'No Criminal Action For Allegation Of Corrupt Electoral Practice Under Sec.123 RPA' : Karnataka HC Quashes Complaint Against CM Yediyurappa

The complaint was filed by one Laxman Allapur, who was deputed on election duty as a Flying Squad by the District Election Officer, Belagavi for Gokak Constituency Bye-Elections. It was alleged that Yediyurappa, while campaigning for the BJP Candidate Ramesh Jarkiholi, had appealed in his speech that the Veerashaiva Lingayat Community Members votes must be consolidated and that they should not disperse here and there and as such he has violated the Election Code of Conduct.

On receiving the complaint, Gokak police filed an application under Section 155(2) of the CrPC seeking permission to investigate, as the offenses were non-cognizable. Such permission was granted by the Magistrate. After investigation, the police filed a report stating that no offence of corrupt electoral practise was made out. The Magistrate rejected this report, and issued summons to Yediyurappa, after noting that a prima facie case was made out.

Challenging this, the Chief Minister approached the High Court, under Section 482 of the Code of Criminal Procedure.

The High Court held that an allegation of electoral malpractice under Section 123(3) of the Representation of Peoples Act cannot lead to any penal action, and can only lead to the invalidation of the election if proved. It can lead to a cause of action for filing an election petition to invalidate the result but not a criminal complaint for prosecution, held the court.

Justice Suraj Govindaraj summarized the findings as follows:

#An action on a complaint as regards violation of Section 123 of the Representation of Peoples Act, 1951, i.e., on account of a corrupt practice being committed is limited to the candidate, resulting in his disqualification or voiding of his/her result in the event of such candidate having returned successfully.

#An action for violation of Section 123 of the Representation of Peoples Act, 1951, can only be initiated against the candidate seeking for his/her disqualification and voiding of his/her result in the event of such candidate having returned successfully, hence no action can be taken against the agent or a person authorised by him for such corrupt practice in terms of section 123 of the Representation of Peoples Act, 1951.

#Violation of Section 123 of the Representation of Peoples Act, 1951 in the present scheme of the legislation would amount to corrupt practice, providing a cause of action for filing of an election petition under Section 81 read with Section 100 and 101 of the Representation of Peoples Act, 1951; there can be no penal action initiated by way of criminal prosecution.

#For initiation of Criminal prosecution the violation complained of should come within the ambit of Chapter III part VII of the Representation of Peoples Act, 1951, in the present case at the most the allegations can be said to come under section 125 thereof, which require the establishment of promotion of enmity or hatred as a sine qua non, which has not been so done.

#In the present case on the basis of the allegation made in the complaint it cannot be prima facie concluded that the Petitioner has committed an offence under Section 171F of the IPC by exercising undue influence on the person/s who had gathered for an election rally in terms of Section 171C of the IPC.

#On the filing of the B report, the Magistrate is required to notify the Informant/Complainant about the same. It is only if the Informant opposes or objects to the B report that the Magistrate can record the sworn statement of the Informant. If the sworn statement were to establish defects in the investigation, the Magistrate may set aside the B report and proceed with the case after taking cognisance.

#A Magistrate cannot suo moto reject the B-report without notice being ordered on the complainant.

#A magistrate can reject the B-report only if the sworn statement of the Informant were to prima-facie make out on offence having been committed by the Accused.

#A Magistrate cannot suo moto take cognisance of the offence without the issuance of notice to the complainant.

#A Magistrate would have to pass an order under Section 202(1) of the Cr.P.C. to indicate as to why process is being issued by the Magistrate to an accused who is not residing within the jurisdiction of that Court and for this purpose, sworn statement of the complainant as also the affidavit evidence if any of the complainant's witnesses could be recorded leading to an order by the Magistrate based on his satisfaction that there are sufficient grounds for issuing summons to such accused residing outside its jurisdiction.

#There would be no requirement of Section 65-B certificate at the stage of examination by the Magistrate whether to take cognisance or not, a Magistrate can always look into any electronic evidence, even if unaccompanied by a certificate under Section 65-B of the Indian Evidence Act for the purpose of taking cognisance or not of an offence.

Title: B.S. Yediyurappa, S/o. Late Siddalingappa, Chief Minister, State of Karnataka And State of Karnataka.

Case No: CRIMINAL PETITION NO.100964/2020

Date of Order: September 11, 2020.

Coram: Justice Suraj Govindaraj.

Appearances: Senior Advocate C.V. Nagesh, A/w Advocate Sandeep Patil, for petitioner.

Special Public Prosecutor V.M. Sheelvant, for respondent 1.

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