Delhi District Court
State vs Rakhi Bidlan on 16 August, 2018
IN THE COURT OF SAMAR VISHAL,
Additional Chief Metropolitan Magistrate - II
Patiala House Courts, New Delhi
FIR No: 699/2014
PS : Mangol Puri
U/s 188 Indian Penal Code & 130 Representation of People
Act 1951
Date of Institution of Case : 18.03.2015
Judgment Reserved on : 16.08.2018
Date of Judgment : 16.08.2018
(a) The serial no. of the case : 13099/2018
(b) The date of commission of offence : 10.04.2014
(c) The name of complainant : Sh Dev Karan Singh,
Nodal Officer, MCC,
PC-05, North West
Delhi(SC)
(d) The name, parentage, of accused 1) : Ms. Rakhi Bidlan
D/o Sh Bhupender
Singh Bidlan
R/o T-112, Mangol
Puri, Delhi
(e) The offence complained of : U/s 130 of
Representation of
People Act, 1951
(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of order : 16.08.2018.
JUDGMENT
1. The accused Rakhi Bidlan has been prosecuted for commission of offence under section 130 of the FIR No. 699/14 1/7 State vs Rakhi Bidlan Representation of People Act, 1951(herein after referred as RP Act).
2. The case of the prosecution is that on 10.04.2014, the date on which polling was going on for Lok Sabha Elections, the accused Ms. Rakhi Bidlan came to cast her vote at the polling station in Sarvodaya Kanya Senior Secondary School, Mangol Puri. She was wearing a cap on which it was written "Mein Hu Aam Aadmi Mujhey Chahiya Swaraj". On the same day, one Sh. Prasanta Verma of BJP Legal Cell made a complaint to the Nodal Officer (MCC) Dev Karan Singh on which the nodal officer requested the police to register a case under section 130 of RP Act, 1951 and section 188 of the Indian Penal Code.The police registered the case immediately and after investigation filed the charge-sheet under the aforesaid provisions on 18.03.2015. Later on, a complaint under section 195 Cr.PC was also filed in the Court on 05.05.2015 alongwith an application under section 473 Cr.PC for condonation of delay in filing the complaint under section 195 Cr.PC belatedly.
3. The Court vide order dated 09.09.2015, declined the cognizance of offence under section 188 IPC. The Court however allowed the application for condonation of delay and took cognizance of offence under section 130 of RP Act. On 27.06.2016, the accused was given the notice under section 251 Cr.PC to proceed with the trial. The notice was framed for commission of offence under section 188 of Indian Penal Code and 130 of Representation of People Act. Since, the cognizance of offence under section 188 IPC was already declined, it seems that framing of notice under FIR No. 699/14 2/7 State vs Rakhi Bidlan section 188 IPC was erroneous and the prosecution of the accused has to be considered only for violating section 130 of RP Act. Further 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 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 FIR No. 699/14 3/7 State vs Rakhi Bidlan 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 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). 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.
4. To prove its case, the prosecution examined six witnesses. The first witness is Dev Karan Singh, Election Officer, on whose complaint the FIR was registered. He is not a witness of the fact as he only received information of the incident and forwarded his complaint Ex.PW1/A to the police. He has not seen the accused committing breach of law as alleged. Constable Rajender and Sub-Inspector Khushboo Yadav are the police witnesses, who were present on the spot. Their deposition is to the effect that Ms. Rakhi Bidlan came at the polling station to cast her vote wearing a white cap with the words "Mein Hu Aam Aadmi Mujhey Chahiya Swaraj". Sub Inspector Khusbhoo has stated that she asked the accused to remove her cap but the accused did not paid any heed to her advise and went inside the polling booth to cast her vote. However, the testimony of constable Rajender FIR No. 699/14 4/7 State vs Rakhi Bidlan is contrary to her statement and is a blow to the case of prosecution as he said that the accused has removed her cap before entering the polling station. The prosecution has also cited an independent witness Rajan but he has been hostile to the prosecution and deposed that he do not know about anything in this case.
5. In this factual background, it has to be seen whether the accused Ms. Rakhi Bidlan has committed the offence under section 130 RP Act. Section 130 RP Act reads as under :-
"130. Prohibition of canvassing in or near polling station.- (1) No person shall, on the date or dates on which a poll is taken at any polling station, commit any of the following acts within the polling station or in any public or private place within a distance of "[one hundred metres] of the polling station, namely, -
(a) canvassing for votes; or
(b) soliciting the vote of any elector, or
(c) persuading any elector not to vote for any particular candidate; or
(d) persuading any elector not to vote at the election; or
(e) exhibiting any notice or sign(other than an official notice) relating to election (2) Any person who contravenes the provisions of sub-
section (1) shall be punishable with fine which may extend to two hundred and fifty rupees (3) An offence punishable under this section shall be cognizable.
6. The allegations against the accused is not of canvassing for votes or of soliciting the vote of any elector or persuading FIR No. 699/14 5/7 State vs Rakhi Bidlan any elector not to vote for any particular candidate or persuading any elector not to vote at the election. The allegation is that by wearing a cap with the script "Mein Hu Aam Aadmi Mujhey Chahiya Swaraj", she has exhibited a sign relating to election. According to prosecution, this cap is a symbol of her party that is Aam Aadmi Party. The defence of the accused is that this cap is not the symbol of her party and her party's symbol is "broom". The other contention of the defence is that the photographs Ex.P1 to P4 relied upon by the prosecution were taken by Sub Inspector Khushboo from her mobile phone but these photographs are not supported with the certificate under section 65B of the Indian Evidence Act nor the mobile phone which was used for taking these photographs was subjected to forensic scrutiny to establish the authenticity of these photographs.
7. Therefore, on the basis of aforesaid discussion, it is clear that the cap which the accused was wearing was not containing the symbol of her party and therefore will not come within the prohibition of section 130 (1) (e) of RP Act, 1951. Further, one of the prosecution witness has said that she has removed the cap before entering into the polling station. The independent witness cited by the prosecution is hostile towards it. For lack of the certification under section 65 of the Indian Evidence Act, the photographs Ex.P1- to P4 are not reliable.
8. In a criminal trial, the burden is on the prosecution to establish its case against the accused beyond reasonable doubt. This burden cannot be shifted to the accused and has to be necessarily discharged by the prosecution itself by FIR No. 699/14 6/7 State vs Rakhi Bidlan leading cogent and trustworthy evidence.
9. In the facts and circumstances of the case, the prosecution is unable to prove its case beyond reasonable doubts. Accordingly the accused Ms. Rakhi Bidlan is acquitted of the charges.
Announced in the open court this 16th day of August 2018 SAMAR VISHAL ACMM-II (New Delhi), PHC FIR No. 699/14 7/7 State vs Rakhi Bidlan