The Gujarat High Court while quashing an FIR against former MLA Vibhavriben Vijaybhai Dave for allegedly violating the model code of conduct during the 2019 elections has ruled that chanting "Modi hai toh mumkin hai" and displaying the victory sign would not be considered election canvassing.

Justice Cheekati Manavendranath Roy held, “As rightly contended by learned Senior Counsel for the petitioner, mere showing a symbol of victory with two fingers of the hand by the petitioner after coming out of the polling station and uttering the above words by itself would not amount to committing an act of canvassing for votes.”

“No elector, who is present at the polling station, complained that the petitioner has by way of showing that victory symbol or uttering the said words canvassed for votes at the polling station. Further mere expressing herself by way of said gesture and uttering said words, in the considered view of the Court, will not amount to committing an act of canvassing for votes. The word “canvassing” is not defined in the Representation of People Act, 1952. Therefore, we have to go by the general and literal meaning of the said word,” Justice Roy added.

The above ruling came in a Special Criminal Application filed under Section 482 of the Criminal Procedure Code by Dave seeking quashing of an FIR registered for the offences punishable under Section 13 (1) (a) of the Representation of the People Act, 1951.

According to the factual background, Dave contested the election for the Member of the Legislative Assembly of Bhavnagar Assembly Constituency in 2019. On the polling day, after casting her vote, it was submitted that she exited the polling station and made a hand gesture forming a "V" sign, symbolizing victory, while stating, "Modi hai toh mumkin hai" (If Modi is there, everything is possible).

It was stated that the State GST Inspector of Bhavnagar North, designated as a Flying Squad Member by the State Election Commissioner, acted as the de facto complainant and reported Dave's actions to the police, alleging a violation under Section 130 (1) (a) of the Representation of the People Act, 1951.

Although the crime was registered in 2019, the investigation was still pending.

Dave filed a petition seeking the quashing of the FIR, on the ground that even if the allegations were true, they did not constitute an offence under Section 130 (1) (a), rendering the FIR legally unsustainable.

JS Unwala, Senior Counsel for the petitioner, strongly argued that according to Section 130 (1) (a) of the Act, committing an act of canvassing for votes is only considered an offence if it occurs at the polling station on the polling date or within 100 meters of any public or private place adjacent to the polling station.

He further emphasized that simply displaying a victory sign with two fingers and uttering the phrase "If Modi is there then everything is possible" does not constitute an act of canvassing for votes. Therefore, he asserted that there is no basis for an offence under Section 130 (1) (a) of the Act in this case.

Consequently, he urged the court to dismiss the FIR, arguing that continuing criminal proceedings against the petitioner under these circumstances would amount to an abuse of the court's process.

The crucial question before the Court was whether the gesture of displaying a victory sign with two fingers while saying, "if Modi is there that everything is possible," amounts to canvassing for votes, which is an offence under Section 130(1)(a) of the Act.

To address this issue, the Court examined Section 130 of the Act, which outlines five actions constituting offences, including:

(a) canvassing for votes; or

(b) soliciting the vote of any elector; or

(c) persuading any elector not to vote for any particular candidate; or

(d) persuading any elector not to vote at the election; or

(e) exhibiting any notice or sign (other than an official notice) relating to the election.

The Court emphasized, “The acts shown in Clause 1 (b) to (e) of Section 130 are not applicable to the present facts of the case. Only Clause (a) of Sub-section (1) of Section 130 is relevant in the context to consider. It relates to an act of canvassing for votes either at the polling station or at any public or private place within a distance of 100 meters from the polling station.”

“If any person commits any act of canvassing for votes at the polling station on the date of poll or in public or private place within the distance of 100 meters of the polling station, it constitutes an offence punishable under Section 130 (1) (a) of the Act,” the Court added.

The Court explained the meaning of the word "canvass" as defined in the Oxford English Dictionary, asserting that it refers to personally soliciting votes before or during an election, or attempting to ascertain the level of support for a candidate.

The Court stated that when a person is involved in the process of personally soliciting votes before an election or during the election or if he makes any attempt to ascertain the amount of support a candidate may count on, then it amounts to doing an act of canvassing for votes.

Consequently, the Court ruled that the actions of the petitioner did not amount to an offence punishable under Section 130(1)(a) of the Act. Considering the circumstances of the case allowed the petition and quashed the FIR.

Case Number: R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5403 of 2019

Case Title: VIBHAVRIBEN VIJAYBHAI DAVE Versus STATE OF GUJARAT & ANR.

LL Citation: 2024 Livelaw (Guj) 23