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It was alleged that Yediyurappa, while campaigning for BJP candidate Ramesh Jarkiholi, had appealed that the Veerashaiva Lingayat community members' votes must be consolidated and should not disperse here and there.
The Dharwad Bench of the Karnataka High Court recently quashed a complaint dated November 26, 2019, registered against Chief Minister BS Yediyurappa for offences alleging violation of the Election Code of Conduct.
The order passed by Justice Suraj Govindaraj reads as follows,
Karnataka High Court
The complaint was filed by one Laxman Allapur, who was deputed on election duty as a flying squad by the District Election Officer, Belagavi for the Gokak constituency by-elections.
It was alleged that Yediyurappa, while campaigning for BJP candidate Ramesh Jarkiholi, had appealed in his speech that the Veerashaiva Lingayat community members' votes must be consolidated and should not disperse here and there. As per the complainant, this act violated the Election Code of Conduct.
Subsequently, on the basis of the complaint, the police went on to register the same as a non-cognizable offence and made a requisition before the trial court seeking permission to investigate into the alleged offences.
Pursuant to this, the police registered an FIR, and after completion of the investigation, submitted the Final "B" Report before the trial court on June 25.
The trial court, in turn, rejected the said report. On June 26, it took cognizance and issued summons to the Chief Minister, after noting that a prima facie case was made out.
Yediyurappa then approached the High Court to quash this order under Section 482 of the Code of Criminal Procedure.
Arguments of Parties
Senior Counsel CV Nagesh, appearing for Yediyurappa, submitted that Section 123(3) of the RP Act under which the complaint had been registered, relates to corrupt practices. A proceeding for corrupt practice can be taken only against the candidate and not against a third party like the Chief Minister, he argued.
Further, it was contended that even though the words "agent or any other person" are used in Section 123(3), any action of such agent or any other person would only result in action to be taken against the candidate. The petitioner, therefore, cannot be subjected to any action under Section 123(3).
He also submitted that Section 171F of the Indian Penal Code (IPC) cannot be attracted, since the same relates to punishment for undue influence or impersonation in an election.
This apart, Nagesh stated that the Magistrate had not heeded the procedure to be followed upon receipt of the B-report. The Magistrate ought to have issued notice to the complainant seeking his acceptance or objection to the B-report, he said.
It was also argued that without an enquiry, no summons could have been issued to the petitioner, who is not a resident within the territorial jurisdiction of the Magistrate.
Refuting these arguments, Public Prosecutor VM Sheelvant submitted that the required procedure has been followed and that there are serious allegations made against the Chief Minister.
Though the offences invoked against Yediyurappa are under Section 123 of the RP Act 1951, it does not debar the prosecution of the petitioner, submitted Sheevant.
He also argued that the alleged offence relates to an election, but the same is required to be looked at in a larger conspectus so as to preserve the dignity and veracity of an election.
What the Court held
After carefully considering the rival submissions, the Single Judge Bench has summarised its findings as follows:
It is only the informant/complainant, who can seek permission for investigation from the Magistrate.
An action on a complaint pertaining to violation of Section 123 of the Representation of Peoples Act, 1951, i.e., on account of a corrupt practice being committed is limited to the candidate, resulting in his disqualification or voiding of his/her result.
Violation of Section 123 of the Representation of Peoples Act, 1951 in the present scheme of the legislation would amount to corrupt practice, providing a cause of action for filing of an election petition under Section 81 read with Section 100 and 101 of the Representation of Peoples Act, 1951; there can be no penal action initiated by way of criminal prosecution.
For initiation of criminal prosecution, the violation complained of should come within the ambit of Chapter III part VII of the Representation of Peoples Act, 1951. In the present case, at the most the allegations can be said to come under section 125 thereof, which require the establishment of promotion of enmity or hatred as a sine qua non, which has not been so done.
On the basis of the allegation made in the complaint, it cannot be prima facie concluded that the Petitioner has committed an offence under Section 171F of the IPC by exercising undue influence on the person/s who had gathered for an election rally in terms of Section 171C of the IPC.
On the filing of the B report, the Magistrate is required to notify the Informant/Complainant about the same. It is only if the Informant opposes or objects to the B report that the Magistrate can record the sworn statement of the Informant. If the sworn statement were to establish defects in the investigation, the Magistrate may set aside the B report and proceed with the case after taking cognisance.
A Magistrate cannot suo moto reject the B-report without notice being ordered on the complainant. A magistrate can reject the B-report only if the sworn statement of the Informant were to prima-facie make out on offence having been committed by the Accused.
A Magistrate would have to pass an order under Section 202(1) of the Cr.P.C. to indicate as to why process is being issued by the Magistrate to an accused who is not residing within the jurisdiction of that Court and for this purpose, sworn statement of the complainant as also the affidavit evidence if any of the complainant's witnesses could be recorded leading to an order by the Magistrate based on his satisfaction.
There would be no requirement of Section 65-B certificate at the stage of examination by the Magistrate whether to take cognisance or not. A Magistrate can always look into any electronic evidence, even if unaccompanied by a certificate under Section 65-B of the Indian Evidence Act.
[Read judgment here]