RATTAN v. RAJESH KHANNA — 1994 DIGILAW 657 (DEL)

V. B. BANSAL ( 1 ) RATTAN, petitioner has filed this revision petition under Section 397 read with Section 401 and 482 of the Code of Criminal Procedure thereby challenging the order dated 12. 2. 1993 of Shri R. K. Sharma, Additional Chief Metropolitan Magistrate, New Delhi, dismissing, his complaint against the respondents. ( 2 ) A complaint was filed by the petitioner against the respondents for the offences under Section 171-C, India Penal Code read with Section 128, 129, 130, 131 and 132 of the Representation of People Act, 1951 as also read with Section 120-B, Indian Penal Code. ( 3 ) BRIEFLY stated, the averments made in the complaint have been that the petitioner/complainant contested Lok Sabha election from the New Delhi Parliamentary constituency as an independent candidate and the accused persons committed an offence as was reported in the News Daily jansatta (Hindi) dated 21. 5. 1991. Further averments made in the complaint have been that the photograph appearing in the Jansatta Newsdaily indicated that Rajesh Khanna, accused No. 1, was indicating the symbol of the Congress-I party to the accused No:2 and her husband and, thus, committed the aforesaid offences. It was also claimed that the other persons present at the Polling Station at Nirman Bhawan were greatly-influenced by such ah act of accused No. 1 showing the election symbol of his party to the voters. It was also claimed that the accused No. 2 was also guilty of the aforesaid offence and a complaint was made in writing to the Station House Officer, Police Station Tughlaq Road, New Delhi on 13. 9. 1991 but no First Information Report was registered and, thus, this complaint. ( 4 ) IN support of his complaint Rattan, complainant, appeared as CW/1 and claimed that on 20. 5. 1991 he visited the Polling Booth at Nirman Bhawan where he could be present being a candidate and that Shri Rajiv Gandhi arrived there alongwith his wife Smt. Sonia Gandhi and they were accompanied by Shri Rajesh Khanna, the Congress-I candidate from the New Delhi Parliamentary Constituency and he had seen that Smt. Sonia Gandhi had opened her ballot paper and then Rajesh Khanna was stylishly pointing to his election symbol to which he raised an objection and a photograph appeared in the New Daily jansatta on 21. 5. 1991 depicting Rajesh Khanna showing the symbol in a stylish manner. 5. 1991 depicting Rajesh Khanna showing the symbol in a stylish manner. He has also claimed that he had filed a complaint at Police Station Tughlaq Road but no action was taken and, so, he has filed this complaint. He examined Surinder Dutt Tyagi, CW/2, who was working as Chief Press Photographer with the United News of India. He, however, did not support the complainant and deposed that the photograph appearing in the Jansatta dated 21. 5. 1991 was not taken by him nor was it released by United News of India. He has also claimed that the caption at point b below the photograph was. paincorrect. Shri R. K. Sharma, CW/3, has been the Chief Photographer with the Indian Express and Jansatta, who has claimed that on 20. 5. 1991 he had gone to Nirman Bhawan to cover the polling of the New Delhi Parliamentary Constituency seat and at about 9. 30 a. m. Shri Rajiv Gandhi alongwith his wife came to the Nirman Bhawan Polling Station, which was the polling station for casting their votes and they were received by Shri Rajesh Khanna, the Congress-I Candidate. He went on to state that before they could get the ballot paper from the Polling Officer, respondent No. 1 pointed out his election symbol to respondent No. 2 and he took the photograph to this effect which was published and printed in Jansatta Newspaper on 21. 5. 1991. He identified the photograph in Jansatta as Ex. P/1 and the photograph appearing on page 1 of the Janatta Newsdaily to be the same which was taken by him. He had brought the negative with him and proved the photograph Exhibit P/2, developed from the negative. ( 5 ) LEARNED Trial Court after hearing the arguments dismissed the complaint. ( 6 ) I have heard Shri R. M. Tewari, learned counsel for the petitioner and Shri Arun Bhardwaj, learned counsel for the respondents. I have also gone through the record. ( 7 ) LEARNED counsel for the petitioner has submitted that the learned Trial Court has gravely erred in dismissing the complaint as all that was required at that stage was to determine whether process should have been issued or not and the Magistrate was not to be satisfied whether there was sufficient ground for conviction. ( 7 ) LEARNED counsel for the petitioner has submitted that the learned Trial Court has gravely erred in dismissing the complaint as all that was required at that stage was to determine whether process should have been issued or not and the Magistrate was not to be satisfied whether there was sufficient ground for conviction. He has also submitted that the only material to be considered by the trial court was the evidence produced by the petitioner and not what could be the defence of the accused. He has also submitted that no extraneous consideration could weigh with the learned Trial Court who has gone beyond the record in making the observation that respondent No. 2 was duty bound to support the candidate of the party of which her husband was the President. He has further submitted that the respondent No. 1 has used undue influence on respondent No. 2 for the exercise of her right of franchise and that the learned trial court has failed to appreciate that the material under the Indian Law is the actual effect produced by doing such act as are calculated to interfere with the free exercise of an electoral right. He has, thus, submitted that a clear case was made out for proceeding further in the complaint by summoning the respondents as accused and that the learned trial court has committed material irregularity. A prayer has, thus, been made that the impugned order may be set aside. ( 8 ) LEARNED counsel for the respondents has, on the-other hand, submitted that the learned trial court has fairly considered the evidence produced on record and has not committed any irregularity or illegality in coming to the conclusion that no case is made out against the respondents. He has also submitted that the evidence produced by the complainant has not made out a case of exercise of undue influence by the respondent No. l. A prayer has, thus, been made that the revision petition may be dismissed. ( 9 ) BEFORE making a reference to the submissions with reference to the evidence produced by the petitioner before the trial court, it would be necessary to refer to the law on the subject. Chandra Deo Singh Vs. ( 9 ) BEFORE making a reference to the submissions with reference to the evidence produced by the petitioner before the trial court, it would be necessary to refer to the law on the subject. Chandra Deo Singh Vs. Prokash Chandra Bose alias ChabiBose and another (Alr 1963 S. C. 1430 is an authority dealing with the scope of the provisions contained in Section 202 and 203 of the Code of Criminal Procedure. It has been observed that one-of the objects behind the provisions of Section 202, Criminal Procedure Code is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as an accused from being called upon to face an obviously frivolous complaint. But, there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person but also with a view to bring to book a person or persons against whom grave allegations are made. Whether a complaint is frivolous or not has necessarily to be determined on the basis of the material placed before him by the complainant and that an enquiry under Section 202 is not a trial. ( 10 ) D. N. BHATTACHARJEE and Others V. State of West Bengal and another (1972 (3) S. C. C. 414 is another important authority on the subject. It would be appropriate to refer to para 7 of the judgment, which reads as follows: "it has to be remembered that an order of dismissal of a Complaint under Section 203, Criminal Procedure Code has to be made on judicially sound grounds. It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction. It is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the complainant. But, the object of such consideration of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for proceeding further or not. It is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the complainant. But, the object of such consideration of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for proceeding further or not. The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate the need for proceeding further in order to discover the truth after a full and proper investigation. If, however, a bare perusal of a complaint or the evidence led in support of it show that essential ingredients of the offences alleged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further, the complaint could be properly dismissed under Section 203, Criminal Procedure Code. " ( 11 ) IT has further been observed that "what a Magistrate has to determine at the stage of issue of process was not the correctness or probabilities or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case on the assumption that what was stated in the complaint could be true unless the prosecution allegations were so fantastic that they could not reasonably be held to be true. ( 12 ) SMT. Nagawwa V. Veeranna Shivlingappa Konjalgi and Others (1976 (3) S. C. C. 736) also deals with the scope of the provisions contained in Section 202 of the Code of Criminal Procedure. It has been held that the scope of the inquiry under Section 202 of the Code of Criminal procedure is limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint, i. e. (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. However, the Magistrate in such proceedings can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against the accused. It has also been held that the Magistrate is given the discretion to exercise and once he has exercised his discretion it is not for the High Court or for the Supreme Court to substitute its own discretion for that of the Magistrate or to examine the case on merit with a view to find out whether or not the allegations made in the complaint, if proved, would ultimately end in conviction. It is also clear from this judgement that the Court can interfere (a) if the facts disclosed, if taken at their face value, make out no case against the accused; (b) the allegations made are patently absurd; (c) where the discretion exercised is capricious and arbitrary based on no evidence or on material which is irrelevant; and (d) suffers from fundamental legal defects. ( 13 ) IN case Nirmaljit Singh Hoon V. The State of West Bengal and Another (1973 S. C. C. (Crl.) 521 it has been held that under Section 202 a Magistrate on receipt of a complaint may postpone the issue of process and either inquire into the case himself or direct an enquiry to be made by a Magistrate subordinate to him or by a Police Officer for ascertaining its truth or falsehood and under Section 203 he may dismiss the complaint if after taking the statement of the complainant and his witnesses there is in his judgement no sufficient ground for proceeding. It has further been held that unless the Magistrate finds that the evidence led before him is self-contradictory or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case. ( 14 ) I would be discussing the submissions made by the learned counsel for the parties keeping in view the aforesaid legal propositions. It has further been held that unless the Magistrate finds that the evidence led before him is self-contradictory or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case. ( 14 ) I would be discussing the submissions made by the learned counsel for the parties keeping in view the aforesaid legal propositions. The main submission of the learned counsel for the petitioner has been that the respondent No. l exercised undue influence on the respondent No. 2 so as to enable her to exercise her right of franchise in his favour and, thus, they both have committed the offence under Section 171-C punishable under Section 171-Fof the Indian Penal Code. It would, at this stage, be appropriate to quote Section 171-C, Indian Penal Code, which reads as follows: Undue influence at elections.- (1) Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election. (2) Without prejudice to the generality of the provisions of sub-section (1), whoever- (a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or (b) 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 of spiritual censure, shall be deemed to interfere with the free exercise ofthe electoral right of such candidate or voter, within the meaning of sub-section (1 ). (3) A declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section. ( 15 ) THE short question for consideration is as to whether the learned Additional Chief Metropolitan Magistrate has committed any mistake in coming to the conclusion that no case was made out for summoning of the respondents as accused for this offence. As per the statement of the petitioner, recorded as CW/1, he has claimed that he had seen the respondent No. 2 having opened her ballot paper and at that time the respondent No. 1 was "stylishly pointing his election symbol which was "hand" symbol to the respondent No. 2. As per the statement of the petitioner, recorded as CW/1, he has claimed that he had seen the respondent No. 2 having opened her ballot paper and at that time the respondent No. 1 was "stylishly pointing his election symbol which was "hand" symbol to the respondent No. 2. He has been contradicted by Shri R. K. Sharma, CW/3, who has claimed that before the respondent No. 2 and her husband could get the ballot paper from the Returning Officer, Rajesh Khanna pointed out the symbol of election to the respondent No. 2 and he took the photograph to this effect which was published in Jansatta, Ex. P/1 and he has proved the photograph Ex. P/ 2. It is, thus, clear that according to this witness the symbol was being pointed out by the respondent No. 1 before the ballot paper was obtained by respondent No. 2 and, thus, he has contradicted the petitioner/ complainant. Is it possible to conclude that the respondent No. l exercised undue influence on the respondent No. 2 so that she may cast vote in his favour? The answer would certainly be in the negative. The petitioner/complainant has himself claimed that respondent No. l was pointing out the symbol in a stylish manner and not by way of putting any undue influence. Learned counsel for the petitioner has placed reliance upon the case Ram Dial V. Sant Lal and others (AIR 1959 S. C. 855. It has been held in this case that what is material under the Indian law is not the actual effect produced but the doing of such acts as are calculated to interfere with the free exercise of any electoral right. t was a case challenging the election of an M. L. A. and there was an appeal by a religious leader leaving no discretion to his followers to exercise their right of franchise. It was in these circumstances that it was held that it was covered by second paragraph of proviso to Section 123 (2 ). In that case even a hukkumnama was issued by the religious leader to his followers. Reliance was also placed by him on the case Baburao Patel and others V. Dr. Zakir Hussain and Others (AIR 1968 S. C. 904. In that case even a hukkumnama was issued by the religious leader to his followers. Reliance was also placed by him on the case Baburao Patel and others V. Dr. Zakir Hussain and Others (AIR 1968 S. C. 904. It has been held in this case that the gist of undue influence at an election as defined in Section 171-C, Indian Penal Code, consists in voluntary interference or attempt at interference with the free exercise of any electoral right. It has also been observed that even though the definition in Sub-section (1) of Section 171-C is wide in terms, it cannot take in mere canvassing in favour of a candidate at an election. It has also been held that a letter by the Prime Minister of India who was leader of the Congress party to all the electors for election of the President of India to vote for the candidate of her party was held not to constitute undue influence. ( 16 ) IT would, at this stage, be appropriate to refer to another judgement of the Supreme Court in case Charan Lal Sahu V. Giani Zail Singh and another (AIR 1984 S. C. 309 ). It has clearly been held in this case that some act of canvassing for a candidate cannot amount to undue influence under Section 171-C, Indian Penal Code and something more than canvassing has to be shown which could be in the nature of giving a threat or an injury to a voter or like inducing a belief of divine displeasure in the mind of a candidate or a voter. It has also been held that it must be in the nature of a pressure or tyranny on the mind of a voter of a candidate. There is no doubt that there can be undue influence even at this stage when an elector goes through the mental process of waighing the merits and demerits of the candidates and makes his choice. Reliance in this regard is placed on case S. K. Singh V. V. V. Gin (AIR 1970 S. C. 2097 ). ( 17 ) THE learned Additional Chief-Metropolitan Magistrate while considering the evidence came to the conclusion that no case was made out against the respondents. I do not find any cogent reason to come to a conclusion different from that arrived at by him. ( 17 ) THE learned Additional Chief-Metropolitan Magistrate while considering the evidence came to the conclusion that no case was made out against the respondents. I do not find any cogent reason to come to a conclusion different from that arrived at by him. ( 18 ) LEARNED counsel for the petitioner has submitted that the respondents have also committed offences under Sections 128, 129 and 130 of the Representation of People Act, 1951. A perusal of Section 128 aforesaid shows that it relates to maintenance of secrecy of voting by the officer, clerk, agent or other person who performs any duty in connection with. the recording of counting of votes at an election; while Section 129 provides that persons on election duty are not to act for candidates or to influence voting. Admittedly, the respondents were not on election duty and, so, these, two provisions are not applicable. ( 19 ) SECTION 130 of the Representation of the People Act, 1951, prohibits canvassing in or near polling stations. The question for consideration is as to whether there was any evidence produced by the complainant so as to indicate that there was any canvassing by the respondents. Section 130 aforesaid reads as follows: 130. Prohibition of canvassing in or near polling stations.- (1) No person shall, on the date or dates on which a poll is, taken at any polling station, commit any of the following acts withinthe polling station or in any public or private place within a distance of (one hundred metres) of the polling station, namely:- (a) canvassing for votes; or (b) soliciting the vote of any elector; or (c) persuading any elector not to vote for any particular candidate; or (d) persuading any elector not to vote at the election; or (e) exhibiting any notice or sign (other than an official notice) relating to the election. (2) Any person who contravenes the provisions of sub-section (1) shall be punishable with fine which may extend to two hundred and fifty rupees. (3) An offence punishable under this section shall be cognizable. ( 20 ) AS already referred to, according to the petitioner, respondent No. 1 had pointed the election symbol to the respondent No. 2 in a stylish manner and at that moment a photograph was taken by R. K. Sharma, CW/3. (3) An offence punishable under this section shall be cognizable. ( 20 ) AS already referred to, according to the petitioner, respondent No. 1 had pointed the election symbol to the respondent No. 2 in a stylish manner and at that moment a photograph was taken by R. K. Sharma, CW/3. In-these circumstances, it cannot be said that the respondent No. l was canvassing for votes or soliciting the vote of respondent No. 2 or that he was pursuading the respondent No. 2 in any way to vote for him. ( 21 ) THE petitioner has placed reliance upon the photograph in the newspaper as also the endorsement made thereunder. A perusal of this endorsement also shows that it is not clear as to whether the respondent No. l was helping the respondent No. 2 to find out the symbol. It is not disputed that the husband of respondent No. 2 was the President of the party of which the respondent No. l was the candidate. Thus, the case is not covered by any of the clauses of Section 130 so as to hold that respondent No. l was canvassing for votes. ( 22 ) KEEPING in view all the facts, I am clearly of the view that no case is made out for interference in the exercise of discretion by the learned Additional Chief Metropolitan Magistrate in dismissing the complaint of the petitioner. ( 23 ) AS a result, the revision petition is dismissed.