Bombay High Court
Deepak Ganpatrao Salunke vs Governor Of Maharashtra & Others on 18 July, 1998
Equivalent citations: 2000(5)BOMCR106, 1999CRILJ1224
Author: B.B. Vagyani
Bench: B.B. Vagyani
ORDER V.K. Barde, J.
1. The petitioner has contended that he is a social worker and Councillor of Kopargaon Municipal Council (District Ahmednagar). The elections for 12th Parliament were held in February-March, 1998. The respondent No. 6 is the member of the Legislative Assembly of the State of Maharashtra and the Home port folio is allotted to him. He was given oath as Deputy Chief Minister. Writ Petition No. 1507/1995 was filed before this Bench wherein it was urged that the Constitution of India only provides for the post of Chief Minister and Ministers and does not provide for the post of Deputy Chief Minister. There is no format of oath for the post of Deputy Chief Minister in the 3rd Schedule of the Constitution of India. Therefore, the appointment and assumption of oath by the respondent No. 6 be nullified by the writ of co-warranto. In the said writ petition, the present respondents Nos. 1, 2 and 6 were the parties and a submission was made by the respondent Ho. 7, Advocate General of the State of Maharashtra, that the description of the respondent No. 6 as Deputy Chief Minister is only descriptive and for all purposes, he is Minister like other members of the Council of Ministers. The description occurring as Deputy Chief Minister does not confer on him any power of the Chief Minister. On the basis of this statement, the writ petition was disposed of.
2. The petitioner has contended that the respondent No. 6 has no authority to appoint a Cabinet Minister or a State Minister on the Council of Ministers. That is the authority of Chief Minister alone as per Article 163(1) of the Constitution of India. In spite of all these circumstances, the respondent No. 6 poses himself in public to be the Deputy Chief Minister and as the one having authority at par with the Chief Minister. The respondent No. 6 claims that he has the authority to the extent of appointing a Minister or substitute Deputy Chief Minister in the Council of Ministers. These activities of the respondent are contemptuous to the statements made before this Court, in the said writ petition.
3. During the 12th Parliamentary elections, the respondent No. 6 posed himself as Deputy Chief Minister having the powers of Chief Minister and that amounted to the commission of offences covered by Chapter IX-A of Indian Penal Code. These activities also amount to corrupt practices within the meaning of section 123(3) of the Representation of the People Act, 1951. On account of this, the respondents Nos. 1 to 5 and 7 ought to have taken action against respondent No. 6. The petitioner approached the respondents Nos. 1 to 5 and 7, with a request, to take action against the respondent No. 6. But in spite of repeated reminders, there was no response from the respondents Nos. 1 to 5. Hence, the petitioner has filed this criminal writ petition.
4. The Election Commission of India made applicable the Code of Conduct for the 12th Parliamentary elections, from December 1997. The Code of Conduct has sanctity of law. It is framed in exercise of subordinate legislative powers by the Election Commission of India.
5. For the 12th Parliamentary elections, there was one alliance of Shivsena and Bhartiya Janata Party. While the another alliance was of Indian National Congress, Republican Party of India and Samata Party. Both these alliances had nominated candidates for Baramati and Ahmednagar Constituencies.
6. On 9-2-1998, at Morgaon, in Baramati Parliamentary Constituency, election campaign was inaugurated by Bhartiya Janata Party (hereinafter referred to as "B.J.P." for the purpose of brevity). In the public meeting held there, the respondent No. 6 was described as Deputy Chief Minister by the B.J.P. The respondent No. 6, in his public speech, gave open offer to the leaders of Republican Party of India (hereinafter referred to as "RPI" for the purpose of brevity), and more particularly, to four candidates of RPI who were contesting 12th Parliamentary elections, that the respondent No. 6 was ready to surrender his seat of Deputy Chief Minister and to offer the same to any one of the four candidates unanimously nominated by them and he further said that the RPI should withdraw its backing to the Congress Party and support B.J.P. in all constituencies in Maharashtra. The petitioner has contended that this offer was even published in newspapers. The cutting of the newspaper is also annexed to the petition and this news was also flashed on television and radio. The petitioner has contended that the said statement is not denied by the respondent No. 6 or by the candidates who contested the election or by any other leader of B.J.P. till the date of filing of the petition.
7. The petitioner has further contended that the said statement was repeated by the respondent No. 6 at Pune and Ahmednagar on following days and, so also, uttered again in the public meetings held for election campaign at Ahmednagar, reporting of which is made in various newspapers.
8. The petitioner has contended that these statements by the respondent No. 6 amount to offence under the Indian Penal Code and corrupt practices under section 123 of the Representation of the People Act, 1951.
9. The petitioner has contended that this statement offering the post of Deputy Chief Minister was made by the respondent No. 6 to gain the votes of particular community in the election and the respondent No. 6 had acted as an agent of the B.J.P. and the candidate contesting election as nominated by B.J.P. The petitioner has contended that section 171-B of Indian Penal Code defines "Bribery" and section 171-E of the Indian Penal Code provides for punishment for committing the offence under section 171-B. The respondent No. 6 has committed the offence punishable under section 171-E of the Indian Penal Code. Furthermore, by making false statements, respondent No. 6 has committed the offence punishable under section 171-G of Indian Penal Code. The petitioner has further contended that under Clause 3 of section 123 of the Representation of the People Act, 1951, if any appeal is made to vote or to refrain from voting on the ground of community, it amounts to corrupt practices. The appeal made by the respondent No. 6 to RPI was with an intention to seek the votes of the class of people supporting RPI.
10. As these statements were made when the Code of Conduct was in operation, the respondent No. 6 has committed the breach of rules of Code of Conduct.
11. The petitioner has further contended that on 22-2-1998, he sent his representation to the Election Commission of India, Chief Election Officer of the State of Maharashtra, and, District Election Officers at Pune and Ahmednagar, narrating all these details and requested that the action be taken against the respondent No. 6. The Governor of Maharashtra was also requested to give directions to the concerned authorities to launch prosecution against the respondent No. 6, or, to grant permission to the petitioner to prosecute the respondent No. 6. However, he has not received and reply to his communications.
12. As the respondents Nos. 1 to 5 have not taken appropriate action in this matter, the petitioner is constrained to file the petition.
13. It is contended by the petitioner, that the respondent No. 6 is public servant as defined under the Indian Penal Code and, therefore, sanction under section 197 of the Code of Criminal Procedure, 1973, is required for prosecuting the respondent No. 6.
14. It is, therefore, prayed by the petitioner, that the respondent No. 1 be directed to grant sanction to the petitioner to prosecute respondent No. 6, and, respondents Nos. 2 to 5 be directed to initiate civil and criminal prosecution against the respondent No. 6, or, grant sanction to the petitioner to take such steps. The petitioner has also prayed that the respondents Nos. 1 to 5 be directed to pay the petitioner, exemplary cost at Rs. 50,000/-.
15. Heard Mr. P.G. Godhamgaonkar, Counsel for the petitioner; Mr. A.M. Kanade, Public Prosecutor, for respondents Nos. 1 to 5 and 7; and Mr. Nitin Pradhan, Counsel for respondent No. 6.
16. The first leg of the contention of the petitioner is that the respondent No. 6 is posing himself as Deputy Chief Minister, the post which is not recognised under the Constitution of India, and that amounts to making a false statement. For this purpose, the petitioner has specifically made a reference to Writ Petition No. 1507/ 1995 filed against the respondent No. 6 and others. It is strongly contended that in the said writ petition, Advocate General of the State of Maharashtra made a statement that describing Mr. Gopinath Munde, the present respondent No. 6 as Deputy Chief Minister is descriptive only and for all purposes, he is a Minister like other members of the Council of Ministers. The description as Deputy Chief Minister does not confer on him any powers of the Chief Minister. It is contended that on the basis of this statement made by the learned Advocate General the said writ petition was disposed of.
17. However, the learned Counsel for the respondent No. 6 has pointed out that the said writ petition was not disposed of on the basis of the statement made by the learned Advocate General. But after considering the position under the law and the Constitution, the writ petition was dismissed. On going through the judgment in the said writ petition, reported in Devidas v. Gopinath Munde, , we do find that the writ petition was dismissed after considering the position of law under the Constitution and not on the basis of statement made by the learned Advocate General. The statement was only taken into consideration to ascertain the position of the Deputy Chief Minister i.e. of present respondent No. 6. This judgment does not prohibit the respondent No. 6 or, for that matter, any other person to describe the respondent No. 6 as Deputy Chief Minister.
18. For all practical purposes, the respondent No. 6 is recognised by people at large and by the Chief Minister and members of the Council of Ministers, as Deputy Chief Minister. However, there is no doubt in anybody's mind, that the respondent No. 6 is not having any powers of the Chief Minister as invested in Chief Minister under the Constitution of India. So, it cannot be said that if the respondent No. 6 poses himself as Deputy Chief Minister and if the leaders and members of B.J.P. describe him as Deputy Chief Ministers, either privately or publicly, any false statement is made. No misrepresentation or no offence is committed by describing the respondent No. 6 as Deputy Chief Minister. So, all the contentions raised by the petitioner in the petition, in this respect, alleging that the respondent No. 6 has made false statements and has thereby committed breach of Code of Conduct or has indulged in corrupt practices, as described under section 123 of the Representation of the People Act, 1951, are without any substance.
19. The main bone of contention of the petitioner is that the respondent No. 6 made a statement in public meeting while canvassing for the B.J.P. candidates for Parliamentary elections, that if the RPI were to give support to B.J.P.-Shivsena alliance, he will agree to give Deputy Chief Ministership to a member of the RPI. In support of this contention, the petitioner has produced on record, newspaper cuttings from the daily newspaper "Samna" in its issue dated 10th February, 1998; daily newspaper "Lokmat" published from Ahmednagar in its issue dated 10th February, 1998; daily newspaper "Lokmat" published from Ahmednagar in its issue dated 15th February, 1998; and, daily newspaper "Maharashtra Times" in its issue dated 11th February, 1998. The learned Counsel for the respondent No. 6 has made a categorical statement before this Court, that the respondent No. 6 did make such statement in public meetings and also at the time of replying the reports of newspapers and he stands by the said statement.
20. The basic question is whether the statement made by respondent No. 6, that RPI should support the Shivsena-BJP alliance and then he will see that a member of RPI would be made Deputy Chief Minister, amounts to bribery as defined under section 171-B of Indian Penal Code.
21. The learned Counsel for the petitioner has argued that this statement amounts to giving gratification to RPI and also amounts to an inducement to voters from particular section of community to exercise their electoral right in a particular manner i.e. in support of BJP-Shivsena alliance.
22. Section 171-B(1)(i) of Indian Penal Code reads as follows:
"Whoever gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right, commits the offence of bribery:
Provided that a declaration of public policy or a promise of pubic action shall not be an offence under this section."
Here, it will be noticed that the statement made by the respondent No. 6 is not giving any offer to any individual but it is an offer to RPI and the condition is that the RPI should support BJP-Shivsena alliance in the election. This is nothing but a political statement made from public platform describing policy of the party, that if some other party gives support to BJP-Shivsena alliance in the Parliamentary elections, the other party i.e. RPI will be given share in political power. There is nothing in the statement, as reproduced above, from newspaper cuttings, indicating that any offer was given to any individual. Furthermore, there is nothing in the statement inducing any individual to exercise any electoral right in a particular manner.
23. The term "Electoral right" is defined under Clause "b" of section 171-A of Indian Penal Code. "Electoral right" means the right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or to refrain from voting at an election.
24. The learned Counsel for the petitioner has tried to put interpretation on the statement of the respondent No. 6, that a particular section of the community is being induced to vote in favour of BJP-Shivsena alliance by making such statement. However, such interpretation cannot be put on the statement made by the respondent No. 6.
25. The learned Counsel for the petitioner has urged that the Code of Conduct prescribes Do's and Don'ts" for the guidance of the candidates and political parties. Clause 8 of "Do's and Don'ts" reads : "Caste/communal feelings of the electors shall not be appealed to", and it is contended, that by giving such offer to RPI, the caste feelings of the electors are appealed. It is rather surprising that only the petitioner is finding such meaning in the appeal. The appeal is made to a political party which is recognised party under the provisions of the Representation of the People Act, and it is not made to any caste or community. So, the interpretation being put to this statement by the petitioner, that it amounts to breach of Code of Conduct, also does not stand to test and it also does not mean that voters from particular section of the community are being given some inducement to exercise their electoral right in a particular manner.
26. Section 171-B(1)(i) of Indian Penal Code provides that if gratification is given to any person inducing him or any other person to exercise any electoral right, then it will amount to bribery. The term "Electoral right" defined under Clause "b" of section 171-A of Indian Penal Code clearly indicates that the electoral right is of definite nature and it is to be exercised by individual. So, the gratification has to be given to an individual. Here, the offer is made to the RPI and not to any individual. Furthermore, there is nothing in the offer which indicates that any influence is being brought on any individual with respect to exercising his electoral right, that means, to stand, or not to stand as, or to withdraw from being a candidate or to vote or to refrain from voting at the election. Seeking support of a political party, during the course of election and making an offer to political party of some share in political power for giving such support cannot be called as giving gratification as contemplated under section 171-B of Indian Penal Code.
27. The alliances within the political parties is not new thing. It is known to everybody that these alliances are made on the basis of agreement between the political parties as to how they would share the political power, if they succeed of getting majority after the election. Some agreements in this respect are made behind closed doors and some agreements are made openly. But such agreements cannot be called amounting to bribery being given by one political party to another political party. Unless there is such give and take policy amongst the political parties, the political alliances are not possible. When the situation has arisen that one party on its own cannot get majority in the House, then coalition Government is the only alternative, and to form a coalition Government, alliances in the political parties is the only solution. In the light of these circumstances, if the statement made by the respondent No. 6 is read, then it will be clear that the statement does not amount to bribery, as contemplated under section 171-B of Indian Penal Code.
28. The petitioner has failed to make out a case that the respondent No. 6 has committed offence, either under section 171-B read with section 171-E of Indian Penal Code, or, under section 171-G of Indian Penal Code. The petitioner has also failed to make out a case that there is any breach of rules of Code of Conduct and, therefore, no civil or criminal action can be taken against respondent No. 6 for making such statement.
29. The petitioner has contended that the respondent No. 6 being a Minister, is a public servant and, therefore, to prosecute him, sanction from the Governor is required under section 197 of the Code of Criminal Procedure, 1973. However, once we hold that the petitioner has failed to make out a case that the respondent No. 6 has committed any offence, the question of giving sanction for prosecution does not arise. But as the point is raised by the petitioner, we would also like to mention here that the provisions of section 197 of Criminal Procedure Code do not come into play in the present case. The petitioner has specifically mentioned that the respondent No. 6, in public meetings held for canvassing the candidature of BJP-Shivsena alliance in 12th Parliamentary elections, made this statement in his capacity as leader of B.J.P. Obviously, when the respondent No. 6 was making this statement, he was not acting as Minister in his official capacity. He was not discharging any of his official duties while addressing the public meeting. It was purely a statement made by the respondent No. 6 as member of a political party. The provisions of section 197 of the Code of Criminal Procedure, 1973, therefore, cannot be invoked.
30. The petitioner is posing himself as the one who is approaching the Court in public interest. It is contended by the petitioner, that as the respondents Nos. 1 to 5 have failed to take proper action to maintain law and order, he is moving the High Court under Articles 226 and 227 of the Constitution of India for giving directions to respondents Nos. 1 to 5 to take proper legal action. But it does not appear that the petition is motivated by any public interest. The petitioner has prayed for exemplary cost from respondents Nos. 1 to 5, amounting to Rs. 50,000/-. This very prayer from the petitioner makes it clear that the petition is filed with some ulterior motive. Furthermore, when the petitioner was fully aware about the judgment delivered by this Court in Writ Petition No. 1705/1995, he has tried to mislead the Court regarding the stand taken by the Advocate General of the State of Maharashtra in the said petition and the decisions given by the Court in the said petition. It is really regretted that the judicial proceedings are being filed in this manner. Valuable time of the Court is used by the petitioner to advance his personal interest posing that it is public interest litigation. Considering all these circumstances, we direct the petitioner, to pay Rs. 2,000/- (Rupees two thousand) as token costs to respondents Nos. 1 to 5 and 7, jointly.
31. With these observations, Criminal Writ Petition No. 199/1998 is dismissed in limine.
32. At this stage, Mr. P.G. Godhamgaonkar, Counsel for the petitioner, seeks a certificate under Article 134-A of the Constitution of India for filing appeal against the order passed today.
33. In our opinion, in this matter, substantial question of law has not arisen. The matter is being disposed of mainly on the question of facts alleged in the petition and admitted by the respondents. Hence, leave rejected.
34. Petition dismissed.