K.Sudhakaran vs The State Of Kerala
2021 Latest Caselaw 5171 Ker

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 6-01-
2021, 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

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 2nd 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

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 ശതളവര 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

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

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,

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

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





                           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.