K. Sudhakaran v. State of Kerala

Crl.M.C.1941/2020 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942** **Crl.MC.No.1941 OF 2020(C)** **AGAINST THE ORDER/JUDGMENT IN CC 928/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDRUG** **CRIME NO.341/2016 OF Bekal Police Station , Kasargod** ## **PETITIONER/ACCUSED:** **K.SUDHAKARAN, AGED 71 YEARS S/O.V.RAMUNNI, MEMBER OF PARLIAMENT, LAL VIHAR, KIZHUNNA P.O., KANNUR -670007.** **BY ADVS. SRI.P.MARTIN JOSE SRI.THOMAS P.KURUVILLA SRI.R.GITHESH SRI.AJAY BEN JOSE SRI.MANJUNATH MENON SRI.SACHIN JACOB AMBAT SHRI.HARIKRISHNAN S.** ## **RESPONDENT/DEFACTO COMPLAINANT/STATE:** **1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** - **2 K.KUNJIRAMAN, ALACODE, PAKKAM, BEKAL FORT, KASARAGOD, PIN-671316.** **R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** ## **OTHER PRESENT:** ## **ADGP SRI.SURESH BABU THOMAS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 6-012021, THE COURT ON 12-02-2021 PASSED THE FOLLOWING:** Crl.M.C.1941/2020 2 ## **O R D E R** ## **Dated this the 12th day of February 2021** Petitioner is the sole accused in Crime No.341/2016 of Bekal Police station for offences punishable under section 171F read with section 116 IPC. 2. The petitioner was a candidate of one political front for the general election to the Kerala State Legislative Assembly held on 16/5/2016 from Uduma Constituency. Second respondent was the main rival candidate sponsored by the opponent Front. The second respondent laid a complaint before the District Police Chief against the petitioner alleging that,in a family meeting held in connection with the general Legislative Assembly election held on 16/5/2016, petitioner influenced his political workers to vote in the names of dead persons and those who were abroad. Complaint was forwarded to the Bekal Police station by the District Police Chief . 3. Bekal Police, on finding that it disclosed allegation of commission of a non cognizable offence, filed CMP No.3770/2016 before the Judicial First Magistrate II, Hosdurg, seeking permission to register FIR and to conduct investigation for offences under Section 171F read with section 116 IPC. The learned Magistrate granted permission and crime No.341/2016 was registered. On completion of investigation, final report dated 18/5/2017 for offence punishable under section 171F read with section 116 IPC was laid. Cognizance was taken and process was issued to the accused. The matter is now pending Crl.M.C.1941/2020 3 as CC No.9289/2017 before the Judicial First Class Magistrate, Hosdurg. The above issuance of process and the final report is challenged by the accused in this criminal MC, contending that the proceeding against him is bad, both on merits as well as on law. 4.Heard the learned senior counsel for the petitioner and the learned public prosecutor for the State. The 2[nd] respondent complainant did not appear in spite of service of notice. 5. The learned senior counsel advanced three specific contentions. Firstly, it was contended that no offence was made out from the facts disclosed by the prosecution. Secondly, even from the available materials, offences under section 171F read with section 116 IPC were not made out. The third contention was that cognizance was taken in breach of section 155 of Cr.P.C. 6. The specific allegation of the prosecution was that in a family meeting called by the political party of the petitioner herein, he had instigated his political workers to vote in the name of deceased persons as well as persons who were abroad. According to the prosecution, the meeting was held on 1/6/2016. The above statement is sought to be established by the production of his voice recording in a CD and also the statement of persons who had attended the above family meeting and had occasion to hear the speech . On the side of prosecution, one Abdukhader who was the president of the Chemmanad Grama Panchayath and Dr. Khather Ibrahim, at whose house the meeting was conducted, were questioned and their statements recorded. The statements of both the witnesses indicate that a family meeting was organized in connection Crl.M.C.1941/2020 4 with the election ,some day at 7 p.m., at the house of Dr.Khathar Ibrahim. They admitted that in the said meeting the petitioner herein had declared that if there votes for dead and those who were abroad are cast, here will also. In vernacular version it is as follows ; "അവ�ട�, മര�ചവര�ട� വവ�ട� ട�യ�കയ�ട�ങ�ൽ, അവ�ട� വ�വ�ശത�ളവര�ട� വവ�ട� ട�യ�കയ�ട�ങ�ൽ, … ........................” ഇവ�ട�യ�� 7. Relying on this version given by the witnesses, the learned senior counsel vehemently contended that the above words allegedly spoken by the petitioner, even if established in a court of law, does not indicate any offence much less the offences now alleged. It only contain a general statement indicating that if votes of deceased persons are cast there,or of those who were abroad, here also it would be done. Not only that those words are ambiguous, need further explanation as to what exactly the speaker meant, further it seems to be in the form of an advise or a veiled warning and not a call for casting fraudulent votes by impersonation. It does not either instigate or compel any specific person to cast votes by impersonation or restrain any person from casting his franchise. The learned senior counsel relied on the decision reported in **K.M.Mathew and others v. Damoradharan Pillai (1987 KHC 532)** to contend that any newspaper giving its opinion or giving its friendly advise to the voters, will not amount to an electoral offence. The above facts indicate that, the words, as spoken by the petitioner, itself does not clearly spell out any of the offences, much less an electoral offence. Further going by the date of incident disclosed in the final report, which is 1/6/2016, it was after the Crl.M.C.1941/2020 5 ## election held on 16/5/2015. 8. Learned senior counsel for the petitioner further contended that, the ingredients of section 171F read with Section 116 IPC were not attracted from the above materials. Section 171 F relates to the punishment for undue influence or impersonation at an election. It provides for punishment to any person found guilty of undue influence or impersonation at an election. Section 171C of the IPC refers to undue influence. It indicates that any person who voluntarily interferes or attempts to interfere with the free exercise of any electoral right, commit the offence of undue influence. Section 171D of IPC deals with impersonation at election. It provides that whoever at an election applies for or votes in the name of another person whether living or dead or in a fictitious name or who having voted once in such election, applies to vote in his own name and whoever abets such acts are liable for punishment under section 171 D. 9. Section 171 C, as the ingredients of offence clearly indicates, could be attracted only when one voluntarily interferes or attempts to interfere with the free exercise of any electoral right. In this case even from the words spoken, no such interference or attempt for interfering with free exercise of electoral right of any person is made out. Further, section 171 D will apply only when a person at an election, applies for a voting paper or votes in the name of any person or in a fictious name, or votes a second time or applies for a voting paper after having voted once. Here evidently that situation has not arisen. In **E** . **Anoob v. State of Kerala (2006 KHC 854),** this court had held that the impersonation under Crl.M.C.1941/2020 6 section 171D will be attracted only when a person handsover a slip showing the name of a voter other than himself. Even that act is sufficient to attract the offence. None of the ingredients of section 171D are attracted in the facts of this case. Consequently, offence under Section 116 of IPC which deals with abetement also does not arise. Having considered this, it is evident that the above offences attributed to the petitioner are not made out from the facts of this case. 10. The petitioner has a specific case that the cognizance was taken in a non cognizable offence in breach of section 155(i) of the Cr.P.C. Section 155(1) of Cr.P.C. provides that when an information is given to an officer in charge of the police station of the commission, within its limit, of a non cognizable offence, he shall enter or cause to enter in a book to be kept by such office and refer the complainant to the Magistrate. In the case at hand, the complaint was forwarded by the District Police Chief to the SHO. He, based on it, filed an application for permission to investigate. Evidently, neither the substance of the information was recorded in a book nor the informant was directed to the Magistrate. The question that was forcefully advanced by the learned senior counsel was that , whether the SHO himself can seek permission from the court. 11. It seems that, a learned Judge of this Court in **Anto Joseph v. State of Kerala and Others** ( **2016 (3) KHC 832)** had held that the order for investigation can be obtained either on the motion of the complainant himself or at the instance of the officer in charge of the police station. It was held that, Crl.M.C.1941/2020 7 there is no stipulation that complainant himself should appear before the Magistrate. However, in a subsequent decision of this Court in **Biju V.G.(Dr.)v. State of Kerala (2020) 5 KHC 685)** another learned single judge had held the view that, if a non cognizable offence is made out from the complaint, it was within the domain of the informant to decide whether he should approach the police with a complaint or whether he should approach the Magistrate and to obtain sanction under section 155(2). The police officer is not permitted to apply for getting sanction under section 155 (1). It seems that, evidently, the subsequent decision of this court takes a totally different view from that the earlier decision. 12. It seems that, few other courts have taken different view on this. The Delhi High Court in **AdeshKumar Gupta v. CBI Laws (DLH) 2015 at page 96)** had held that when the information is given to an officer in charge of a police station of the commission within the limits of such station of an non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. A plain reading of sub section(1) of section 155 of Cr.P.C. provides that on receiving the information, the police has to enter the information in a book kept for this purpose and secondly refer to the Magistrate. It was held that, the informant should be directed to appear before the magistrate and to seek permission. Delhi High Court held that CBI ought to have followed the procedure in that case and ought to have referred the informant to the Magistrate. In **Sajjal Agarwal** Crl.M.C.1941/2020 8 ## **v. State of Andhra Pradesh (Laws (APH) 2010 page 966)** , the question arose whether a police officer can approach the Magistrate seeking permission under section 155 Cr.P.C. It was held that though 155 (1) of the Code provides that the police officer shall direct the informant to the Magistrate, sub section (2) of Section 155 of the Code, visualize a different situation, whereby either the police or the informant or the court itself suo motu can apply for sanction. It seems that section 155 (1) provides for a specific procedure and sub section (2) of section 155 prohibits an investigation without such permission. In the light of the above decision, I feel that the decision of this Court in **Biju V.G.(Dr.) v. State of Kerala and Another (2020 (5) KHC 685)** is liable to be followed. Definitely in the case at hand, section 155 (1) was not complied with. 13.On an appreciation of the entire facts it is evident that, the allegation of the prosecution as against the petitioner does not disclose the commission of offence under 171 (f) read with section 116 IPC. Further, the procedure adopted by the prosecution was not in consonance with section 155(1) of Cr.P.C. To that extent, there is the procedural irregularity. Having considered these facts, I am inclined to hold that the criminal proceeding against the petitioner is liable to be quashed. Crl.M.C.Stands allowed. All further proceedings in CC No.928 of 2017 of the Judicial the First Class Magistrate – II, Court, Hosdurg, Stand quashed. **Sd/-** dpk **SUNIL THOMAS** **JUDGE** Crl.M.C.1941/2020 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF F.I.R. IN CRIME NO.341 OF 2016 OF BEKAL POLICE STATION.** **ANNEXURE B CERTIFIED COPY OF FINAL REPORT IN CRIME NO.341 OF 2016 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE-II COURT, HOSDURG.**