Gauhati High Court
Election Commission Of India vs The State Of Nagaland And Anr on 16 May, 2014
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal
Pradesh)
Crl. Pet. No. 250/2013
Election Commission of India
.... Petitioner.
-Versus-
The State of Nagaland and Another.
...... Respondents.
BEFORE HON'BLE MR. JUSTICE C.R. SARMA For the petitioner : Mr. S. Shyam, Advocate, Mr. A. M. Bora, Advocate, Mr. A. Dhar, Advocate, Mr. K.K. Das, Advocate.
For the Respondents : Mr. P. Chudhury, Advocate,
Mr. S. Bhuyan, Advocate.
For the State of Nagaland : Mr. T. Aao, Govt. Advocate.
Date of hearing : 20.02.2014.
Date of delivery of
judgment & order : 16.05.2014.
JUDGMENT & ORDER (CAV)
By filing this application, under Section 482 read with Section 401 of the Code of Criminal Procedure (for short, Cr.P.C.), the petitioner has challenged the order, dated 15.03.2013, passed by the learned Sessions Judge, Wokha, in Criminal Misc. Case No. 2 of 2013 (arising out of G.R. Case No. 19 of 2013).
2(2) The facts of the case, as may be necessary for disposal of this petition, may, in brief, be stated as follows:
On 18.02.2013, 17th Assam Rifles Wokha Personnel, while conducting routine checking at Wokha, Kohima (Nagaland) intercepted a Scorpio vehicle, escorted by three Police vehicles and found some arms and ammunitions including cash amount of Rs.1,10,00,000/- (Rupees One Crore Ten Lakhs) and some bottles of liquor in the said vehicle, in which Mr. Imkong L Imchen, Home Minister, Government of Nagaland and four other persons were travelling.
(3) Hav. Hoshiar Singh of 17th Assam Rifles, Wokha, by filing a complaint handed over the said seized articles and the money to S.P. Wokha and accordingly a criminal case, being WKA PSC/No.0019 of 2013 under Sections 171(E)/177(H)/188 IPC read with Section 25(AA) of Arms Act, R/W Section 44NLTP Act, R/W 77(3) of Representation of Peoples (for short, R.P. Act) Act, 1951 was registered and the said persons with articles aforesaid were taken to the Wokha Police Station.
(4) On being so handed over, the said recovered articles, which were seized by the Police, in the Police Station, as per seizure memo and Police launched investigation into the matter.
(5) The accused persons were remanded to judicial custody, on 20.02.2013, by the learned Magistrate and they approached the learned Sessions Judge, Wokha, seeking release on bail. The learned Sessions Judge granted interim bail till 15.03.2013, on certain condition in favour of all the accused persons.
(6) During the investigation period, the respondent No. 2, in his capacity, as the President of a political party, namely, Nagaland Peoples Front, filed an application before the Deputy Commissioner, Wokha seeking custody of the seized money aforesaid. Though the said petition was pending before the Deputy Commissioner, Wokha, the respondent No. 2, again, on 05.03.2013, approached the learned Sessions Judge, Wokha seeking release of the seized money under Section 451 Cr.P.C. and the learned Sessions Judge, by the impugned order, dated 15.03.2013, released the seized money in favour of the respondent No. 2, subject to execution of an undertaking to the effect that the seized money shall be produced before the Court, if so required.3
(7) Aggrieved by the said order of release of the seized money, the petitioner, i.e. the Election Commission of India, has come up with this criminal petition for setting aside the impugned order, dated 15.03.2013, on the ground that the learned Sessions Judge had no power to release the seized money under Section 451 Cr.P.C., during the pendency of the investigation and that, the learned Sessions Judge committed manifest error of jurisdiction by passing the impugned order. Another ground, taken by the petitioner, is that the seized money, not being produced before the Court, the learned Sessions Judge had no jurisdiction to pass order for release the seized money in favour of the respondent No. 2 and that the observation, made by the learned Sessions Judge, regarding ownership of the seized money was not lawful.
(8) The respondent No. 2 contested the petitioner's prayer, by filing an affidavit-in-opposition and supported the impugned judgment and order, passed by the learned Sessions Judge. It has also been contended that the petitioner has no locus standi to challenge the impugned order.
(9) The petitioner, by filing an affidavit-in-reply, has denied the allegation of suppression of facts and absence of locus-standi.
(10) I have heard the learned Counsel, appearing for both the parties, perused the criminal petition, the affidavit-in-opposition, the reply to the affidavit-in-opposition, the impugned order and the report, submitted by the Superintendent of Police, Wokha.
(11) Mr. S. Shyam, learned Counsel, appearing for the petitioner has submitted that the learned Sessions Judge, during the investigation of the case, had no power to release the seized money, in exercise of his jurisdiction under Section 451 Cr.P.C. and as such, the learned Sessions Judge committed gross error and illegality by passing the impugned order, without jurisdiction. The second point of argument, advanced by the learned Counsel for the petitioner, is that, in view of the provision prescribed by Section 77 of the R.P. Act, 1950, the Election Commission, being entrusted to conduct free and fair election, is competent to resist the order directing release of money, seized during the election period.
The learned Counsel for the petitioner has also submitted , that the learned Sessions Judge committed gross error and illegality by deciding the 4 ownership of the seized money, without trial, resulting much prejudice to the investigation and that, in view of the provision prescribed by Section 77(3) of the R.P. Act, 1951, release of the seized money, during the investigation, without hearing the petitioner was unlawful and illegal.
It has been further contended that the petitioner, being the Election Commission, entrusted with the responsibility for conducting free and fare election, is the appropriate authority to contest the impugned order relating to an offence, committed during the period, when the Code of Conduct for election was in force. According to the petitioner, this criminal petition has been preferred purely in public interest and to discharge constitutional obligation, by taking recourse to the due process of law.
(12) In support of his contention, the learned Counsel for the petitioner referring to the Case of Sunderbhai Ambalal Desai -Vs.- State of Gujrat, reported in (2002) 10 SCC 283 and Deputy Commissioner & District Election Officer, Belloary -Vs.- The State of Karnakata and Others (Criminal Petition Nos. 8070, 8071,8072,8073 and 8074 of 2010), decided on 08.09.2010, has submitted that the impugned order, being passed without jurisdiction, is liable to be set aside.
(13) Refuting the said argument, advanced by the learned Counsel for the petitioner, Mr. P. Choudhury, learned Counsel, appearing for the respondent No. 2, has submitted that the State, being the overall authority regarding maintenance of law and order situation, the learned Sessions Judge rightly passed the impugned order after hearing the learned Public Prosecutor, who did not raised any objection, on behalf of the Government, towards the release of the seized money. It has also been submitted that the Election Commission, neither being the informant nor complainant, is not entitled to resist the release of the money, which was seized by the State Police in exercising of its normal duty.
(14) The learned Counsel argued that there is no sufficient ground for interfering with the impugned order, in exercise of jurisdiction under Section 482 Cr.P.C, inasmuch as, the impugned order was passed by the learned Sessions Judge in exercise of lawful jurisdiction vested on him. It has also been contended that the petitioner, not being the aggrieved person, has no locus-
5standi to challenge the impugned order and that the learned Sessions Judge committed no error by passing the impugned order.
(15) It has also been submitted by Mr. Choudhury, learned Counsel for the respondent No. 2, that as the case record was pending before the learned Sessions Judge, in connection with the bail application, made by the accused persons, no gross error or illegality was committed by the learned Sessions Judge, by entertaining the application under Section 451 Cr.P.C. and by passing the impugned order after hearing the learned Public Prosecutor representing the State.
The learned Counsel for the respondent No. 2 has also submitted a written argument and relied on the following decisions:
(i) Ganesha -Vs.- Sharanappa and Another, reported in (2014) SCC 87;
(ii) Sushila Devi -Vs.- State of Rajasthan and Others, reported in (2014) SCC 269;
(iii) State of Maharastra -Vs.- Salman Salim Khan and Another, reported in (2004)1 SCC 525;
(iv) Raghubir Singh and others -Vs.- State of Bihar, reported in (1986) 4 SCC 481; and
(v) State of Punjab -Vs.- Kasturi Lal and Others, reported in (2004) 12 SCC 195.
(16) Mr. T. Aao, learned Govt. Advocate, has adopted the said argument advanced by the learned Counsel appearing for the respondent No. 2.
(17) Having heard the learned Counsel, appearing for both the parties and carefully perusing the impugned orders and the report, dated 10.02.2014, submitted by the learned District and Sessions Judge, Wokha, Nagaland and the copy of the report dated 25.03.2014, submitted by the Superintendent of Police, Wokha, Nagaland, before the Deputy Commissioner, Wokha, Nagaland, I find that the basic questions raised in this criminal petition are:6
(i) Whether the Election Commission has the 'locus-standi' to prefer the present criminal petition, challenging the impugned order passed by the learned Sessions Judge?
ii) Whether, in view of the statutory provision prescribed by Sections 451 and 457 Cr.P.C., the learned Sessions Judge has the jurisdiction to pass the impugned order directing release of the seized money?
(18) Taking up the first question aforesaid, i.e. locus of the petitioner, it is found that the seized money and other items like arms and ammunitions, liquor were recovered by the 17th Assam Rifle Personnel and a complaint letter, signed by Hav. Hoshiar Singh of the 17th Assam Rifles, was filed with the Police. Accordingly WKA PSC/No.0019 of 2013 U/S 171(E)/177(H)/188 IPC read with Section 25(AA) of Arms Act, R/W Section 44 NLTP Act, R/W 77(3) of R.P. Act, 1951 was registered, the occupants of the vehicles were arrested and taken to Police station. As indicated in the letter dated 25.03.2013, issued by the S.P., Wokha, Nagaland, the seized articles were handed over to the Wokha Police.
(19) From the above, it transpires that the informant/ complainant, in this case was Hav. Hoshier Singh, an Assam Rifles personnel, on duty and on receipt of the said complaint, State Police registered a case and launched investigation into the matter. The Election Commission of India or any of its authorized officers played no role. In fact, no offence was committed against the petitioner.
(20) In the case of Deputy Commissioner and District Election Officer, Bellary -Vs.- State of Karnataka and Others (Criminal Petition No. 8070,8071,8072,8073 and 8074 of 2010, decided on 08.09.201.), relied on by the learned Counsel for the petitioner, the Karnataka High Court ( circuit Bench at Dhanwad), held that the Deputy Commissioner and District Election Officer had locus-standi to resist an application filed by the learned APP under Section 321 Cr.P.C.. In the said case, the petitioner was the informant, who filed the complaint before the S.H.O., Cowl Bazar P.S. in Bellary city against the accused persons for the offences under Section 171E of IPC and under Section 3 of the Karnataka Open Spaces ( Prevention of Disfigurement) Act, 1981. The 7 learned APP filed an application under Section 321 Cr.P.C. seeking Court's permission for withdrawal of the cases registered on the basis of the complaint filed by the petitioner. The trial Court allowed the prayer made by the petitioner. The revisional Court, while reversing the said order, held that the petitioner had no locus-standi to oppose the application under Section 321 Cr.P.C.
(21) Aggrieved by the said order, the petitioner approached the High Court, by filing an application under Section 482 Cr.P.C. The High Court allowed the petition holding that the petitioner had locus-standi.
(22) In the said case, the petitioner, who was a public officer, holding the post of the Deputy Commissioner and District Election Officer initiated the criminal proceeding by filing the FIR, alleging therein, commission of the certain offences by the accused persons.
(23) Referring to a catena of decisions in the said case, a learned Single Judge of Karnataka High Court, held that the petitioner, being the informant/ complainant, was the competent persons to oppose the application made u/s 321 Cr.P.C. But in our present case, the Election Commission or its authorized officers played no role in initiating the proceeding. Hav. Hoshiar Singh, Assam Rifle personnel, in the course of routine checking, found the seized items including arms etc. and he lodged the FIR, on the basis of which, Police registered the same.
(24) The learned Sessions Judge, while considering the petition under Section 451 Cr.P.C., heard the learned Public Prosecutor, representing the State. Though the case has been registered and charge-sheeted for committing the offences relating to election i.e. under Sections 171E, 171(H) and u/s 77(3) of R.P. Act, 1951 (i.e. regarding election expenses) also, the Election Commission did not play any role in initiating the proceeding and the Commission does not appear to be an aggrieved party.
In the case of Ganesha -Vs.- Sharanappa and Another, reported in (2014) SCC 87, the Supreme Court discussed the terms "informant" and "complainant". In view of the principles held in the said case, the petitioner was neither an informant nor a complainant.
8The impugned order, having been passed after hearing the State (learned Public Prosecutor), the Election Commission, which is a stranger to the proceeding, does not appear to have suffer any prejudice. The facts and circumstances of the Karnataka case (supra) are different from the case at hand inasmuch as the petitioner was the informant in the Karnataka case. Therefore, the said decision does not extend any help to the petitioner. In view of the above, I have no hesitation in holding that the Election Commission i.e. the petitioner has no locus-standi.
(25) With regard to the legality and correctness of the impugned order, it has been contended, on behalf of the petitioner, that the learned Sessions Judge acted without jurisdiction and that the impugned order is not in conformity with the statutory provision. Admittedly, the learned Sessions Judge passed the order, exercising power under Section 451 Cr.P.C.
(26) From the order dated 15.03.2013 and the report of the District & Sessions Judge ( Vide No. D & SJ/WKA/JUDL/2 dated Wokha, the 10th February, 2014), it is found that the charge-sheet was filed on 11.11.2013. Therefore, the impugned order, U/S 451 Cr.P.C., was passed during the investigation. From the impugned order and the contention of the petitioner, it is found that, prior to approaching the learned Sessions Judge u/s 451 Cr.P.C., the same petitioner had filed an application, on 21.02.2013, before the Deputy Commissioner, Wokha seeking release of the seized money and the said application was pending before the Deputy Commissioner for disposal.
(27) Therefore, it is clearly found that during the pendency of a similar prayer, made by the same party before one authority, the petitioner had moved another application before another authority and the second authority i.e. the learned Sessions Judge, despite being aware of pendency of such an application, allowed the prayer made in the second application. Entertaining a second application, if made by the same party, on the same subject matter and relief, during the pendency of earlier application involving same subject matter and relief, is contrary to the sound principles of judicial discipline and propriety. The learned Sessions Judge, either, ought to have referred the second petition to the Deputy Commissioner or call for a report regarding the status of the 9 earlier application. This act on the part of the learned Sessions Judge, being arbitrary and illegal, can not be treated as an act of judicial application of mind. Hence, the impugned order, passed on the basis of a second application during the pendency of the first application on the same subject can not be maintained.
(28) In order to examine the correctness and legality of the impugned order, passed by the Sessions Judge, exercising original jurisdiction u/s 451 Cr.P.C., the statutory provisions, prescribed under Sections 451 and 453 Cr.P.C., which read as follows, are to be perused.
"Section 451: Order for custody and disposal of property pending trail in certain cases:- When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
Section 457: Procedure by police upon seizure of property. - (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."
(29) A close reading of the said two sections indicate that, for passing an order u/s 451 Cr.P.C. the seized article must be produced before any criminal 10 Court, during inquiry or trial. On the other hand, power under Section 457 Cr.P.C. can be exercised by a Magistrate, if the seizure of the property is reported by Police and such property is not produced before a criminal Court, during an inquiry or trial. Hence, the provision of Section 451 Cr.P.C. is applicable in a case where the seized article is produced before the Court, during inquiry or trial.
(30) In the case of Sunderbhai Ambalal Desai (supra), the Supreme Court has laid down the guidelines and principles regarding disposal of property under Sections 451 and 457 Cr.P.C. The Supreme Court observed that the power u/s 451 Cr.P.C. should be exercised expeditiously and judiciously.
As observed by the Supreme Court, the object of disposal of seized property is that the Court, having control either direct or indirect, should pass order regarding disposal.
Section 451 Cr.P.C. also provides that, for exercising the power u/s 451 Cr.P.C., the property must be produced before the Court, passing such order.
(31) In the present case, as the charge-sheet was not submitted and the case was also not committed to the Court of Sessions, at the time of passing the impugned order, the matter, regarding seized property, in fact, was pending before the learned Magistrate.
The petitioner i.e. respondent No. 2 had filed the application u/s 451 Cr.P.C. directly before the learned Sessions Judge. The impugned order does not reveal that the seized money, along with other seized items, were produced before the learned Sessions Judge. It can be understood that in view of pendency of investigation, there was no scope to produce the seized money before the Sessions Court. The report, dated 25.03.2013, submitted by the S.P., Wokha also indicates that the seized articles were handed over to Wokha Police. The said report does not indicate that the seized property was produced before the learned Sessions Judge. Therefore, from the above, it is found that the seized money was not produced before the Court and the learned Sessions Judge had no control over the seized money, on the date of passing the impugned order.
11(32) In the case of Sunderbhai Ambalal Desai (supra) the Supreme Court observed that the power u/s 451 Cr.P.C. is to be exercised by a Magistrate.
(33) The scope of the high with regard to interference with an order, in exercise of powers u/s 482 Cr.P.C. has been settled by the Apex Court in a catena of decisions. In the case of State of Maharastra -Vs.- Salman Salim Khan and Another, reported in (2004)1 SCC 525, the Supreme Court, while discussing of the scope of interference under Section 482 Cr.P.C., held that the trial Court at appropriate stage of the trial can decide arguments regarding framing of proper charge and sufficiency of evidence. It has also been held that the High Court can not examine the truthfulness, the sufficiency and acceptability of material produced at the time of framing charge.
(34) In the case of Raghubir Singh and others -Vs.- State of Bihar, reported in (1986) 4 SCC 481, the Supreme Court held that it can not convert itself into the Court of Magistrate or a Special Judge to consider the evidence and justification regarding, framing of charge.
(35) In the case of Sushila Devi -Vs.- State of Rajasthan and Others, reported in (2014) SCC 269, the Supreme Court held that the monitoring of a case by Supreme Court will cease on submission of charge-sheet before the competent Court.
(36) From the above discussion, it can be concluded that, due to non production of the seized money, before the learned Sessions Judge, the learned Sessions Judge had no jurisdiction to release the seized money, during the investigation period, that too during the pendency of another (first) application. The impugned order is found to be not in conformity with the statutory provision, prescribed u/s 451 Cr.P.C.
(37) Therefore, in the light of the above discussions, the impugned order, passed by the learned Sessions Judge, can not stand the test of law. Hence, the order, not being in conformity with the statutory provision, can not be maintained. From the above, it is clearly found that the learned Sessions Judge acted without jurisdiction in passing the impugned order and as such, the said unlawful order can not be allowed to continue.
12(38) In the case of State of Punjab -Vs.- Kasturi Lal and Others, reported in (2004) 12 SCC 195, the Supreme Court, referring to the case of Bhajanlal [ 1992 (1) SCC 335] laid down the scope and principles of interference, by Court in exercise of power under Section 482 Cr.P.C. In view of the decision held in the said case, an order, if manifestly appears to be against the statutory provision or hit by any legal bar, then the jurisdiction u/s 482 Cr.P.C. can be invoked to rectify the illegality. In the case of Bhajanlal [ 1992 (1) SCC 335] also it has been held that the order passed against expressed legal bar, is liable to be interfered with u/s 482 Cr.P.C.
(39) In view of the above principles provided by the Supreme Court, there is no difficulty in understanding that the High Court, in exercise of jurisdiction u/s 482 Cr.P.C. can exercise its power of interference to prevent unauthorized exercise of power violating the statutory provision resulting miscarriage of justice and abuse of process.
Law is well settled that if any procedure is provided by statute or Rule to do certain things, the same should be done in the prescribed manner. Any deviation from the statutory provision is arbitrary and such act is liable to be set aside.
(40) As observed above, though this petition, at the instance of the petitioner, is found to be not maintainable, the illegality in passing the impugned order, having been brought to the notice of this Court, I don't find it just and proper to ignore the same and allow continuance of the said unlawful order, passed without jurisdiction.
Therefore, though the petitioner has no locus to challenge the impugned order, in view of the above illegality, this Court, in exercise of its inherent jurisdiction under Section 482 Cr.P.C. finds it just and proper to rectify the said illegality by interfering with the impugned order.
(41) From the report, submitted by the learned Sessions Judge, Wokha, it is found that, though the case was committed to the Court of Sessions, the same has been remanded to the Court of the learned Judicial Magistrate 1st Class for trial. Therefore, the case is pending for trial before the learned Judicial Magistrate 1st Class.
13(42) In view of what has been discussed above, the impugned order, dated 15.03.2013, aforesaid is set aside. The respondent No. 2 is directed to produce the seized money before the trial Court within one month from this date and on such production, the trial Court shall pass necessary order regarding custody of the seized money, as per law.
(43) With the above this petition is disposed of.
JUDGE Kishor