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1994 Supreme(Del) 657
High Court Of Delhi
RATTAN - Appellant
Versus
RAJESH KHANNA - Respondent
CRIMINAL APPEAL 69 of 1993
Decided On : 09/28/1994
ARUN BHARDWAJ, R.M.TIWARI
The dismissal of a complaint under Section 203 of the Code of Criminal Procedure must be based on judicially sound grounds and cannot be based on mere probabilities or improbabilities of individual items of evidence.
Headnote:
CRIMINAL LAW - UNDUE INFLUENCE AT ELECTIONS - SECTION 171-C, INDIAN PENAL CODE - REPRESENTATION OF PEOPLE ACT, 1951 - SECTIONS 128, 129, 130 - SCOPE AND INTERPRETATION - DISMISSAL OF COMPLAINT - JUDICIAL REVIEW.
Fact of the Case:
The petitioner, a candidate in the Lok Sabha election, filed a complaint against the respondents, alleging that they committed offenses under Section 171-C of the Indian Penal Code and Sections 128, 129, and 130 of the Representation of People Act, 1951. The complaint alleged that the respondents interfered with the free exercise of the petitioner's electoral right by showing the election symbol of the Congress-I party to the voters at a polling station.
Finding of the Court:
The trial court dismissed the complaint, holding that no case was made out against the respondents. The petitioner filed a revision petition challenging the trial court's order.
Issues: 1. Whether the trial court erred in dismissing the complaint without considering the evidence produced by the petitioner? 2. Whether the respondents' actions constituted undue influence under Section 171-C of the Indian Penal Code? 3. Whether the respondents violated Sections 128, 129, or 130 of the Representation of People Act, 1951?
Ratio Decidendi: 1. The scope of inquiry under Section 202 of the Code of Criminal Procedure is limited to ascertaining the truth or falsehood of the allegations in the complaint, for the purpose of determining whether a prima facie case for issuing process has been made out. The Magistrate cannot refuse to issue process if the evidence before him, taken at face value, makes out a prima facie case. 2. Undue influence at elections, as defined in Section 171-C of the Indian Penal Code, consists in voluntary interference or attempt at interference with the free exercise of any electoral right. Mere canvassing for a candidate does not amount to undue influence. There must be something more, such as a threat, injury, or inducement of divine displeasure, that puts pressure or tyranny on the mind of the voter or candidate. 3. Section 128 of the Representation of People Act, 1951, relates to the maintenance of secrecy of voting by election officials. Section 129 prohibits persons on election duty from acting for candidates or influencing voting. Section 130 prohibits canvassing in or near polling stations. The respondents' actions did not violate any of these provisions.
Final Decision: The revision petition was dismissed, upholding the trial court's order dismissing the complaint.
( 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. 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.
