Delhi District Court
State vs Sushil Kumar Gupta on 15 October, 2018
IN THE COURT OF SAMAR VISHAL,
Additional Chief Metropolitan Magistrate - II
Patiala House Courts, New Delhi
FIR No: 451/2013
PS : Kirti Nagar
U/s 188 of the Indian Penal Code
Date of Institution of Case : 28.11.2014
Judgment Reserved on : 22.09.2018
Date of Judgment : 15.10.2018
(a) The serial no. of the case : 14276/2018
(b) The date of commission of offence : 29.11.2013
(c) The name of complainant : Sh. Sushil Kumar Bali
(d) The name, parentage, of accused : Sushil Kumar Gupta,
S/o Sh Kali Ram Gupta,
R/o 4/12, East Punjabi
Bagh, New Delhi
(e) The offence complained of : U/s 188 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted.
(h) The date of order : 15.10.2018
JUDGMENT
1. Sh. Sushil Kumar Gupta has been prosecuted as an accused in this case for commission of offence under section 188 of the Indian Penal Code. Section 188 IPC punishes disobedience of an order duly promulgated by a public servant and says that whoever, knowing that, by an order promulgated by a public servant lawfully empowered FIR No. 451/2013 1/9 State vs Sushil Kumar Gupta to promulgate such order, is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees.
2. In this case FIR was registered against the accused on 29.11.2013 on a complainant of Sh.Suresh Kumar Bali, Executive Magistrate. He complained that on 29.11.2013, at around 5:00 pm, the accused Sh. Sushil Kumar Gupta, Congress candidate with about 100 persons undertook political rally in Ramesh Nagar. The accused was asked to show the permission for the padyatra but he was unable to show any permission. He told that he was doing door to door campaign and is not leading any procession. The Executive Magistrate asked him to stop the rally and to disperse. The accused instead of stopping the rally went ahead.
3. The complainant executive magistrate gave a complaint to the police in this regard Ex.PW1/A on which the present FIR was registered. The police investigated the matter and filed FIR No. 451/2013 2/9 State vs Sushil Kumar Gupta this charge sheet. The police also obtained a complaint under section 195 of the Code of Criminal Procedure from Sh Bansh Raj, Additional District Magistrate (Central).
4. As the trial proceeded, the prosecution examined nine witnesses the most important of which is PW-1 complainant Sh. Sushil Kumar Bali, the Executive Magistrate on whose complaint the FIR was registered. PW-2 ASI Balbir Singh, PW-3 Sh. Bans Raj, PW-4 W/SI Surender Kaur and SI Ram Phool are other witnesses of prosecution to substantiate the accusation.
5. After the prosecution evidence, the accused Sh. Sushil Kumar Gupta was examined under section 313 of the Code of Criminal Procedure. He stated that on the date of incident, he was a Congress candidate and was doing door to door canvassing in the area of his constituency Moti Nagar for which no written permission from the concerned DCP was required. He had already informed the SHO regarding his door to door canvassing. Moreover, he had left the venue of door to door canvassing within five minutes after talking with Sh S. K. Bali. Sh S. K. Bali had wrongly got the three cases registered against him for the same rally in different police stations. He further submits that he is innocent and had been falsely implicated.
6. I have heard Ld. public prosecutor and Ld. counsel for accused.
7. It is to be understood that the accused Sh. Sushil Kumar Gupta has been prosecuted for violating the Model Code of FIR No. 451/2013 3/9 State vs Sushil Kumar Gupta Conduct of Election Commission Of India placed on record as Mark X. During evidence, the complainant Sh. Bansh Raj disclosed that the accused has violated Clause (III) of Model Code of Conduct. The violation alleged is that he took out the procession without taking the permission of the police. The stand of the accused is that he had informed the SHO of the concerned police station regarding his door to door canvassing.
8. Be that as it may, the issue is whether any such permission is required or not. For this, Clause (III) of Model Code of Conduct is relevant and is as
9. :- Procession -
(1) Party or candidate organising a procession shall decide before hand the time and place of the starting of the procession, the route to be followed and the time and place at which the procession will terminate.
There shall ordinarily be no deviation from the programme.
(2) The organisers shall give advance intimation to the local police authorities of the programme so as to enable the latter to make necessary arrangements. (3) The organisers shall ascertain if any restrictive orders are in force in the localities through which the procession has to pass, and shall comply with the restrictions unless exempted specially by the competent authority. Any traffic regulations or restrictions shall also be carefully adhered to. (4) The organisers shall take steps in advance to arrange for passage of the procession so that there is no block or hindrance to traffic. If the procession is very long, it shall be organised in segments of suitable lengths, so FIR No. 451/2013 4/9 State vs Sushil Kumar Gupta that at convenient intervals, especially at points where the procession has to pass road junctions, the passage of held up traffic could be allowed by stages thus avoiding heavy traffic congestion.
(5) Processions shall be so regulated as to keep as much to the right of the road as possible and the direction and advice of the police on duty shall be strictly complied with.
(6) If two or more political parties or candidates propose to take processions over the same route or parts thereof at about the same time, the organisers shall establish contact well in advance and decide upon the measures to be taken to see that the processions do not clash or cause hindrance to traffic. The assistance of the local police shall be availed of for arriving at a satisfactory arrangement. For this purpose the parties shall contact the police at the earliest opportunity. (7) The political parties or candidates shall exercise control to the maximum extent possible in the matter of processionists carrying articles which may be put to misuse by undesirable elements especially in moments of excitement.
(8) The carrying of effigies purporting to represent members of other political parties or their leaders, burning such effigies in public and such other forms demonstration shall not be countenanced by any political party or candidate.
(9) The organizers shall ascertain if any restrictive orders are in force in the localities through which the procession has to pass, and shall comply with the restrictions unless exempted specially by the FIR No. 451/2013 5/9 State vs Sushil Kumar Gupta competent authority. Any traffic regulations or restrictions shall also be carefully adhered to.
10. Therefore, what is mandated by this Code of Conduct is that a candidate contesting the election has to intimate about the procession to the local police authorities. Therefore, the foundation of the case is itself not correct as the accused was not required to take permission from the local police authorities to carry on with his padyatra/ procession and only has to give intimation to the local police.
11. The next important point of consideration is whether a person can be prosecuted under Section 188 IPC for violation of Model Code of Conduct of Election Commission of India. The question can be answered in two ways with reference to this case. Firstly, the Model Code of Conduct by any stretch of imagination can not be said to be an order contemplated under section 188 IPC. Model Code of Conduct is a document meant only for guidance of political parties and candidates. Model Code of Conduct was evolved with the consensus of political parties in India with an intent to strengthen the roots of political system in our country. Apparently, it has no statutory backing and many of its provisions are not legally enforceable and it is the political parties who have themselves consented to abide by the principles embodied in the said Code and therefore it binds them to respect and observe it in letter and spirit. Therefore, it is only the public opinion which is the moral sanction for the enforcement of the Model Code of Conduct due to which reason the Election Commission ensures its observance by the political parties and their candidates in FIR No. 451/2013 6/9 State vs Sushil Kumar Gupta discharge of its constitutional obligations of superintendence, direction and control of elections as provided under Article 324 of the Constitution of India. The Model Code of Conduct covers in detail the important aspects of electioneering like meetings, and processions, speeches and slogans, posters and placards etc. and is only in the nature of an appeal to the political parties and their candidates to observe a minimum standard of conduct and behaviour to ensure free and fair elections. The model Code existing as on date, lays stress on certain minimum standards of good behaviour and conduct of political parties, candidates, their workers and supporters during the election campaigns apart from how a public meeting, procession by the political parties and candidates are required to hold and how the political parties should conduct themselves on the polling day at bolling booths. The Election Commission had in the mid of 1980's suggested that certain provisions of the Model Code should be given statutory sanction by bringing them on the statute book. The Goswami Committee on Electoral Reforms also went into the matter and enumerated certain items which should be brought within the ambit of the electoral law making a violation thereof an electoral offence but later in the year 1990 the Election Commission changed its mind and was then of the view that bringing the Code on the statute book would be defeating the measure because any violation of the code must have a quick reaction and remedial measure which may not be possible if the matters are taken to the courts and become a subject of examination in a regular judicial process. The Election Commission also felt that any judicial pronouncement after the election is already over would have a little relevance and FIR No. 451/2013 7/9 State vs Sushil Kumar Gupta it accordingly withdrew its earlier recommendations to the Code as a statutory backing. The Election Commission is armed with sufficient authority and jurisdiction to hold any inquiry, take necessary steps, issue any directions or orders to ensure purity in elections by appropriately dealing with the violations. The Model Code of Conduct is a sacrosanct document which all political parties, candidates, workers are required to honour. The constitutional obligation cast upon the Election Commission is to ensure its compliance in letter and spirit and that its violation does not go unnoticed, unattended or unpunished (in case if the alleged violations has a statutory backing). While going through the website of Election Commission I found that where the provisions of law relating to offences and corrupt practices in connection with elections is provided, the offence of section 188 is not mentioned. Therefore, a person cannot be prosecuted for violation of the Model Code of Conduct. If such violation of the Model Code of Conduct comes within the purview of any election related offence under the Indian Penal Code or under the Representation of People Act, only then a person can be prosecuted for such offence.
12. Secondly, if it is an order as contemplated under section 188 IPC then, it is not clear from the document (Model Code of Conduct) itself that which public servant has passed this order. This is important because the cognizance of the offence under section 188 IPC can be taken only on a complaint of the public servant whose order has been violated or his superior. Sh. Bansh Raj who has made the complaint under section 195 Cr.PC was unable to tell that which public servant has issued this Model Code of Conduct.
FIR No. 451/2013 8/9State vs Sushil Kumar Gupta Without doubt, this Model Code of Conduct is of Election Commission of India which is a constitutional body and therefore ideally a person should be prosecuted on a complaint of Election Commission of India only. Therefore the requirement of Section 195 CrPC is not fulfilled in this case making the prosecution an empty formality.
13. Further, in order to attract an offence under Section 188 of the IPC, the disobedience must either cause or it must have tendency to cause obstruction, annoyance or injury as stated in this section. There has to be a factual proof of annoyance. Mere mental annoyance of the concerned authorities is not intended to be included in the section. In the present case, there is no such allegation that the padyatra or the procession of the accused has caused any obstruction, annoyance or injury to any person. Therefore, in the given facts and circumstances of the case, the accused Sushil Kumar Gupta cannot be convicted for the offence under section 188 IPC.
14. Accordingly, he is acquitted. Digitally signed by SAMAR SAMAR VISHAL Announced in the open court VISHAL Date:
2018.10.15 16:48:58 +0530 this 15th day of October 2018 SAMAR VISHAL ACMM-II (New Delhi), PHC FIR No. 451/2013 9/9 State vs Sushil Kumar Gupta