Delhi Assembly Elections: Court Dismisses Plea Seeking FIR Against Arvind Kejriwal, Prakash Jarwal; Calls It 'Abuse of Process'

Additional Sessions Judge Vrinda Kumari dismissed the complaint with a cost of Rs. 1000, observing that it did not disclose commission of any cognizable offence.

"There are no grounds to direct registration of FIR or to take cognizance. The application u/s 156(3) Cr.P.C. is, therefore, dismissed with cost of Rs 1000/- to be deposited in DLSA," the judge said in an order dated September 27.

The complaint was filed by Dal Chand Kapil, member of Scheduled Caste (SC) Community, who had contested the election from Deoli (SC) constituency in 2015 and 2020. Kapil alleged that Jarwal, who won the election from the reserved seat in 2020, belongs to Bairwa/Berwa Community which falls in the category of OBC in Delhi.

His election from the constituency has reduced the representation of SC Community in the Delhi Assembly by one seat, the complaint alleged.

Contending that Jarwal was not eligible to contest from the seat, Kapil alleged that a false and forged certificate was issued to misinform and cheat the officials of Election Commission of India. He further submitted that Kejriwal and Rai are jointly and severally liable for the "conspiracy" of reducing SC representation in the assembly by giving party ticket to a "non SC candidate".

The SC Certificate dated May 11, 2006 issued by the then Sub- Divisional Magistrate was a forged document, alleged Kapil, who had also complained to the Returning Officer. Kapil had also filed a complaint in April 2021 with the police but no FIR was registered. A complaint was also lodged with the DCP concerned but to no avail, Kapil told the court.

It was submitted before the court that by not registering the FIR, the police officers were liable under Section 4 of the SC & ST Act and under Rule 5(1) of the SC & ST Rules 1995. The complaint sought FIR against the proposed respondents under Section 3 (1)(q), 3(2)(v), 3(2)(va) and 3(2)(vii) of the SC & ST Act, 1989 along with Sections 420, 468, 471 and 120B. Section 166, 167, 190, 193, 196, 197, 198, 199 and 217 IPC were also sought to be invoked against the Returning Officer.

Perusing the SC certificate issued in the name of Jarwal, the court noted that it was issued by the SDM under the category of "such SC / ST person who had migrated from other State or UT Administration."

The judge also took judicial notice of the 2018 directions issued by the Centre which requested the authorities of all State Governments and Union Territory Administrations that they may issue SC/ST certificate to a person who has migrated from another State on the production of the genuine certificate issued to his or her father showing his origin except where the Authority feels that detailed inquiry was necessary before issuance of such certificate.

"In view of the above-said directions of Government of India as also the contents of the Scheduled Caste Certificate dated 11.05.2006, the Court is unable to take a prima facie view that the Scheduled Caste Certificate dated 11.05.2006 is a forged or false document or that it was got prepared by furnishing a false information. No offence punishable under Sections 420/465/468/471 IPC is made out," the court said.

It added "It also appears that the complainant has taken the plea of conspiracy to somehow bring the present case in the sphere of the scheduled offence u/s 120B IPC. Consequently, no offence punishable u/s 3(2)(v)(va) & (vii) of the SC & ST Act is made out."

The court also noted that the complainant had also challenged Jarwal's election before the Delhi High Court in 2020 by way of an election petition which is still pending. The issue is still sub-judice before Hon'ble High Court of Delhi, the court said.

It was also noted that the complaint before the court was filed after two years of filing of the Election Petition before the High Court and one year after filing of complaint to the police, adding that no cogent reason was provided for the delay.

"Even if it is assumed at this stage (even though the issue is still sub-judice before Hon'ble High Court of Delhi) that respondent no. 6, being a person of SC/ST Community in Rajasthan but of OBC Community in Delhi was not eligible to contest Assembly Election from the reserved assembly constituency in Delhi, the act of his contesting the Delhi State Assembly Election 2020 from such reserved seat does not fall within the meaning 'atrocity' as defined in Section 2(a) r/w Section 3(1)(q) of the SC & ST Act, 1989," the court added.

The court also observed that the attempt of the complainant to bring the subject matter of the Representation of the People Act within the ambit of the SC & ST Act is an "abuse of process."

Title: Dal Chand Kapil Vs State & Ors.