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2007 DIGILAW 642 (ALL)

DHIRENDRA MOHAN v. STATE OF UTTAR PRADESH

2007-03-16

POONAM SRIVASTAVA

body2007
JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Heard Sri Anoop Trivedi, learned Counsel for the petitioner, Sri V.S. Singh Advocate for the respondent No. 2 and learned A.G.A. for the State. 2. The instant writ petition is filed with a prayer for quashing the proceedings in complaint case No. 541 of 2004, pending in the Court of 1st Judicial Magistrate, Meerut and also challenging the orders dated 23.1.2002 passed in revision and the order dated 12.4.2002 summoning the petitioner under Section 127-A of the Representation of Peoples Act, 1951. 3. The facts of the case are that the petitioner is a resident editor of Hindi Daily Dainik Jagran published from Meerut. The newspaper is published in confirmation of the provisions of Press and Registration of Books Act, 1867. The respondent No. 2 preferred a complaint in the Court of Chief Judicial Magistrate, Meerut under Section 127-A of the Representation of Peoples Act, 1951 (hereinafter referred to as the Act). Copy of the complaint is annexed as Annexure-1 to the writ petition. The allegations in the complaint are that after dissolution of 12th Lok Sabha, the process of holding elections for the 13th Lok Sabha commenced in the month of August, 1999 in Meerul Parliamentary Constituency. The process of holding election commenced w.e.f. 30th August, 1991 under the provisions of the Act. 25.9.1999 was the date fixed for voting and it was to commence at 7.00 A.M. and continue till 5.00 P.M. on the same date i.e. 25.9.1999. A news item was published in the Hindi Daily Dainik Jagran. The caption of the news item was “MUSLIM JATH EVAM GUJAR MATON KA CONGRESS KE PAKSH ME DHRUVIKARAN” and another news item under the caption “BHAJAPA KI FLOP JAN SAMUHON SE CONGRESIYON KE |HAUNSALE BULAND” and another item “JUME KI NAMAJ ME BHADANA KO VOTE DENE KI APPEAL. NARAJ CONGRESIYON NE BHADANA KO JITANE KE LIYE KAMAR KASI. BHAJAPA APHAVOHO KI RAJNITI KAR RAHI HAI : BHADHANA”. 4. On the basis of aforesaid publication, it was alleged that an offence under Section 127-A of the Act has been committed. Learned Magistrate rejected the complaint on 31.7.2000 under Section 203, Cr.P.C. coming to a conclusion that no offence is made out. This order was challenged in Criminal Revision which was allowed by the respondent No. 2 on 23.1.2002. 4. On the basis of aforesaid publication, it was alleged that an offence under Section 127-A of the Act has been committed. Learned Magistrate rejected the complaint on 31.7.2000 under Section 203, Cr.P.C. coming to a conclusion that no offence is made out. This order was challenged in Criminal Revision which was allowed by the respondent No. 2 on 23.1.2002. The matter was remanded to the Magistrate to pass fresh orders on merits after giving an opportunity of hearing. The revisional Court was of the view that the learned Magistrate did not take into consideration whether the publication which was published under the heading ‘advertisement’ can be included within the meaning of “poster or pamphlet”. An observation of the revisional Court was to the effect that the advertisement can very well be included in the definition of poster. The word ‘Poster’ in English means Vigyapan in Hindi. Besides, the learned Additional District and Sessions Judge was of the view that no information was given to the Election Office regarding the instant publication. Neither any prior information nor any permission was obtained by the Hindi Daily. Accordingly, the order of the learned Magistrate rejecting the complaint under Section 203, Cr.P.C. was recalled. Pursuant to the aforesaid order, the learned Magistrate summoned the two accused vide order dated 12.4.2002. Narendra Mohan, the erstwhile alleged newspaper editor died on 20.9.2002. The petitioner alone filed his objections against the order dated 12.4.2002 passed by the Ilnd Additional Chief Judicial Magistrate, Meerut issuing process on various grounds but before the orders could be passed on the objection, the law stood changed and in view of the Apex Court decision in the case of Adalat Prasad v. Roop Lal Zindal and others, 2004 (5) A.C.C. 924, the objection was not maintainable, hence the instant writ petition was preferred challenging the order taking cognizance under Section 127-A of the Act. This Court had stayed the proceedings pending in the Court of Judicial Magistrate 1st, Meerut. Counter and rejoinder affidavits have been exchanged and this writ petition is being heard finally. 5. Sri Anoop Trivedi has raised a number of contentions challenging the impugned order passed by the learned Magistrate summoning the petitioner. This Court had stayed the proceedings pending in the Court of Judicial Magistrate 1st, Meerut. Counter and rejoinder affidavits have been exchanged and this writ petition is being heard finally. 5. Sri Anoop Trivedi has raised a number of contentions challenging the impugned order passed by the learned Magistrate summoning the petitioner. The first objection is that Dainik Jagran is a leading newspaper and the alleged offensive publication, in respect of which the instant complaint has been filed, cannot constitute an offence within the meaning of Section 127-A of the Act. The publication was in Hindi Daily and bare perusal of the same makes it clear that it was only an advertisement published in the newspaper and can not constitute an ‘election pamphlet or poster’. Besides the restriction imposed by Section 127-A of the Act is that any such publication which does not bear the name, address of the printer or the publisher, will be covered within the meaning of offence. The newspaper is a leading newspaper and the publisher of the Hindi Daily is a known figure, besides the newspaper itself is registered under the provisions of the Press and Registration of Books Act, 1867. So far Section 127-A (b) of the Act relates to the prior permission of the Chief Electoral Officer or the District Magistrate concerned, it is submitted that no permission is required since the publication was only an advertisement in Hindi Daily which is published every day. 6. The next submission is that Section 127-A (3)(b) of the Act defines “election pamphlet and poster” as any printed pamphlet, handbill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or poster having the reference to an election. The alleged publication has been annexed as Annexure-5 to the writ petition. The next submission is that the complaint filed by the respondent No. 2 is misconceived and vague. Besides, no objection whatsoever was raised by any administrative authority or any officer conducting the election regarding alleged offensive publication. It is also argued that the complaint is liable to be quashed on the ground of limitation under Section 468, Cr.P.C., as the punishment provided under Section 127-A(4) is for a term which may extend to six months or with fine which may extend to two thousand rupees, or with both. 7. It is also argued that the complaint is liable to be quashed on the ground of limitation under Section 468, Cr.P.C., as the punishment provided under Section 127-A(4) is for a term which may extend to six months or with fine which may extend to two thousand rupees, or with both. 7. Sri V.S. Singh has disputed each and every argument of the Counsel for the petitioner. Counter affidavit has been filed. He states that the definition of the word pamphlet and poster as defined under Section 127-A(b) covers objectionable publication and constitute an offence within the meaning of the Act and the revisional Court has correctly interpreted the meaning of the word ‘poster and pamphlet in fact poster means Vigyapan. No declaration or permission was obtained from the Chief Electoral Officer and therefore it is clear that the petitioner has committed an offence and is liable to be punished, the impugned order can not be quashed. 8. After hearing the respective Counsel for the parties at length, and perusal of the record, it is necessary to read the provisions of Section 127-A of the Act which is quoted below : "127-A. Restrictions on the printing of pamphlets, posters, etc.—(1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and address of the printer and the publisher thereof. (2) No person shall print or cause to be printed any election pamphlet or poster— (a) unless a declaration as to the identity of the publisher thereof, signed by him and attested by two persons to whom he is personally known, is delivered by him to the printer in duplicate, and (b) unless, within a reasonable time after the printing of the document, one copy of the declaration is sent by the printer, together with one copy of the document,— (i) where it is printed in the capital of the State, to the Chief Electoral Officer, and (ii) in any other case, to the District Magistrate of the District in which it is printed. (3) For the purposes of this section,— (a) any process of multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and the expression “printer” shall be construed accordingly; and (b) “election pamphlet or poster” means any printed pamphlet, handbill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand-bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instructions to election agents or workers. (4) Any person who contravenes any of the provisions of sub-sec. (1) or sub-sec. (2) shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.” 9. On close examination of the aforesaid provision, it is clear that to constitute an offence within the meaning of Section 127-A(i) of the Act, :it is essential that the name of printer or publisher of the objectionable election, poster or pamphlet should be missing. Meaning thereby if it is discovered that an accused has got certain publication made, poster or pamphlet prepared for the purposes of election without disclosing his name then an offence can be said to be established. In the instant case, the publication regarding which the complaint has been filed, is brought on record. Admittedly the publication was in a renowned Hindi Daily which is widely circulated and the name of editor is very clearly printed in the newspaper, it cannot be said that there was concealment on the part of the printer. The address, name of head office and branch office is absolutely clear and, therefore, ingredient of Section 127-A(i) of the Act does not stand fulfilled and cannot be said to constitute an offence. It is also to be noticed that the meaning of the word “election pamphlet” or “poster” has been explained in Section 127-A(3)(b) of the Act. Besides the dictionary meaning of the words pamphlet and poster are also as; Pamphlet—Pamphlet is a very thin book with a paper cover, containing information about a particular subject (Leaflet). Poster—(i) Poster is a large notice, often with a picture on it, that is put in a public place to advertise (Placard). Besides the dictionary meaning of the words pamphlet and poster are also as; Pamphlet—Pamphlet is a very thin book with a paper cover, containing information about a particular subject (Leaflet). Poster—(i) Poster is a large notice, often with a picture on it, that is put in a public place to advertise (Placard). I Election Poster is a poster campaign (an attempt to educate people by using posters). (ii) A large picture that is printed on paper and put on a wall as decoration. (iii) A person who posts a message on a Message Board, (a place on a website where people can read or write message). 10. The dictionary meaning as well as definition of the two words given in the Act if read together, makes it clear that in its judgment interpretation given by the revisional Court is not correct. It is evident that the alleged publication is only by way of an advertisement. Assuming it is not an advertisement, even then it is a newspaper item and such publications are printed in every newspaper. These publications appear in the newspaper every day specially at the time of election and cannot be said to be an offensive poster to constitute an offence punishable under the Act. 11. The objections by the learned Counsel for the respondents raised regarding prior permission by the Election Officer or the District Magistrate as provided under Section 127-A(2) of the Act is also wrong. I am of the considered view that no such permission was required since it was neither an election poster or pamphlet and did not require any permission whatsoever. Learned Counsel for the petitioner has also clearly stated that no proceedings were initiated against Hindi Daily either by Election Commissioner or under the provisions of Press and Registration of Books Act, 1867. I am not in agreement with the contention of the learned Counsel for the respondents regarding allegation made in his counter affidavit. The complaint lodged by the contesting respondents and the proceedings initiated against the petitioner are without any basis. No offence appears to have been made out. The impugned orders dated 23.1.2002 and 12.4.2002 summoning the accused to face the trial are hereby quashed. The complaint was rightly dismissed under Section 203, Cr.P.C. vide order dated 31.7.2000. Accordingly, the writ petition is allowed. ————