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: 460/2013
PS : Kirti Nagar
U/s 188 of the Indian Penal Code and
126 of the Representation of People Act
Date of Institution of Case : 05.01.2015
Judgment Reserved on : 22.09.2018
Date of Judgment : 15.10.2018
(a) The serial no. of the case : 14281/2018
(b) The date of commission of offence : 02.12.2013
(c) The name of complainant : Sh. Subhash Chandra
(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
and 126 RPA
(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted.
(h) The date of order : 15.10.2018
JUDGMENT
FIR No. 460/2013 1/10
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 and under section 126 of the Representation of People Act, 1951(herein after referred as RP Act).
2. Section 188 of the Indian Penal Code 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 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.
3. Section 126 (1) reads as under-
1) No person shall--
(a) convene, hold, attend, join or address any public FIR No. 460/2013 2/10 State vs Sushil Kumar Gupta meeting or procession in connection with an election; or
(b) display to the public any election matter by means of cinematograph, television or other similar apparatus; or
(c) propagate any election matter to the public by holding, or by arranging the holding of, any musical concert or any theatrical performance or any other entertainment or amusement with a view to attracting the members of the public thereto, in any polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in that polling area.
4. In this case, FIR was registered against the accused on 02.12.2013 on a complainant of Sh. Subhash Chandra, Executive Magistrate. It is the case of the prosecution that accused Sushil Gupta had organized a political meeting on 02.12.2013 in the evening in Richi - Richi Banquet Hall, Kirti Nagar, New Delhi. The complainant received a complaint that the congress party workers were organizing a party in Richi - Richi Banquet Hall. He being member of a flying squad reached at the spot at around 8:20 pm. He found that there was a gathering of 300-350 persons with men, women and kids. When he asked that what is going on there, it was told to him that Sh Sushil Gupta congress candidate had organized this meeting. However, the flying squad did not find any illegal material or liquor at the venue. The accused Sushil Kumar Gupta was also not present FIR No. 460/2013 3/10 State vs Sushil Kumar Gupta there and no other leader of the congress was also not present on the stage.
5. During investigation, the manager of the banquet hall Avinash Shukla was examined, who informed that the banquet hall was booked by one Babbal from 7 to 11 pm for a get to get party. On 02.12.2013, he received a call at 4 pm from Babbal to cancel the booking as he came to know that as per the orders of Election Commission, there cannot be any meeting or assembly on 02.12.2013 after 4 pm. The investigating officer had also seen the video provided by the complainant and according to the chargesheet, neither the accused nor any congress party worker was present in the banquet hall nor any material of congress party relating to the election was found in the hall.
6. As the trial proceeded, the prosecution examined six witnesses namely, PW-1 complainant Sh. Subhash Chand, the Executive Magistrate on whose complaint the FIR was registered. PW-2 Rajesh Babbal, PW-3 Bansh Raj, PW-4 HC Dhanesh M, PW-5 Avinash Shukla, PW-6 SI Kuldeep Singh to substantiate the accusation.
7. After the prosecution evidence, the accused Sh. Sushil Kumar Gupta was examined under section 313 of the Code of Criminal Procedure. He stated that he is innocent and had been falsely implicated. He had neither booked the banquet hall nor he was FIR No. 460/2013 4/10 State vs Sushil Kumar Gupta present there.
8. I have heard Ld. Public Prosecutor and Ld. counsel for accused.
9. It is to be understood that the accused Sh. Sushil Kumar Gupta has been prosecuted for violating the Model Code of Conduct of Election Commission of India placed on record as Mark-X.
10. The 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 FIR No. 460/2013 5/10 State vs Sushil Kumar Gupta 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 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 FIR No. 460/2013 6/10 State vs Sushil Kumar Gupta 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 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.
11. Secondly, if it is an order as contemplated under section 188 IPC then, it is not clear from the document (Model Code of Conduct) FIR No. 460/2013 7/10 State vs Sushil Kumar Gupta 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. 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 Cr.PC is not fulfilled in this case making the prosecution an empty formality.
12. 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 alleged get together 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.
13. The second allegation is for commission of offence under section 126 of the RP Act. Section 126 of the RP Act basically prohibits, convening and displaying election material during the period of 48 hours ending with the hour fixed for the conclusion of the poll. The allegation in the present case against the accused is that he FIR No. 460/2013 8/10 State vs Sushil Kumar Gupta convened a public meeting within 48 hours of the poll, however, the prosecution case is otherwise. As per the case of prosecution, neither the accused was present in the Richi Richi Banquet hall where the gathering of around 300 persons is alleged nor the banquet hall was booked by or in the name of accused. In fact, the banquet was booked by a person named Babbal. In fact no incriminating material like liquor etc. or election related material like banners, poster play- cards etc of any political party were found in the banquet hall. As per charge-sheet itself no congress persons was present in the hall including the accused Sushil Kumar Gupta. Therefore, the gathering in the Richi Richi Banquet hall has not been proved to have gathered by the accused. It is not proved that accused had convened, held, attend, joined or addressed the public meeting as alleged nor displayed to the public any election matter by means of cinematograph, television or other similar apparatus; nor propagated any election matter to the public by holding, or by arranging the holding of, any musical concert or any theatrical performance or any other entertainment or amusement with a view to attracting the members of the public thereto, in any polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in that polling area. Although, Rajesh Babbel, who had been examined as PW-2 has deposed that he had booked the banquet hall for Sh.Sushil Kumar Gupta but he instructed all the persons after knowing the fact that no such meeting could be held as the election campaign period was over. This is the only evidence FIR No. 460/2013 9/10 State vs Sushil Kumar Gupta against the accused Sushil Kumar Gupta, which also exculpates him. Further, this sole evidence is not sufficient to convict him in the absence of any corroborative evidence because Rajesh Babbal by booking the hall had himself become an accomplice and an accessory in the crime and therefore his sole testimony to create a link of the accused with that meeting is not sufficient.
14. Accordingly, on the basis of above discussion, the accused is acquitted. Digitally signed by SAMAR SAMAR VISHAL Announced in the open court VISHAL Date:
2018.10.15 16:50:14 +0530 this 15th day of October 2018 SAMAR VISHAL ACMM-II (New Delhi), PHC FIR No. 460/2013 10/10 State vs Sushil Kumar Gupta