electronic media.

Facts of the case

A complaint was filed as per the direction of the Election Commission of India (ECI), against the petitioner who was an MLA in 2019, and the “news” channel, ‘News Live’, for telecasting a Live interview of the petitioner a day before the first phase elections were scheduled. In the complaint filed it was said before the trial court that cognizance under Section 126(1)(b) of the RP Act should be taken. Based on the documents submitted, the trial court took cognizance of the offence and imposed a fine of Rs 2000/- on the petitioner.

Therefore, the petitioner filed a criminal petition under Section 482 r/w Section 397 of the Criminal Procedure Code, 1973 (CrPC).

Analysis and Decision of the Court

Firstly, the court noted that the original complainant was neither present for the proceedings nor did he produce the relevant documents, as directed, therefore, such a complaint is liable to be dismissed for non-prosecution.

Therefore, the Court stated, “Being an officer of the justice delivery system, no one can conduct the affairs of the prosecution as an inquiry officer. As the original complainant did not pursue the matter nor produced the relevant documents, as directed, such a complaint is liable to be dismissed for non-prosecution u/s.203 CrPC and/or other relevant orders as to whether the complainant has been able to make out a prima facie case for proceeding etc. But a court of law is never assigned to undertake an inquiry to pursue the matter with higher authority as has been revealed by various orders of the court. Accordingly, all these orders suffer from serious illegality.

Secondly, the Court noted that when the interview was telecasted in Gauhati, no polling was scheduled for the next 48 hours, as per the notification poll schedule. The aforementioned fact was neither disclosed in the complaint nor did the trial court consider it while taking cognizance of the offence. Thus, the trial court had failed to discharge discretion while conducting proceedings.

Further, the Court opined that in the changing social scenario as well as the expansion of the digital era where the election commission itself has made arrangements to hold elections in phases in certain constituencies, it is time to revisit the provision enunciated in Section 126 of the RP Act which was enacted in the year 1951.

Hence, the Court held that continuation of the criminal proceedings would amount to an abuse of the process of court causing injustice, and quashing the proceeding would otherwise serve the ends of justice. Resultantly, the Court quashed the entire proceedings under Section 126(1)(b) of the RP Act and set aside the impugned order of the trial court.

[Himanta Biswa Sarma v. Election Commission of India, 2022 SCC OnLine Gau 927, decided on 10-06-2022]

Advocates who appeared in this case :

Mr. D. Saikia, Senior Advocate, for the Petitioner;

Mr. A. Sarma, Ms. P. Baruah, Advocate., Mr. R. Dubey, Advocate, Mr. A.I. Ali, Advocate, for the Respondent.

Case BriefsHigh Courts

Karnataka High Court: H P Sandesh J. allowed the petition and quashed the proceedings initiated against the petitioners.

This petition is filed under Section 482 of Criminal Procedure Code i.e. Cr.P.C., praying this Court to quash the order of the Civil Judge and JMFC, Muddebihal, dated 13.07.2018 passed in C.C.No.167/2018 (Crime No.107/2018 of Muddebihal Police Station) taking cognizance against the petitioners   for the offences punishable under Section 171H of Penal Code, 1860 i.e. IPC and Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981.

Counsel for the petitioner Mr. Rajesh G Doddamani submitted that the Act invoked i.e., the Karnataka Open Places (Prevention  of Disfigurement) Act, 1981 is not applicable to  Muddebihal and the said Act is applicable only in respect  of particular places. Unless the same is notified in respect of particular place of Muddebihal, the police ought not to have initiated proceedings against the petitioners under Section 3 of the Act. It was also submitted that the respondents have also invoked Section 171H of IPC. The complaint is not filed under Section 195 of Cr.P.C., but the case has been registered against the petitioners and based on the police report, cognizance was taken. Therefore, when non-cognizable offence is invoked, it requires permission from the Magistrate under Section 155(2) of Cr.P.C., and hence, it requires interference of this Court.

Counsel for respondents Mr. Gururaj V Hasilkar submitted that the election was declared in respect of Muddebihal assembly constituency in 2018. When the election notification was issued by the State, the order was passed by the District Election Officer and District Magistrate, Vijayapura dated 31.03.2018 appointing flying squads and the same includes Muddebihal  Constituency. The learned counsel also relied upon the  order of the State Government dated 10.04.2018 and so also the revised order dated 31.03.2018 appointing officers consisting of flying squads. The learned counsel also relied upon the Notification of Election Commission of India dated 02.05.2018 wherein it is clarified that as per Section 126(1)(b) of the Representative of People Act, 1951, there shall not be displaying of any stickers and flags of any particularly party and the said act is in  violation of the same and there is no specific notification  for applying the above Act but election notification is  issued. It is not in dispute that the petitioners herein came to the Tahsildar’s office in vehicles displaying stickers and flags of a particular party. Hence, the proceedings initiated against the petitioners cannot be quashed.Issue: Whether Karnataka Open Places (Prevention of Disfigurement) Act, 1991 is applicable to Muddebihal or not?

The Court observed that on perusal of Section 1(2)(i) of the Act makes it clear that the Act is applicable for the cities viz., Bangalore,  Mysore, Hubli-Dharwar, Mangalore and Belgaum constituted or continued under the Karnataka Municipal  Corporation Act, 1976 or under any other law, on the fifth day of May, 1981 and Section (1)(2)(ii) of the Act says that the same come into force in the municipalities, notified areas, sanitary boards, constituted or continued under the Karnataka Municipalities Act, 1964 or under any other law, or in any other local area, on such date, as the State Government may by notification appoint and different dates may be appointed in respect of different areas.

But, no such Notification was issued in respect of Muddebihal. Hence, unless the Act is applicable to particular city and municipal area, the initiation of proceedings under the said Act is unsustainable under law.

The Court further observed that Section 171H of IPC deals with illegal payments in connection with an election. But, in the  case on hand, the allegation against the petitioners is  that they came in vehicles with flag of political party and no allegations with regard to illegal payments in  connection with election are found in the complaint.  Under the circumstances, very initiation of proceedings against the petitioners is nothing but an abuse of process of law. Hence, it is appropriate to exercise power under Section 482 of Cr.P.C., or otherwise it leads to miscarriage of justice.

The Court having considered the allegation made in the complaint as well as in the charge sheet observed that it does not attract offence under Section 171H of IPC and so also Section 3 of the Act as there is no notification. “….complaint averments and charge sheet averments do not attract the offences invoked and apart from that, the above Act is not applicable to Muddebihal and without any notification for application of the Act, proceedings have been initiated.”

The Court held “….very initiation of  proceedings against the petitioners is not sustainable in the eye of law, as there was no notification for applicability of the above Act to Muddebihal and also no ingredients of offence under Section 171H of IPC.”

[Hanmagouda v. State of Karnataka, Criminal petition No. 200377 of 2019, decided on 26-11-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J. upheld an order passed by the Election Commission of India, dated 1-4-2019, whereby the petitioner — Additional Director General of police, Jharkhand — was forthwith divested from his present assignment and was directed to report to the Resident Commissioner, Jharkhand Bhawan, New Delhi.

A complaint was made against the petitioner that he indulged in electoral malpractices like influencing voters in the Rajya Sabha Elections of 2016. On receipt of the complaint, departmental proceedings were initiated against him and an FIR was registered for committing election offence, on the directions of the Election Commission of India. Meanwhile, elections to the 17th Lok Sabha were announced. A letter was received by the Election Commission with the information of pending inquiry against petitioner. On receiving the letter, the Commission issued an order divesting him of the present assignment and directing him to report to the Resident Commissioner. It was also directed that he shall not be allowed any leave/duty to visit the State of Jharkhand till completion of the electoral process. Aggrieved, the petitioner challenged the aforesaid order.

The High Court noted that Article 324 of the Constitution provides for the establishment of Election Commission of India and vests in it the power of superintendence, direction and control of elections. In Court’s opinion, Article 324 empowers the Commission to issue any notification, circular or direction to conduct free, fair, smooth and uninfluential elections, where there is no special law, either found by the Parliament or by State Legislature to deal with the situation. The Court perused Section 28-A of the Representation of the People Act, 1951 which provides that all the officers which have been ‘designated’ under Part 4 of the Act, shall be deemed to be on deputation of the Election Commission and they will be under control, superintendence and discipline of the Commission.

Notably, the State of Jharkhand has issued a notification designating Additional Director Generals of Police as ‘designated officers’. Therefore, the present petitioner was also a designated officer for the purpose of Section 28-A. Thus, the Election Commission had got full control over the petitioner, a ‘designated officer’, and could give him directions and could also restrict and regulate him. It could decide the nature of the job to be performed by the petitioner and the manner of its performance. The Commission could also restrict or forbid him from performing any work, to achieve the ultimate goal of conducting free and fair elections.

The Court held that the order directing the petitioner to report to the Resident Commissioner in New Delhi was for all-purpose an order of ‘transfer’, which is an incident of service. It was noted that the Election Commission had framed a Model Code of Conduct which, among all other things, formulated the policy of transfer/posting of Government officials during the elections. However, observed the Court, that the MCC is a general provision which cannot be universally applied. It is not a closed document.

Orders of transferring the officers in unforeseen circumstances, will be exceptions to the MCC, and these will be orders passed in the exercise of plenary powers under Article 324 read with Section 28-A.

On the facts of the case, it was found that there was sufficient material before the Election Commission to pass the impugned order. The orders could have been passed by the Commission not only under the MCC but also under Article 324 read with Section 28-A. Thus, there was no illegality in the impugned order. As such, the petitioners challenge to the order divesting him of his duty and directing him to report to the Resident Commissioner was dismissed.

However, regarding the direction that the petitioner shall not be allowed any leave/duty to visit the State of Jharkhand till completion of the election process, the court held that such a blanket order was unreasonable and could not be sustained in the eye of the law. It was directed that if the petitioner applies for grant of leave, the Election Commission should consider the same on its own merit. [Anurag Gupta v. Election Commission of India, 2019 SCC OnLine Jhar 474, dated 03-05-2019]

Hot Off The PressNews

Election Commission of India: Since the General Elections to 17th Lok Sabha, 2019 were announced on 10-03-2019, the Model Code of Conduct (MCC) came into operation.

It has come to the notice of the Commission that certain political contents, which are not in conformity with the MCC, are being displayed or intended to be displayed to the public through electronic media including cinematograph in the public, which relates to either a candidate or a political party or a specific achievement of the party in power and hence these are displayed with the purpose of furtherance of electoral gains during the period of Model Code of Conduct.

So far, the Commission has received complaints about certain cinemas namely ‘NTR Laxmi’, ‘PM Narendra Modi’, and ‘Udyama Simham’, which are claimed to either diminish or advance the electoral prospect of a candidate or a political party in the garb of creative freedom. 

Therefore, the Commission hereby orders:

  1. That any biopic material in the nature of biography/hagiography sub-serving the purposes of any political entity or any individual entity connected to it, which is intended to, or which has the potential to disturb the level playing field during the elections, should not be displayed in electronic media including cinematograph during the operation of MCC.
  2. That any poster or publicity material concerning any such certified content, which either depicts a candidate (including prospective) for the furtherance (or purported to further) of electoral prospect, directly or indirectly, shall not be put to display in electronic media in the area where MCC is in operation.
  3. That any poster or publicity material concerning any such certified content, which either depicts a candidate (including prospective) for the furtherance (or purported to further) of electoral prospect, directly or indirectly, shall not be put to display in print media, without the prescribed instructions of pre-certification.
  4. That in any cinematograph material, certified by the appropriate authority, if there exists such a violation or on receipt of a complaint in this regard, a Committee, duly constituted by the Commission, shall examine the same and suggest appropriate action. This Committee shall be headed by a retired Justice of Supreme Court or retired Chief Justice of any High Court.

Please refer the link for detailed notification: NOTIFICATION

[Order dated: 10-04-2019]

Election Commission of India