Indian Kanoon - Search engine for Indian Law

According to the Deputy Chief Electoral Officer, the Presiding Office of Polling Station No. 125 at the end of the day of the poll had kepi all the-relevant documents, including the counterfoils of used ballot papers in a sealed statutory cover as required under Rule 46 of Conduct of Elections Rules. 1961 and they were kept in the safe custody in Sub-Treasury. Allagadda. The documents which were kept in safe custody shall not be opened and their contents shall not be inspected by. or produced before any person or authority except under the order of competent Court as per Rule 93 of the said Rules. The Returning Officer, in his Rc. I. 2459/96 dated 8-2-1997. had addressed the Superintendent of Police. Kurnool informing him about the publication of ballot paper No. 101012 in the local newspaper "Vartha" Cuddapah edition dated 8-2-1997 and had staled that he had verified the ballot paper account submitted by the Presiding Officer of Polling Station No. 125 and with the ballot papers actually found in the scaled ballot box on the day of counting on 8-2-1997. The Returning Officer, according to the Deputy Chief Electoral Officer, has also stated that as per the ballot paper account, out of 720 ballot papers supplied to the Presiding Officer concerned, 585 number of ballot papers were used during the poll, but during the counting, only 583 number of ballot papers were found in the ballot box and the ballot paper published in newspaper is a used one. He has alleged, "As the ballot paper is a classified document and mere possession by an unauthorised person is a substantive offence, he has requested the Superintendent of Police, Kurnool to investigate the entire incident and take action against the Reporter and others responsible for this offence. Based on this complaint by the Returning Officer, the Superintendent of Police endorsed the complain! to the Circle Inspector of Police, Nandyal II Town Police Station to register a case and take necessary action. On the endorsement, however, the Inspector of Police, II Town Police Station, Nandyal, the complaint was regisiercd by the S. H. O. Nandyal on 8-2-1997 at 12.50hours, vide Crime No. 19 of 1997, under Sections 379, 505,411 of the Indian Penal Code and Sections 135 and 136 of the Representation of the People Act, 1951."

Provided that when it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency. (3) Any ballot paper found upon the person arrested on search shall made over for safe custody to a police officer by the presiding officer, or on the search is made by a police officer, shall be kept by such officer in custody. (4) An offence punishable under sub-section (1) shall be cognizable."

Removal of a ballot paper as such is not an offence. If it is fraudulently taken or attempted to lake ballot paper out of a polling station, it is an offence. The most expansive definition of the expression 'fraudulently' is available in Section 25 of the Indian Penal Code, which says, "a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise." No act or conduct mentioned in the First Information Report even remotely suggests that Krishna Mohan intended 10 defraud any person. All that he did was that he picked up a ballot paper and published the information that he has so found a ballot paper for every person to know, including the Returning Officer who admittedly came to know about the ballot paper being found by Krishna Mohan and being in his possession. One can immediately dispose of the offence under Section 379 of the Indian Penal Code by referring to the requirement for constituting the said offence of theft which is intended to lake dishonestly and moveable property out of any person without that person's con sent. 'Dishonestly' is an expression defined under Section 24 of the Indian Penal Code to signify, doing anything with the intention of causing wrongful gain to one person or wrongful loss to another person. 'Wrongful gain' is defined under Section 23 of the Indian Penal Code as a gain by unlawful means of properly to which the person gaining is not legally entitled and 'wrongful loss' is defined as the loss by unlawful means of properly to which the person losing it is legally entitled. Unless there is something to show that there is any unlawful means adopted by Krishna Mohan for gaining the ballot paper, to which he is not legally entitled and which ballot paper is a property gained by him illegally or there is loss of property to some one by unlawful means adopted by Krishna Mohan lo charge him for Section 379 IPC, will only be miscarriage of justice. No one can find anything unlawful in picking up even a valuable properly which is lying on the road unless it is shown that it is stealthy removal for persona! gain. If the law enforcers would start seeing in picking up a valuable object from the road an offence, instead of locating the owner of the property to hand over the same to him when produced by such person who had picked up the properly, they would register cases against innocent persons for holding them and the person who has lost the property, no citizen would come forward to help police in detecting crimes of theft and possession of stolen properties. Section 411 of the Indian Penal Code is introduced, it seems, only formally mat any attempt to consider whether, on the facts us above. Krishna Mohan could be charged for dishonestly receiving or retaining any stolen property. As we have already noticed, it is no one's case mat Krishna Mohan dishonestly received or retained the ballot paper. No one can see any dishonesty in his publishing the information of his being in possession of a ballot paper which miscreants had thrown on the road, A larger question, however, has arisen in the instant proceeding that a journalist for reporting the events which he has claimed to witness is charged under Section 505 of the Indian Penal Code. Section 505 of the Indian Penal Code says.-

"It does not amount to an offence, within the meaning of this section, when the person making, publishing or circulating any statement, rumour or report, has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it in good faith and without any such intent as aforesaid."

It indeed raises a question--whether a fearless and frank reporting of evens in a newspaper would, for the reason of annoyance by the officials or the officers, attract Section 505 of the Indian Penal Code or rim. Although the Returning Officer and the District Superintendent of Police can be easily assessed as knowledgeable and quite well informed about the laws, which, in the fact situation like above, would be algaecide, particularly when it would concern a newspaper man. the charge for the alleged publication and circulation of the report about me rigging at a polling station in course oft ho election based solely on the report by Krishna Mohan has betrayed intentions. It is difficult to imagine how, for publishing in the newspaper information about the incidents that had taken place in course of elections at polling booth No. 125 of the Constituency. Krishna Mohan. the journalist, committed an offence punishable under Section 505 of the Indian Penal Code. Nothing stated in the report can he said to be intended to cause or likely to cause any officer, soldier, sailor or airman in the Army, Navy or Air Force of India to mutiny or other wise disregard or fail in his duty as such, or to cause or likely to cause or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the Slate or against the public tranquility, or to incite, or likely to incite any class or community of per son to commit any offence against any oilier class or community. !t is also not possible to visualise in the publication of the news item any rumour or alarm with item to create or promote or likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities. Obviously, there is nothing suggestive of any offence committed by Krishna Mohan in place of worship etc. We shall advert when we shall deal with the right under Article 19 (1)(a)of the Constitution of India how publication of a news should he viewed by the police and other persons in authority. We observe, however, that the respondents have extended their imaginations to go beyond comprehensions which laws permit in charging Krishna Mohan for the offence under Section 505 of the Indian Penal Code. The only offence, in respect of which some effort has been made before us by the learned Additional Advocate General and which for the reason of possession of hallo! paper Krishna Mohan can he suspected to have committed is under Section 136 of the Representation of People Act. 1951. Section 136 of the Act. 1951 in the relevant parts reads as follows :

"Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the Slate, friendly relations with foreigh States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence."

Respondents appeared to know that as a press person and as a citizen of India, Krishna Mohan as well as the petitioner enjoy the freedom of speech and expression and unless it is shown to have violated any existing law, it would be difficult to restrict publication of the news with respect to the elections, particularly when a vigilant press is expected to watch whether there is any unfair practice resorted to by any of the political parties or contesting candidates. Reference to Section 505 of the Indian Penal Code in the First Information Report as one of the charges against Krishna Mohan, it seems, is made only to bring the publication of the news item about rigging at one of the polling stations in the elections within the purview of an existing law which prohibits publication in respect of the matters enumerated therein. Since, however, Krishna Mohan's report and the news item relate to elections and electoral offences and to prove a point that elections were illegally interfered with when Krishna Mohan published a photo copy of the ballot paper, he was charged of the offences under Sections 135 and 136 (1) of the Representation of the People Act, 1951. Other offences were added only for Krishna Mohan to suffer for reporting about the unfair acts at the polls. Is it not a case that one who protested against the illegal acts and electoral offences and brought to the notice of al I concerned commission of such offences was himself made to suffer indignity of having been arrested, detained and otherwise was Krishna .Mohan charged for the afore-mentioned offences with a view to deter him from discharging his duties freely and fairly. These as many such questions do arise and in course of the hearing of the instant application, we have been addressed at the Bar on several aspects of the matter. For the reasons that we have noticed above, however, when we hold that the allegations which have been leveled against Krishna Mohan do not constitute any offence and in any case registration of a case in Crime No. 19 of 1997 of Allagadda Urban Police -Station. Allagadda against Krishna Mohan is mala fide in law, we deem it no longer necessary to enter into the wider sphere of the subject matter before us. Yet. because Krishna Mohan's arrest has been taken as a threat to the freedom of press, we cannot brush aside the above apprehensions and the fear which has been expressed at the Bar on behalf of the petitioner that in case respondents arc not severely dealt with and are allowed to escape without being warned and cautioned, they may repeat and do again and again, use their power to gag the press and deny to the citizens the freedom of speech and expression. Whenever occasions have come, the Courts have recognised the importance of independence which police and the executive must enjoy from any interference, including interference by Courts and emphasized over and over again that the Court should not interfere with the investigation of case. When, however. Courts have chosen to emphasis that police must have complete freedom in the matter of investigation of cases, it has never bargained that it shall allow them to go burser and do things which instead of upholding the rule of law will undermine or destroy it. Independence of police which is a wing of the executive of the State cannot be over-stated and extended to leave to them the freedom to decide when to register case, when to investigate, whom to arrest and whom not to arrest. Their independence must always be viewed within the limitations imposed upon their functioning by the laws and no law, to our knowledge, gives such freedom to the police that it would decide to register a case against a journalist, who, in discharge of his duties, could come to know certain incidents. which he thought in public interest, should be published and accordingly reported and finally got published in the newspaper. We cannot in spite of constraints resist recording our disapproval to the arrest of Krishna Mohan by the respondents for the alleged offences which never existed and for reasons which we have already noticed smack of malice. We. however, desist from going any further than quashing the proceedings in Crime No. 19 of 1997 for we think, on the tacts of this case, one could legitimately reel that when ballot papery were still to be counted, the atmosphere was surcharged and administration was at its wits end. respondents 3 and-4 and others who were connected with the affairs of the election could be found quite agitated when the news was published that election was rigged, still no person in authority can afford to he lax or to act hastely.