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2017 Supreme(Del) 675
IN THE HIGH COURT OF DELHI AT NEW DELHI
MUKTA GUPTA, J.
Election Commission of India - Petitioner
Versus
Mukhtar Ansari & Anr. - Respondents
Crl.M.C. 689 of 2017 & Crl.M.A. 2923 of 2017 (stay)
Decided On : 27-02-2017
For the Petitioner: Mr. Dayan Krishnan, Mr. Amit Sharma, Mr. Dipesh Sinha, Ms. Aakashi Lodha
For the Respondents: Mr. Kapil Sibal, Mr. Salman Khursheed, Mr. S.S. Gandhi, Mr. Sudhir Nandrajog, Mr. R.K. Thakur, Mr. Jubair Ahmad Khan, Mr. Deepak Sharma, Mr. Qadri, Mr. Azra Rehman, Mr. Rishabh Jain, Mr. Sandeep, Mr. B. Mishra, Ms. Ritu Negi, Ms. Surya Rajappan, Mr. U.P. Singh, Mr. Sanjeev Bhandari, Mr. Ratnakar Das, Mr. Anil Mittal, Ms. Komal Aggarwal, Mr. Arvind K. Nigam, Mr. Mikhil Sharda, Mr. Akshay Bhandari, Mr. Parth Awasthi
The Court emphasized that the right to contest elections did not grant a legal right to canvass, and no candidate could interfere with the process of a free and fair election.
Headnote:
Election Commission - Custody Parole - 324 of the Constitution of India, 439 Cr.P.C. - Summary
Fact of the Case:
The petitioner challenged the order granting custody parole to the accused, allowing him to campaign for elections. The Election Commission contended that the order adversely affected free and fair elections and violated its instructions. The accused, an under trial prisoner, argued for his right to contest and canvass for elections.
Finding of the Court:
The Court found that the impugned order violated the Election Commission's instructions and the Code of Criminal Procedure. It noted that the accused was not granted bail and the order effectively functioned as temporary bail, which was beyond the Court's power.
Issues: The issues included the Election Commission's locus standi, the legality of the impugned order, and the accused's right to contest elections while in custody.
Ratio Decidendi: The Court held that the impugned order was illegal as it violated the Election Commission's instructions and the Code of Criminal Procedure. It emphasized that the accused's right to contest elections did not translate into a legal right to canvass, and no candidate could interfere with the process of a free and fair election.
Final Decision: The petition and the application were disposed of, setting aside the impugned order.
1. Aggrieved by the order dated 16th February, 2017 disposing off the application of respondent No.1 granting him permission to go out with armed guards in the daytime to canvass for his elections, the petitioner prefers the present petition. The operative portion of the impugned order is as under:-
“9. The present application has been filed on behalf of the applicant/accused Mokhtar Ansari for granting custody parole to the applicant/accused for campaigning and canvassing for election in Mau Constituency to be held on 04.03.2017. Assembly election for Mau Constituency have been declared to be held on 04.03.2017 and the result thereof shall be declared on 11.03.2017. It is not disputed that the applicant/accused is a sitting MLA from Mau Constituency, U.P. for the last four terms. It is also not disputed by the CBI that applicant Mokhtar Ansari is contesting the election from Mau Assembly Constituency.
10. Perusal of the file shows that the applicant/accused has earlier also been granted custody parole for contesting the elections by Sh. A.K. Mendiratta Ld. ASJ, Tis Hazari vide his order dated 03.05.2014. I have perused the said order and perusal of the same reveals that earlier also the applicant/accused was granted custody parole for contesting the election by Ms. Savita Rao Ld. ASJ vide her Order dated 30.01.2012. The accused/applicant Mokhtar Ansari did not misuse this liberty granted to him.
11. Therefore, keeping in view the facts and circumstances of the case and the fact that the applicant/accused was earlier granted custody parole on two occasions and he did not misuse the liberty of custody parole granted to him, the applicant/accused Mokhtar Ansari is granted custody parole in R.C. No.8 (S)/2006/CBI/SCB-II/ND (Crime No.589/2005) P.S. (Bhanwarkol) till 04.03.2017 from 7.00 a.m. to 8.00 p.m. everyday, subject to the following terms and conditions:-
1. The applicant/accused Mokhtar Ansari shall not misuse this liberty in any manner nor he shall influence or threat the witnesses or tamper with the evidence.
2. The applicant/accused shall not be taken outside the limits of Mau Constituency for the purpose of campaigning. It is further directed that during the custody parole, the applicant/accused Mokhtar Ansari shall not indulge in any such activity which can be prejudicial to the fair trial of this case.
3. The expenses of custody parole shall be borne by the applicant/accused Mokhtar Ansari.”
12. The applicant/accused Mokhtar Ansari is stated to be lodged presently at Lucknow Jail, U.P. The Superintendent Lucknow Jail, U.P., shall make the necessary arrangements for taking the accused/applicant Mokhtar Ansari to Mau Constituency. The Superintendent Jail Lucknow shall also make proper arrangement for the security of the applicant/accused Mokhtar Ansari.
13. Copy of this order be sent to Superintendent Lucknow Jail, U.P. for information and necessary action. As requested, copy of this order be also given dasti to the Ld. Counsel for the applicant/accused Mokhtar Ansari.”
2. Learned Senior Counsel for the Election Commission submits that the Election Commission is bestowed with extensive powers under Article 324 of the Constitution of India and where an order of the Court would adversely affect and obstruct the Election Commission in conducting free and fair elections, the Election Commission would be within its jurisdiction to challenge the same. Reliance is placed on the decisions reported as 1978 (1) SCC 405 Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi & Ors., 1984 Suppl SCC 104 Election Commission of India vs. State of Haryana, 1984 (2) SCC 656 A.C. Jose vs. Sivan Pillai, and 2002 (5) SCC 294 Union of India vs. Association for Democratic Reforms & Anr. Referring to question No.49 of Frequently Asked Questions to Model Code of Conduct for Guidance of Political Parties and Candidates it is contended that before grant of custody parole, the Election Commission ought to have been consulted.
