Delhi High Court
Election Commission Of India vs Mukhtar Ansari & Anr on 27 February, 2017
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 22nd February, 2017
Decided on: 27th February, 2017
+ CRL.M.C. 689/2017 & Crl.M.A. 2923/2017 (stay)
ELECTION COMMISSION OF INDIA ..... Petitioner
Represented by: Mr. Dayan Krishnan, Sr. Adv.
with Mr. Amit Sharma, Mr.
Dipesh Sinha, Ms. Aakashi
Lodha, Advs.
versus
MUKHTAR ANSARI & ANR ..... Respondents
Represented by: Mr. Kapil Sibal, Mr. Salman
Khursheed, Mr. S.S. Gandhi
and Mr. Sudhir Nandrajog, Sr.
Advs. with Mr. R.K. Thakur,
Mr. Jubair Ahmad Khan, Mr.
Deepak Sharma, Mr. Qadri, Mr.
Azra Rehman, Mr. Rishabh
Jain, Mr. Sandeep, Mr. B.
Mishra, Ms. Ritu Negi, Ms.
Surya Rajappan, Mr. U.P.
Singh, Advs. for R-1.
Mr. Sanjeev Bhandari, Spl. PP
for CBI/ R-2.
Mr. Ratnakar Das, Sr. Adv.
with Mr. Anil Mittal, Ms.
Komal Aggarwal, Advs. for
State of U.P./ intervener.
Mr. Arvind K. Nigam, Sr. Adv.
with Mr. Mikhil Sharda, Mr.
Akshay Bhandari, Mr. Parth
Awasthi, Advs. for Pvt.
Complainant/ intervener.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
Crl.M.C. 689/2017 Page 1 of 23
1. Aggrieved by the order dated 16th February, 2017 disposing off the application of respondent No.1 granting him permission to go out with armed guards in the daytime to canvass for his elections, the petitioner prefers the present petition. The operative portion of the impugned order is as under:
"9. The present application has been filed on behalf of the applicant/accused Mokhtar Ansari for granting custody parole to the applicant/accused for campaigning and canvassing for election in Mau Constituency to be held on 04.03.2017. Assembly election for Mau Constituency have been declared to be held on 04.03.2017 and the result thereof shall be declared on 11.03.2017. It is not disputed that the applicant/accused is a sitting MLA from Mau Constituency, U.P. for the last four terms. It is also not disputed by the CBI that applicant Mokhtar Ansari is contesting the election from Mau Assembly Constituency.
10. Perusal of the file shows that the applicant/accused has earlier also been granted custody parole for contesting the elections by Sh. A.K. Mendiratta Ld. ASJ, Tis Hazari vide his order dated 03.05.2014. I have perused the said order and perusal of the same reveals that earlier also the applicant/accused was granted custody parole for contesting the election by Ms. Savita Rao Ld. ASJ vide her Order dated 30.01.2012. The accused/applicant Mokhtar Ansari did not misuse this liberty granted to him.
11. Therefore, keeping in view the facts and circumstances of the case and the fact that the applicant/accused was earlier granted custody parole on two occasions and he did not misuse the liberty of custody parole granted to him, the applicant/accused Mokhtar Ansari is granted custody parole in R.C. No.8 (S)/2006/CBI/SCB-II/ND (Crime No.589/2005) P.S. (Bhanwarkol) till 04.03.2017 from 7.00 a.m. to 8.00 p.m. everyday, subject to the following terms and conditions: -Crl.M.C. 689/2017 Page 2 of 23
1. The applicant/accused Mokhtar Ansari shall not misuse this liberty in any manner nor he shall influence or threat the witnesses or tamper with the evidence.
2. The applicant/accused shall not be taken outside the limits of Mau Constituency for the purpose of campaigning. It is further directed that during the custody parole, the applicant/accused Mokhtar Ansari shall not indulge in any such activity which can be prejudicial to the fair trial of this case.
3. The expenses of custody parole shall be borne by the applicant/accused Mokhtar Ansari."
12. The applicant/accused Mokhtar Ansari is stated to be lodged presently at Lucknow Jail, U.P. The Superintendent Lucknow Jail, U.P., shall make the necessary arrangements for taking the accused/applicant Mokhtar Ansari to Mau Constituency. The Superintendent Jail Lucknow shall also make proper arrangement for the security of the applicant/accused Mokhtar Ansari.
13. Copy of this order be sent to Superintendent Lucknow Jail, U.P. for information and necessary action. As requested, copy of this order be also given dasti to the Ld. Counsel for the applicant/accused Mokhtar Ansari."
2. Learned Senior Counsel for the Election Commission submits that the Election Commission is bestowed with extensive powers under Article 324 of the Constitution of India and where an order of the Court would adversely affect and obstruct the Election Commission in conducting free and fair elections, the Election Commission would be within its jurisdiction to challenge the same. Reliance is placed on the decisions reported as 1978 (1) SCC 405 Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi & Ors., 1984 Suppl SCC 104 Election Commission of India vs. State Crl.M.C. 689/2017 Page 3 of 23 of Haryana, 1984 (2) SCC 656 A.C. Jose vs. Sivan Pillai, and 2002 (5) SCC 294 Union of India vs. Association for Democratic Reforms & Anr. Referring to question No.49 of Frequently Asked Questions to Model Code of Conduct for Guidance of Political Parties and Candidates it is contended that before grant of custody parole, the Election Commission ought to have been consulted.
3. Learned Senior Counsel for the petitioner further submits that firstly the respondent No.1 is not a convict being entitled to avail custody parole and secondly, the Guidelines for Parole/Furlough, 2010 itself do not contemplate that respondent No.1 can be granted custody parole for canvassing his candidature as a MLA for Mau constituency of the State of Uttar Pradesh. The Trial Court ought to have taken into account the criminal antecedents of the respondent No.1 and its likely impact on a free and fair election. The very fact that the custody parole has been sought with eight security guards and granted, the same would be sufficient to overawe the electorate. Not only the impugned order has been passed without issuing notice to the Election Commission, it also violates the directions issued by the Election Commission during the elections, especially Instruction No.13 in this regard. The present petition has been filed by the Election Commission on the basis of a credible material from which a safe conclusion can be arrived at that the release of the respondent No.1 from the custody would hamper the process of free and fair elections which is going on in the State of Uttar Pradesh. It is further contended that democracy is the basic feature of the Constitution of India which rests on a system of free and fair elections and no candidate has a fundamental right to be elected or to campaign as per his choice. Reliance is placed on the decisions reported as Crl.M.C. 689/2017 Page 4 of 23 1975 Supp SCC 1 Indira Nehru Gandhi vs. Raj Narain, 1982 (1) SCC 691 Jyoti Basu vs. Debi Ghosal and 2006 (7) SCC 1 Kuldip Nayar vs. Union of India.
4. Learned Senior counsel for the Election Commission has handed over in sealed cover material to show that while canvassing, law and order problems were created and this happened when the respondent No.1 was earlier released in the year 2012 and various FIRs were registered. Even in this year in January 2017, FIR has been registered wherein supporters of respondent No.1 were found creating law and order situation. Contention of learned Senior counsel for the Election Commission is that once the elections have been notified the Court ought to have heard the Election Commission and if there was any material with the Election Commission which would show that the release of respondent No.1 affects a free and fair election which is the basic structure of the Constitution, then the material ought to have been looked into by the Trial Court and thereafter orders passed. Learned Trial Court entered into a mechanical exercise and passed the order merely because earlier such orders were passed. Learned counsel for Election Commission further states that the contention of counsel for the respondent No.1 that only in extraordinary circumstance and situation the Court should not pass such an order deserves to be rejected, for if there is some credible material with the Election Commission which is sufficient to arrive at a subjective satisfaction like any other administrative decision justifying the taking of an action, the Court should not pass an order which interferes in a free and fair election. Thus the test is not rarest of the rare case but availability of material with the Election Commission for arriving at a subjective satisfaction. Countering the contention of learned counsel for Crl.M.C. 689/2017 Page 5 of 23 respondent No.1 that if there is any violation of the code of conduct, the Election Commission can countermand the election, learned counsel for the Election Commission submits that functions of Election Commission are not only remedial but preventive as well.
5. Learned Senior Counsel for the respondent No.1 contends that the respondent No.1 is presently an under trial prisoner with a presumption of innocence in his favour. Since he has not been convicted, the parole guidelines as sought to be pressed into service by learned counsel for the petitioner do not apply to the respondent No.1. It is well-settled that after arrest once accused is produced before the Court, he continues to be in the custody of the Court whether in jail or at any other place. Even if released on bail the constructive custody of the Court continues. Thus every Court has a plenary power to change the nature of custody of the accused. Since even as per the order impugned, the custody of the Court continues, the petitioner cannot intervene in the matter because at this stage the issue is between the accused, prosecution and the Court. Though conceding that in an extraordinary situation which would be akin to destruction of the rule of law and an extreme violation of the fair and free election, the Election Commission may approach the Court for intervention, it is contended that it has to be borne in mind that democracy is a basic structure of the Constitution and in a democracy, every citizen has a right to contest and canvas for his election subject to the conditions imposed. Even accepting the contention of the Election Commission of India at best it would be a law and order problem which is under the control of the State Government and the Election Commission though can supervise and guide the State but it cannot supplant the functions of the State and decide on behalf of the State issues Crl.M.C. 689/2017 Page 6 of 23 relating to law and order situation. If there is any violation of a free and fair election, the Election Commission can at any stage countermand the election. Mere unsubstantiated apprehension of a free and fair election is not sufficient to deprive the petitioner of the right as a candidate to participate in the election and the public to elect the candidate of their choice. The respondent No.1 is a four times sitting MLA with no order of conviction passed against him by any Court. Even during the earlier election when he was granted permission to canvas, the election was not countermanded or set aside on the ground that it was not a free and fair election. The decisions relied upon by learned counsel for the petitioner have no application to the facts of the case. In Mohinder Singh Gill (supra) the Court was dealing with a case where the counting was aborted by violence. In A.C. Jose (supra) the Supreme Court was dealing with the use of voting machines and whether it would affect a free and fair election. The fact that the Election Commission has itself decided to hold the election in the entire U.P. including the constituency of Mau shows that the election process in Mau is going on in a free and fair manner and a mere apprehension of a danger is not sufficient to deny the respondent No.1 his right to canvas. If the Election Commission has any grievance with armed officers in uniform in whose custody respondent No.1 will be taken out, the same is not a requirement of the respondent No.1 and the impugned order can be suitably modified by this Court. The respondent No.1 is ready to furnish any undertaking before the Court so that in case he violates the same, he would also be liable for proceedings under the Contempt of Court Act. Further once the respondent No.1 is permitted to go out as directed vide the impugned order, if any Crl.M.C. 689/2017 Page 7 of 23 violation of the order is brought to the notice of the Court, it would be within its power to immediately revoke the order impugned.
6. Learned counsel on behalf of complainant who is an eye-witness and brother of one of the deceased for which respondent No.1 is facing trial in RC No. RC 8(S)/2006/SCB-II/CBI/DLI under Section 147/148/149/ 302/307/404 & 120B IPC and Section 7 of Arms Act submits that before passing the impugned order no notice was given to the complainant. The impugned order passed by the learned Additional Sessions Judge is not within the four corners of Section 439 Cr.P.C. which is the only power which can be exercised by the learned Additional Sessions Judge as he has no inherent power. Parameters of grant of bail as noted by the Supreme Court repeatedly have not been considered by the learned Additional Sessions Judge while passing the impugned order. Further there is no concept of granting permission to go out of the prison in custody for a long period as has been done by the Court in the impugned order permitting respondent No.1 to be taken in custody everyday till 4 th March, 2017 from 7.00 AM to 8.00 PM. The power of the Court ex-debito justitiae is only to prevent an abuse of the process of the Court in circumstances such as death in the family or for treatment etc.
7. Learned counsel for the State of U.P. contends that since the directions vide the impugned order are to the State of Uttar Pradesh to make necessary arrangements for taking respondent No.1 from Lucknow Jail, U.P. to Mau constituency everyday, the State which is already drained of the resources and has deployed extra resources during the elections cannot be imposed with this extra burden without being heard. Referring to the decision in (2000) 3 SCC 409 Sunil Fulchand Shah Vs. Union of India & Ors. it is stated Crl.M.C. 689/2017 Page 8 of 23 that there is a distinction between a parole and bail and the Trial Court was not competent to grant parole to the respondent No.1. Hence the order is liable to be set aside.
8. The issues that arise for consideration before this Court in the present petition inter alia are whether the Election Commission has locus standi to present the present petition, if yes, whether the impugned order is liable to be set aside in view of the material placed or being violative of the Instructions of the Election Commission and whether the impugned order passed by the learned Additional Sessions Judge is a legal order which it was competent to pass.
9. In the Association for democratic Reforms & Anr. (supra) noting the parameters of the jurisdiction of Election Commission, Supreme Court held:
"46. To sum up the legal and constitutional position which emerges from the aforesaid discussion, it can be stated that:
1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word "elections" is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.
2. The limitation on plenary character of power is when Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. The Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the Crl.M.C. 689/2017 Page 9 of 23 enacted laws or the rules. By issuing necessary directions, the Commission can fill the vacuum till there is legislation on the subject. In Kanhiya Lal Omar case [(1985) 4 SCC 628] the Court construed the expression "superintendence, direction and control" in Article 324(1) and held that a direction may mean an order issued to a particular individual or a precept which many may have to follow and it may be a specific or a general order and such phrase should be construed liberally empowering the Election Commission to issue such orders.
[Emphasis supplied]
10. In Mohinder Singh Gill & Anr. (supra) the Supreme Court condensed the statement of law under Article 324 of the Constitution of India as under:
"92. Diffusion, even more elaborate discussion, tends to blur the precision of the conclusion in a judgment and so it is meet that we synopsize the formulations. Of course, the condensed statement we make is for convenience, not for exclusion of the relevance or attenuation of the binding impact of the detailed argumentation. For this limited purpose, we set down our holdings:
(1) (a) Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result.
(b) Election, in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate.
(2) (a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility Crl.M.C. 689/2017 Page 10 of 23 may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances.
(b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice insofar as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order viz.
elections. Fairness does import an obligation to see that no wrongdoer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but in flexible practicability. Whether it has been complied with is left open for the Tribunal's adjudication.
(3) The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post-election stage and procedure as predicated in Article 329(b) and the 1951 Act. The Election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the Election Commission or other appropriate agency to hold a poll, to bring up the ballots or do other thing necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law."
Crl.M.C. 689/2017 Page 11 of 23[Emphasis supplied]
11. Article 324 of the Constitution of India is thus the repository of law enabling the Election Commission to perform all duties and functions for a free and fair election which is the basic structure of the Constitution. In Election Commission of India vs. State of Haryana (supra) Supreme Court held that though the Government undoubtedly is in the best position to assess the law and order situation in the area but the ultimate decision whether it was possible and expedient to hold the elections at any given point of time must rest with the Election Commission.
12. It is trite law that any person can set the criminal law into motion and locus standi of a complainant is alien to the criminal law. It is also well- settled that after registration of FIR when investigation is carried out and during the course of prosecution no third party intervention is permitted and it is between the accused and the prosecuting agency assisted by the victim before the Court. However, sparingly in very exceptional circumstances, the Court may recognize the right of intervention by Constitutional and Statutory authorities if the order of the Court interferes in the performance of the constitutional or statutory obligation of the authority concerned.
13. Faced with this legal position learned senior counsel appearing for respondent No.1 does not dispute the locus standi of the Election Commission to file the present petition; however states that the intervention of the Election Commission on issues in an ongoing criminal trial can be permitted very sparingly, particularly because if the Election Commission finds that the release of the respondent No.1 is affecting the free and fair elections it is within its jurisdiction to countermand the elections Crl.M.C. 689/2017 Page 12 of 23 immediately. It is contended that the Election Commission has overriding powers and can direct any candidate or any person on his behalf to remove himself away or not enter any particular area or not hold meeting or procession. As the Election Commission has plenary powers it can pass any order in the exigencies of situation to ensure a free and fair election. Thus if on the respondent No.1 being taken in custody, any violation of Model Code of Conduct is found, necessary orders can be passed by the Election Officer.
14. A perusal of the documents shown to the Court by learned counsel for the Election Commission of India reveals that in the year 2012 when respondent No.1 was granted similar permission, number of FIRs were registered and even this year in January, 2017 an FIR has been registered against the supporters of respondent No.1. A fact which is conceded by learned Senior counsel for respondent No.1 is that though granted permission to canvass in custody in the year 2014, respondent No.1 was never taken out of the prison in custody for canvassing.
15. Supreme Court in the decision reported as (2014) 9 SCC 1 Manoj Narula Vs. Union of India has expressed its serious concern over the issue of criminalization in politics. Dealing with the issue of criminal antecedents and criminal background, the Supreme Court in the concurring view expressed by Madan B. Lokur, J. held-
"122. The law does not hold a person guilty or deem or brand a person as a criminal only because an allegation is made against that person of having committed a criminal offence--be it in the form of an off-the-cuff allegation or an allegation in the form of a first information report or a complaint or an accusation in a final report under Section 173 of the Criminal Procedure Code or even on charges being framed by a competent court. The reason for this is fundamental to criminal jurisprudence, the rule of law and is Crl.M.C. 689/2017 Page 13 of 23 quite simple, although it is often forgotten or overlooked--a person is innocent until proven guilty. This would apply to a person accused of one or multiple offences. At law, he or she is not a criminal--that person may stand "condemned" in the public eye, but even that does not entitle anyone to brand him or her a criminal. Consequently, merely because a first information report is lodged against a person or a criminal complaint is filed against him or her or even if charges are framed against that person, there is no bar to that person being elected as a Member of Parliament or being appointed as a Minister in the Central Government.
123. Parliament has, therefore, in its wisdom, made a distinction between an accused person and a convict. For the purposes of the election law, an accused person is as much entitled to be elected to the Legislature as a person not accused of any offence. But, Parliament has taken steps to ensure that at least some categories of convicted persons are disqualified from being elected to the Legislature. A statutory disqualification is to be found in Section 8 of the Representation of the People Act, 1951. The adequacy of the restrictions placed by this provision is arguable. For example, a disqualification under this Section [Section 8(3)] is attracted only if the sentence awarded to a convict is (sic not) less than 2 years' imprisonment. This raises an issue: What if the offence is heinous [say an attempt to murder punishable under Section 307 of the Penal Code (IPC) or kidnapping punishable under Section 363 IPC or any other serious offence not attracting a minimum punishment] and the sentence awarded by the court is less than 2 years' imprisonment. Can such a convict be a Member of a Legislature? The answer is in the affirmative. Can this Court do anything about this, in the form of framing some guidelines?"
16. Even though a person with criminal background and antecedents would not be a desirable person to contest the elections but the legislation does not debar him from contesting the elections. Thus, as long as the Representation of the People Act, 1950 qualifies a citizen to contest an election, he cannot be prohibited from contesting the same by filing the Crl.M.C. 689/2017 Page 14 of 23 nomination. However, a right to contest the election cannot imply that the candidate gets a right to be released from jail for canvassing as a candidate for being elected. If the candidate is in custody for an alleged offence, it would be the discretion of the Court to release him or not, depending on the facts and circumstances of the case. When a person in custody fills up a nomination as a candidate, he does not get a vested right to be released for canvassing. He runs the risk if not released on bail to contest election from custody. Though the fact that the candidate has to contest the election may be a relevant factor for grant of bail but that is not the only consideration. Bail to an accused contesting election cannot be granted dehors the parameters of grant of bail laid down by the Supreme Court in various decisions.
17. The legal right of a candidate to contest an election does not translate into a legal right to canvass for his candidature. Further the requirement of a candidate to canvass in an election for himself is always subservient to the larger public interest i.e. the Constitutional mandate of holding a free and fair election. No candidate can be permitted to do any act which interferes with the process of a free and fair election.
18. Indubitably, even if the impugned order passed by the learned Trial Court was in ignorance of the facts now being shown by the Election Commission, this Court in exercise of its power under Section 482 Cr.P.C. to prevent abuse of process of Court or in the interest of justice can reconsider the issue and pass appropriate orders.
19. As noted above senior learned Senior counsel for the Election Commission has handed over in sealed cover material to show that while canvassing, law and order problems were created and various FIRs were Crl.M.C. 689/2017 Page 15 of 23 registered. This happened when the respondent No.1 was earlier released in the year 2012. Even in this year in January 2017, FIR has been registered wherein supporters of respondent No.1 were found creating law and order situation.
20. It is well settled that a mere apprehension of an incident is not sufficient to debar a person from exercising his statutory right, however if there is credible material and the subjective satisfaction of the administrative authority is based thereon then not only would the Election Commission be within its power to seek countermanding or postponement of the polls but also revocation of an order passed by a Court in favour of an accused. Further the Election Commission is not required to take measures only post facto by countermanding the elections, it can and has to take preventive measures as well. From the material placed on record, it cannot be said that the subjective satisfaction of the Election commission is a mere apprehension not based on any credible material. On the material placed by the Election Commission in sealed cover, which is also brought to the notice of learned counsels for respondents, it cannot be held that no case is made out before this Court by the Election Commission for interfering with the impugned order.
21. There is further merit in the contention of learned Senior counsel for the Election Commission of India that while seeking permission to go out during the daytime in custody respondent No.1 has been provided security cover which is violative of the Instructions of the Election Commission. It is contended that the kind of security cover sought and granted is in itself sufficient to overawe the electorate, thus interfering in the free and fair elections.
Crl.M.C. 689/2017 Page 16 of 2322. The use and display of arms and ammunitions during election period is banned under the Instructions of the Election Commission of India reissued on 1st September, 2009 as per clause 3.21 as noted under:
"Display of Arms 3.21 Display of arms in procession in support of a candidate during campaign period, tantamount to threat and intimidation to voters at election. The Commission directs that no individual or group of persons can be allowed to display arms during a procession or any meeting in support of a candidate, under any circumstances. The meeting/procession for campaigning of a party should be Video-graphed."
23. Learned Senior counsel for respondent No.1 in response submitted that he does not need armed guards and if the same is a violation of the instructions issued by the Election Commission then the Court may delete the said condition and the respondent No.1 has no objection to it.
24. The impugned order is not an order granting bail to respondent No.1 under Section 439 Cr.P.C. wherein the Court remains in constructive custody of the accused through the surety, nor was in the application a bail order sought for by respondent No.1 as is evident from the contents of the application filed noted later on. The impugned order is a composite order where the custodia legis of respondent No.1 continues by posting armed guards. This is contrary to clause 3.21 of the Instructions of the Election Commission of India. It is well settled that what cannot be done directly cannot be done indirectly. No Court can pass orders violating the ethos of a free and fair election. Undoubtedly the impugned order violates the instructions of Election Commission of India.
Crl.M.C. 689/2017 Page 17 of 2325. Having noted the legal position on the two issues raised by the Election Commission, this Court is neither setting aside nor modifying the impugned order on the two issues noted above as the impugned order is liable to be set aside on the last issue itself, dealt in hereinafter.
26. The last contention required to be now dealt with is whether the impugned order passed by the learned Additional Sessions Judge is within the four corners of the Code of Criminal Procedure, 1973 and thus a legal order. Indubitably, the term 'custody parole' used by the learned Additional Sessions Judge in the impugned order is a misnomer used in common parlance even for under trial prisoners when they are permitted to go out of the jail in custody. Contention of learned Senior counsel for the Election Commission of India is that parole could not have been granted firstly for the reason respondent No.1 was not a convict and secondly, if granted, there was a violation of the guidelines laid down by the competent authority governing release of prisoners on parole. As noted above, respondent No.1 is not a convict and thus parole i.e. suspension of sentence as permitted under Section 432 of the Code of Criminal Procedure 1973 could not have been granted to respondent No.1 nor is the Court of Additional Sessions Judge competent to grant the same, as the power to suspend the sentence vests with the Government after the judgment of conviction is passed by the Trial Court and confirmed by the Superior Court when the Court is no longer seized of the matter. Therefore, the guidelines framed by the Government of NCT of Delhi 2010 have no application to the facts of the present case. Thus, when the impugned order was passed by the learned Additional Sessions Judge, no notice was required to be given to the Election Commission of India. However, it was the duty of the prosecuting agency to have collected the Crl.M.C. 689/2017 Page 18 of 23 entire relevant material and placed the same before the Court in response to the application filed by respondent No.1 seeking permission to go out in custody during the day and canvas for himself. A perusal of the reply by the CBI reveals that the objections taken to oppose the application of respondent No.1 were that respondent No.1 has a long criminal record, is involved in organized criminal syndicate, there are chances of his absconding and intimidating the witnesses. Even in the response filed before this Court, the stand of the CBI, the prosecuting agency continues to be the same. There is no reference whatsoever that the permission to respondent No.1 to be taken out in custody during the day hours for canvassing would affect free and fair elections. The objections which are now being sought to be raised by the Election Commission of India were not taken before the learned Additional Sessions Judge by the CBI, thus the Court had no occasion to deal with the same.
27. In Sunil Fulchand Shah (supra) Constitution Bench of the Supreme Court noting the various definitions of the word 'parole' held that there is no statutory provision in the Code of Criminal Procedure containing any provision for grant of parole, however by various administrative instructions framed by different States grant of parole is regulated. Thus the action for grant of parole is generally speaking, an administrative action.
28. The power of the Government to suspend or remit sentences flows from Section 432 of the Code of Criminal Procedure, once the prisoner is convicted by the Court. The same is an administrative power loosely termed as 'parole' and 'furlough'. The distinction between the two being that 'parole' is a temporary release of the prisoner for a special purpose and a Crl.M.C. 689/2017 Page 19 of 23 particular period from jail whereas 'furlough' though also temporary release is granted for maintaining good behaviour and as a matter of reward.
29. Contents of the application filed by respondent No.1 before the learned Additional Sessions Judge are noted as under:-
"APPLICATION ON BEHALF OF APPLICANT/ACCUSED MOKHTAR ANSARI SEEKING DIRECTION FOR CUSTODY PAROLE TO FILE NOMINATION AND CANVASSING IN LEGISLATIVE ELECTION 2017 IN U.P. FOR U.P. STATE LEGISLATIVE ASSEMBLY ELECTION Most respectfully showeth as under:
1. That the police P.S. Ghazipur arrested the applicant/accused in the captioned false, frivolous and politically motivated case on 22.12.2005 and since then the accused/applicant is in judicial custody.
2. That the prosecution has examined 41 witnesses till date including all eye-witnesses. The only police witnesses remain to be examined in trial.
3. That the Election Commission of India declares election to be scheduled in March, 4 for Mau constituency and result will be declared on 11th March, 2017. That the date for filing nomination is fixed from 8th February to 14th February, 2017.
4. That the applicant/accused is sitting MLA from Mau Constituency, Uttar Pradesh since last four terms and his party workers has done lot of works for welfare of the public of his constituency.
5. That the applicant/accused wants to file nomination from Mau constituency on 11th February, 2017 and campaign for election canvassing till 4th March, 2017.
6. That the applicant/accused seeks permission of this Hon'ble Court to grant him custody parole from 15th February, 2017 till 11th March, 2017 i.e. the date of declaration of result.
7. That the applicant/accused was earlier granted custody parole in the present case by this Hon'ble Court on 03.05.2014 for election campaign and by Ld. ASJ Ms. Savita Rao vide order dt. 30.04.2014 from 01.05.2014 till 10.05.2014. That the accused/applicant was also earlier granted custody parole by the court of Ms. Savita Rao, Ld. ASJ, Teeshazari Court vide order dt. 30.01.2012 for Crl.M.C. 689/2017 Page 20 of 23 campaigning in UP Assembly election from 31.01.2012 to 09.02.2012.
8. That the Varanasi 100 KM from Mau and Village Gondour is approx.45 KM from Mau constituency.
9. That the applicant/accused undertakes to abide by the terms and conditions of police custody parole and trial shall not be effected in any manner as he is continuously represented through his counsel and no adjournment was sought by him till date.
10. That in Dhananjay Singh versus State Govt. of NCT Delhi, the Hon'ble Supreme Court has granted bail temporarily for one week to the petitioner who was a Member of Parliament, to enable him to submit his nomination papers before Returning Officer, Jaunpur, UP.
11. That the petitioner has never misused the favour of custody parole granted to him by this Hon'ble Court earlier and abide by the terms of order in letter and spirit.
12. That the applicant/accused undertakes to abide by any terms and conditions imposed on him by this Hon'ble Court for granting custody parole.
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to grant police custody parole to the applicant/accused from 15th February, 2017 to 11th March, 2017 for filing nomination and campaigning for election in Mau constituency, in the interest of justice."
30. The application filed by respondent No.1 does not even note the provision of the Code of Criminal Procedure under which exercise of discretion was sought from the learned Additional Sessions Judge. The applicant does not seek bail either regular or temporary under Section 439 Cr.P.C. There is no power akin to Section 482 Cr.P.C. with the learned Additional Sessions Judge.
31. If the Court was exercising a power under Section 439 Cr.P.C. which is vested in it, it could have, to do complete justice, pass orders incidental thereto for proper execution of the said order as held by the Constitution Crl.M.C. 689/2017 Page 21 of 23 Bench of the Supreme Court in the decision reported as AIR 1956 SC 44 Matajog Dobey vs. H.C. Bhari. However, as noted above respondent No.1 neither sought exercise of the judicial discretion under Section 439 Cr.P.C. nor was granted. A Court of Additional Sessions Judge is a creation of the Code of Criminal Procedure Code and it has to act within the bounds of the same. While passing the impugned order the learned Additional Sessions Judge exercised the power which was not vested in it. Supreme Court in the decision reported as (2012) 5 SCC 690 Rashmi Rekha Thatoi & Anr. Vs. State of Orissa & Ors. noted:-
"37. In this regard it is to be borne in mind that a court of law has to act within the statutory command and not deviate from it. It is a well-settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power a court is bound to act within the four corners thereof. The statutory exercise of power stands on a different footing than exercise of power of judicial review. This has been so stated in Bay Berry Apartments (P) Ltd. v. Shobha [(2006) 13 SCC 737] and U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479 : 2006 SCC (L&S) 250] ."
32. After a person is arrested and produced before the Court, thereafter he is in the custody of Court i.e. 'custodia legis'. Even the Superintendent, Jail or the Police Officer taking to and fro the prisoner to the Court holds the custody of the prisoner on behalf of the Court. By the impugned order no bail has been granted to the respondent No.1 and the respondent No.1 was directed to be in the custody of the Court to be held by the officers of State as directed. The custody of the prisoner away from the prison or the Court to any other place cannot be shifted except for a short period and only to meet emergent situations like death in the family, or to go to hospital or marriage Crl.M.C. 689/2017 Page 22 of 23 of a child or sibling etc. The same cannot extend for long periods and for daily visits and cannot be substitute of a grant of bail. By passing the impugned order, the learned Additional Sessions Judge without granting temporary bail has passed an order as effective as that.
33. A free and fair election is the basic structure of the Constitution, but no candidate has a legal right to canvas for himself de-hors the other statutory restrictions. When a person in custody fills up a nomination for candidature, he does not get a vested right to be released for canvassing. He runs the risk of being not released on bail to canvas for himself. Though the fact that an accused is contesting the election and is required to canvas for himself may be a relevant factor for grant of bail, however that is not the only consideration. Even though an order passing a temporary bail has not been granted in favour of the respondent No.1 but the import of the order i.e. release of the respondent No.1 everyday till 4 th March, 2017 from 7.00 AM to 8.00 PM is akin to a temporary bail. By passing the impugned order the learned Trial Court also failed to take note of other relevant conditions which have been prescribed by the Supreme Court time and again for grant of bail. As noted above, the learned Additional Sessions Judge only noted that the respondent No.1 was earlier also granted such a concession. The impugned order is thus ex-facie illegal and is set aside on this count itself.
34. Petition and the application are disposed off setting aside the impugned order.
(MUKTA GUPTA) JUDGE FEBRUARY 27, 2017 'ga' Crl.M.C. 689/2017 Page 23 of 23