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C.KUPPUSAMY versus ELECTION COMMISSION

High Court of Madras

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C.Kuppusamy v. Election commission - WP.12996 of 2002 [2007] RD-TN 1912 (13 June 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 13.6.2007

CORAM:

THE HONOURABLE MR.JUSTICE DHARMARAO ELIPE

AND

THE HONOURABLE MR.JUSTICE S.PALANIVELU

Writ Petition No.12996 of 2002,

W.P.M.P.Nos.17487 of 2002

and 1168 of 2007

C.Kuppusamy ... Petitioner Vs.

1.Chief Election Commissioner,

Election Commission of India,

Nirvachan Sadan,

Ashok Road,

New Delhi-110001.

2.Chief Electoral Officer,

Tamil Nadu.

3.The Returning Officer,

Bhuvanagiri Assembly Constituency,

Bhuvanagiri.

4.The Returning Officer,

Pudukkottai Assembly Constituency,

Pudukkottai.

5.The Returning Officer,

Antipatti Assembly Constituency,

Antipatti.

6.The Returning Officer,

Dharmapuri Assembly Constituency,

Dharmapuri. ... Respondents J Jayalalithaa ... Petitioner in WPMP.1168/2007 * * *

This Public Interest Writ Petition has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus directing respondents to initiate appropriate action, by launching prosecution against Selvi J.Jayalalitha in accordance with law for the offence alleged to have been committed under Section 177 IPC and directly control and monitor the same under the powers of judicial superintendence. WPMP.No.1168 of 2007 has been filed by the petitioner therein by name J.Jayalalithaa, praying to implead her as one of the respondents in the above writ petition. * * *

For petitioner in W.P. : Mr.P.P.Shanmughasundaram, Senior Counsel for Mr.H.Nazirudeen For R.1 to R.6 in W.P. : Mr.G.Rajagopalan, Senior Counsel for M/s.G.R.Associates

For petitioner in

WPMP.1168/2007 : Mr.N.Jothi * * *

O R D E R



DHARMARAO ELIPE, J.

This Writ Petition has been filed as a Public Interest Litigation by the petitioner, who is a Member of Parliament (Lok Sabha), praying to issue a Writ of Mandamus directing the respondents to initiate appropriate action, by launching prosecution against Selvi J.Jayalalithaa in accordance with law for the offence alleged to have been committed by her under Section 177 IPC and directly control and monitor the same under the powers of judicial superintendence.

2. In his affidavit, the petitioner would submit that in the elections for the Legislature Assembly of the State of Tamil Nadu, held in the year 2001, Ms.Jayalalithaa had proposed to contest as a candidate and filed her nomination papers in four Assembly Constituencies viz. Andipatti, Dharmapuri, Bhuvanagiri and Pudukkottai, in contravention of Section 33(7)(b) of the Representation of the People Act, 1951, and had given declarations that she had not been or would not be nominated as a candidate for more than two constituencies, however, all her nomination papers came to be rejected on the ground of disqualification arising out of her conviction in a criminal case under the Prevention of Corruption Act, 1988 besides being in contravention of Section 33(7)(b) of the Representation of People Act and therefore, she had acted in violation of the Representation of the People Act and made false declarations before the respondents 3 and 4, before whom she had filed her nominations and thus she has palpably rendered herself liable for punishment under Section 177 of IPC.

3. The petitioner would further submit that he made a representation dated 29.9.2001 to the first respondent, requesting to take immediate action, by issue of directions to the concerned authorities to initiate criminal action against Ms.Jayalalithaa and in response to the said representation, the first respondent had also conveyed to the Chief Electoral Officer of Tamilnadu/the 2nd respondent, the desire of the Commission that the Returning Officer of 66-Bhuvanagiri and 191-Pudukkottai Assembly Constituencies should examine the matter for appropriate action in the light of nomination papers and other connected documents filed by or on behalf of Ms.J.Jayalalithaa in view of Commission's clarification with reference to the relevant provisions of Section 177 IPC and 195 Cr.P.C.; that now, Jayalalithaa, on being subsequently elected as a Member of the Legislative Assembly, was sworn in as the Chief Minister on 2.3.2002; that despite his letters enclosing Commission's clarification to the respondents 3 and 4, no action has been initiated so far; that no authority can arrogate to itself the power to act in a manner which is arbitrary and in the present case, the respondents 2 to 4 are mute spectators to the offence committed by the highest authority, which is equally arbitrary enough and public authorities, like respondents 2 to 4, cannot play fast and loose with the power vested in them and in tune with the persons that be involved and persons like the petitioner are entitled to know, with exactness and precision, what they are expected to do or forbear from doing explicitly when the authority is making the order; that Ms.Jayalithaa, having been a Chief Minister in the past and currently being, as such, does not enjoy any immunity in relation to her conduct in filing nominations in flagrant violation of Section 33(7)(b) of the Representation of the People Act; that the respondents 1 to 4, as apparent from the present political atmosphere, are only inclined to desist from proceeding with tangible and concrete action against the wrongdoer; that the whole issue is allowed to languish without action and the petitioner is made to run from pillar to post for bringing to book an offender.

4. The petitioner would further submit that in the changed political scenario, when Ms.Jayalalithaa was the Chief Minister, it is highly improbable and in the circumstances almost impossible that his representation, enclosing Commission's clarification, would be fairly considered by respondents 3 and 4 and therefore, he filed this writ petition to break the shackles which the respondents 1 to 4 either implicitly or explicitly are entangled; that Article 324 of Constitution of India, prescribes 'Superintendence ... conduct of all elections' and includes powers as well as duties and in short, Article 324 vests the election authorities with vast functions, including powers and duties, essentially administrative and marginally judicative and legislative; that the facts and circumstances clearly establish that the interests of Ms.Jayalalithaa are all prevailing and now in conflict with the presumed endeavour of the respondents 2 to 4 to bring a proven offender before the law as they ought to discharge independently and impartially; that the respondents 3 and 4, though had functioned as Returning Officers under the direct control and supervision of the respondents 1 and 2, however, belong to the cadre of District Revenue Officer in the Tamil Nadu Revenue Services, which is under the authoritative control of Ms.Jayalalithaa as the Chief Minister and therefore, an antithetical situation, contrary to settled and well established principles governing adversary system in criminal jurisprudence has arisen in the State of Tamil Nadu; that since the respondents 3 and 4 have not taken any decision on his representation, the same is in violation of Article 14 of the Constitution of India, he filed this writ petition, seeking judicial intervention inasmuch as it is the judiciary which has been ordained with the task of upholding the rule of law whenever and wherever the other wings of the State perform their functions and discharge their constitutional duties incongruous to the doctrine of rule of law.

5. The petitioner would further submit that in pursuance of the specific clarification and directions by the first respondent, respondents 2 to 4 have not only disobeyed the administrative directions issued by the first respondent, but also transgressed the process of law without allowing it to take its course; that the first respondent has to work within the frame work of Art.324 and subject to the mandatory provisions of law and statutory rules and being an independent constitutional authority it is expected to act as such, without being swayed by fear or influence; that in this case, neither the first respondent has called for any report in relation to the action taken in respect of the offence committed by Ms.Jayalalithaa nor the respondents 2 to 4 have initiated any action under Section 177 IPC and hence this Court has ample jurisdiction to undo illegality and injustice by giving appropriate directions; that the respondents 2 to 4 are of legal necessity to be made subject to direct supervision and control of this Court under the extraordinary jurisdiction vested in this Court and as a result ensure that ultimately rule of law alone should prevail.

6. The respondents 1 and 2 have filed a common counter, denying all the allegations of the affidavit filed in support of the writ petition and further submitting that the petitioner herein and four other Members of Parliament from Tamil Nadu have filed the complaint with the Election Commission that Ms.J.Jayalalithaa breached the provisions of Section 33(7)(b) of the Representation of the People Act, 1951 and therefore she should be prosecuted under Sections 177 and 193 of the Indian Penal Code for making false declaration before the Returning Officers and urged that the Election Commission should take necessary action to prosecute her.

7. The respondents 1 and 2 further submitted that if a candidate files four nomination papers, his/her nomination papers in the third and fourth constituencies shall not be maintainable in law, in view of Section 33(7) of the Representation of the People Act, 1951 and shall be rejected under Section 36(2)(b) of the Representation of the People Act, 1951 and in fact the Election Commission, in its letter to the concerned authorities dated 23.4.2001 in Letter No.56/2001/JS-II/652 had clarified the above position; that as the Commission was of the view that if Ms.Jayalalithaa had filed four nomination papers and had given declaration that she had not been or would not be nominated as a candidate at the General Election from more than two constituencies, she would prima facie appear to have violated the provisions of Section 33(7) of the Representation of the People Act, 1951, for making false declaration before the Returning Officers of 66-Bhuvanagiri and 191-Pudukkottai Assembly Constituencies when she filed her nomination papers for third and fourth constituencies, the Commission had decided to ask the Chief Electoral Officer of Tamil Nadu to direct the Returning Officers of the aforesaid two constituencies viz. 66-Bhuvanagiri and 191-Pudukkottai Assembly Constituencies to examine the complaints in the light of the nomination papers and other connected documents filed by or on behalf of Ms.J.Jayalalitha before them and accordingly a communication dated 9.9.2001 was sent to the Chief Electoral Officer, Tamil Nadu in letter No.509/39/2001-JS-1/2395-2396 indicating the above position and that the Commission desired that the Returning Officers of the aforesaid two Constituencies should examine the complaints for appropriate action; that by letter dated 11.10.2001, the petitioner and other complainants were informed of the above position.

8. The respondents 1 and 2 further submitted that the Returning Officers of Bhuvanagiri and Pudukkottai Assembly Constituencies, in compliance with the directions of the Commission, submitted their reports on 10.11.2001 and 14.12.2001 respectively to the Chief Electoral Officer of Tamil Nadu stating that at the time of scrutiny of nomination, the declarations made by Ms.J.Jayalalitha in the first and second constituencies were also made available to the Returning Officers and hence there was no suppression of facts and hence no action was called for and the said reports of the Returning Officers were also forwarded to the Commission; that the Commission maintains the view that it is for the Returning Officers to apply their mind and decide the question whether there was any false declaration before them and whether there was ground for action to prosecute the candidate; that when the above writ petition came up for hearing in 2002, the above developments were brought to the notice of this Court and this Court had directed production of records, therefore, it cannot be contended by the petitioner that no action was taken in the matter either by the Commission or by the Returning Officers.

9. The respondents 1 and 2 would deny the contention of the petitioner that all the four Returning Officers should examine the question as not legally correct as the concerned candidate is entitled to file two nominations and the question of making any false declaration may not arise with regard to the first and second constituencies and as regards the third and fourth constituencies, the Returning Officers of Bhuvanagiri and Pudukottai Constituencies have reported that at the time of scrutiny of nomination, the declaration made by Ms.J.Jayalalithaa in the first and second constituencies was made available; that the Returning Officers being the sole authority to decide the question, in view of Section 195 Cr.P.C., no intervention in their decision, not to initiate any action, was called for; that the decisions taken by the Returning Officers were not separately communicated to the complainant as it was ultimately for the Returning Officer to decide and based on the complaint, enquiry was ordered and the petitioner was informed about such enquiry; that in view of the pendency of the writ petition and since the decisions of the Returning Officers were informed before the Court as early as in 2002, there was no need for the Commission to have separately communicated the decisions of the Returning Officers to the petitioner; that the Commission ordered an enquiry and the Returning Officers took a decision stating that there was no suppression of facts and hence there was no need to prosecute. On such grounds, the respondents 1 and 2 would pray to dismiss the above writ petition.

10. During the pendency of the above writ petition, Ms.Jayalalithaa, against whom action is sought for by the writ petitioner, has filed a petition in W.P.M.P.No.1168 of 200, praying to implead her as one of the respondents in the above writ petition on the ground that she came to know about the details of the above writ petition from the media and to have effective participation in the above matter, she must be impleaded as party respondent to the above writ petition.

11. The writ petitioner opposed the above impleadment petition, by filing a counter-affidavit, stating that this Court admitted the writ petition on 24.4.2002, which was given wide publicity in the media and Ms.Jayalalithaa, being the Chief Minister at the relevant point of time, chose to ignore the matter as she had the entire State administration under her control, which might probably have encouraged her to nourish a feeling that no public servant in the State would take an independent decision to launch a prosecution against the Chief Minister; that the main Writ Petition is only against the inaction of the Election Commission of India and no person, other than the Election Commission of India or its subordinates have a say in this writ petition; that any other person, however interested he is in the issue, including the prospective accused cannot be impleaded as they are not necessary parties and hence the petitioner is not a necessary party; that an accused person or a prospective accused person need not be heard prior to launching of the FIR by police or initiating prosecution before a Court of law and would pray to dismiss the above impleadment petition.

12. The learned counsel for the proposed party would submit that since the petitioner has not impleaded Ms.Jayalalithaa as a party to the writ petition, against whom the relief has been claimed, the same has to be dismissed for non-joinder of necessary parties and has relied on a judgment of the three Judge bench of the Apex Court in PRABODH VERMA AND OTHERS vs. STATE OF UTTAR PRADESH AND OTHERS (AIR 1985 SC 167) wherein the Apex Court has held: "A High Court ought not to hear and dispose of a writ petition under Art.226 without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties."

13. The learned counsel for the 7th respondent has also relied on a Division Bench judgment of this Court in THE SECRETARY TO GOVERNMENT OF TAMIL NADU vs. K.SRIRAMACHANDRAN [1987-Writ L.R.-222], wherein it has been held that "we are of the opinion that the writ petition ought to have been dismissed on the ground of non-joinder of necessary parties."

14. In the case on hand, though the relief is claimed against the 7th respondent, she cannot be branded as a necessary party for the disposal of the case, but only a proper party to the proceedings, since the writ petition has been filed alleging that the respondents 1 to 6 have failed to discharge their official duties in the manner expected by law and seeking a Writ of Mandamus against them. Therefore, rejecting the plea of the proposed party to dismiss the writ petition for non-joinder of parties, since the entire allegations and the prayer in the writ petition are targetted only against the proposed party, this Court is of the firm view that complying with the mandates of principles of natural justice, a fair and reasonable opportunity should be afforded to the proposed party to submit her case also, so as to render a binding decision on all the parties concerned, after analysing the entire facts and circumstances of the case. Therefore, W.P.M.P.No.1168 of 2007 is allowed, impleading the petitioner therein viz. Ms.Jayalalithaa as 7th respondent to the above writ petition.

15. The 7th respondent viz. Ms.Jayalalithaa has filed a counter affidavit, thereby submitting that the writ petitioner should have impleaded her as a party, when he had mentioned her name at eleven places in his affidavit and the prayers in the writ petition illustrate his wishful ambitions, which would disclose the nature of the petitioner. The 7th respondent, quoting various Rulings of the Supreme Court regarding the caution to be exercised by the Court while dealing with Public Interest Litigation, would further submit that the writ petition is not maintainable either on facts or on law; that no such offence has been committed by her and a wrong impression about the legal position has been deliberately created by the petitioner and he is harping on the same without appreciating the legal position in this context.

16. This respondent would further submit that Part VII, Chapter III of the Representation of the Peoples Act, 1951 deals with 'electoral offence'; that in fact, Sections 125 to 136 do not indicate any alleged infraction of Section 33(7) (b) of the Representation of the People Act, 1951 as an offence; that at best, as per the reading of the said provision, it leaves the subsequent two nominations as invalid, provided it could be classified and brought under the caption of 'nomination'; that a nomination of a candidate contains several documents and compliance with several procedural aspects including taking of oath; that this respondent has not taken oath beyond two Constituencies and an invalid nomination is not a nomination within the meaning of the Representation of People Act, 1951.

17. The 7th respondent would further narrate a precedent wherein a candidate, who contested from the Amethi Parliamentary Constituency in Uttar Pradesh, is alleged to have given false information about her educational qualification while submitting her nomination and when the issue was raised before the Election Commission of India for probable action against the said candidate, the Election Commission of India had left the matter to the exclusive consideration of the Returning Officer who in his discretion and wisdom did not proceed further.

18. It is further submitted that the writ petitioner seeks prosecution under Section 177 IPC on an issue which he claims to have occurred during the last week of April, 2001; that as on date, six full years stand completed from the said date; that if the ambitious provision under the writ petitioner is harping on namely, Section 177 IPC is looked into, it can be seen that it is punishable for a period of six months or with fine which may extend to rupees thousand or with both; that as per Section 195 Cr.P.C., even such a prosecution could be preferred only by the said public authority, which is a condition requisite for initiating of proceedings; that if one could look at Section 468 Cr.P.C., which deals about limitation for taking cognizance of certain offences, there is a clear bar as per Section 468(2)(c) Cr.P.C.; that with this length of a six year period, assuming, without conceding, that any prosecution could be launched, it is clearly barred by limitation; that preferring a petition before this Court will not save the limitation, because the limitation is to be counted not from the petitioner's point of view but from the point of view of the alleged cause of action on which the concerned public authority who initiates action after fulfilling Section 195 Cr.P.C. prefers such a prosecution and in short, the entire issue has become infructuous and futile and is not available in the arena of any legal field; that there are several decisions of various Courts, including the Apex Court, that by the discretion vested under Article 226 of the Constitution, Court may not enter upon an issue which had become desiccated and futile long ago; that keeping the above legal submissions, even on factual details, these are all the issues which are left to the area of the concerned officer who is guided by his own wisdom; that in view of the recent Supreme Court judgment, a Public Interest Litigation on criminal matters is not considered to be maintainable; that in fact, in yet another recent judgment, a public interest litigation which could be termed as the Politics Interest Litigation or Private Interest Litigation may not deserve any consideration under Article 226 of the Constitution of India; that the writ petitioner has not come with a clean conscience or with a clean mind or with a clean objective; that the petitioner's party has foisted scores of cases against this respondent and so far in 12 cases, she has been acquitted; that the petitioner is a busybody and interloper on the subject issue and the requirement of locus standi of the petitioner for this litigation is mandatory inasmuch as the legal capacity of the petitioner can be easily ascertained; that in view of the stand taken by the Election Commission of India and the infructuous, futile nature of the matter, this writ petition deserves to be dismissed with exemplary costs, which can be directed to be given to any charitable organization.

19. We have heard the learned counsel on either side and perused the entire materials placed on record.

20. In the light of the above pleadings and the submissions made by either counsel, the following points would arise for consideration in this matter: 1.Whether the petitioner has locus standi to file the above writ petition? 2.Whether the writ petition has become infructuous? 3.To what relief, the parties are entitled?

POINT No.1:

21. It has been strenuously argued on behalf of the 7th respondent that the petitioner has no locus standi to file the above writ petition and that this vexatious litigation has been initiated by the petitioner under the garb of probono publico out of political vendatta, not with any public interest but as a publicity stunt litigation, using the court as a platform to achieve his illegal goal, only with a view to harass the 7th respondent, which should not at all be entertained by this Court ,since the petitioner has not approached the Court with clean hands, clean mind and clean objective. The learned counsel for the 7th respondent has cited the following judgments, regarding the care to be exercised by the Courts in dealing with public interest litigations: 1.Judgment of the Apex Court in JANATA DAL vs. H.S.CHOWDHARY AND OTHERS [(1992) 4 SCC 305] 2.A Division Bench judgment of this Court in K.R.SRINIVAS AND ANOTHER vs. R.M.PREMCHAND AND OTHERS [1998(I) CTC 76] 3.A Division Bench judgment of this Court in M.S.RAJENDRAN vs. THE UNION OF INDIA [1998(I) CTC 156] 4.A single Judge's judgment of the Andhra Pradesh High Court in GARLA SUDHAKAR vs. GOVT. OF ANDHRA PRADESH AND OTHERS [AIR 1999 AP 246] 5.A Division Bench judgment of the Andhra Pradesh High Court in Dr.Y.S.RAJASEKARA REDDY AND OTHERS vs. SRI NARA CHANDRABABU NAIDU AND OTHERS [AIR 2000 AP 142] 6.A judgment of the Apex Court in ASHOK KUMAR PANDEY vs. STATE OF W.B. [(2004) 3 SCC 349] and 7. A judgment of the Apex Court in GURPAL SINGH vs. STATE OF PUNJAB AND OTHERS [(2005) 5 SCC 136]

22. There is no dispute regarding the propositions of law laid down in those judgments that the Courts should exercise care while dealing with public interest litigations, without giving room to unleash a private vendetta, personal grouse or some other mala fide object by parties under the garb of public interest litigation and satisfy itself regarding the (a) credentials of the applicant; (b) the prima facie correctness or nature of information given by him and (c) the information being not vague and indefinite and the information should show gravity and seriousness involved, and should not allow the parties to use the Courts as a platform or a stage for taking political advantage at the husting by playing the game of chess in Courts.

23. Admittedly, the petitioner is a Member of Parliament (Lok Sabha) and belong to the opponent party of the 7th respondent. In K.ANBAZHAGAN vs. SUPERINTENDENT OF POLICE AND OTHERS [(2004) 3 SCC 767], under the similar circumstances, in the petitions filed under Section 406 Cr.P.C., seeking transfer of two criminal cases pending against the 7th respondent herein before the XI Additional Sessions Judge, Chennai to a Court of equal and competent jurisdiction in any other State, it has been contended on behalf of the 7th respondent herein before the Apex Court that in view of the provision of sub-section (2) of Section 406 Cr.P.C., the transfer petition is maintainable only when motion is moved by the Attorney General or by the "party interested" and therefore, only the Attorney General or the "party interested" has locus standi to file application and the petitioner, not being a party to the proceedings, is not a "party interested" and has no locus standi to file the present petition. Rejecting the said submission, the Apex Court has held: "The words "party interested" are of a wide import and, therefore, they have to be given a wider meaning. If it was the intendment of the legislature to give restricted meaning then it would have used words to the effect "party to the proceedings". In this behalf the wording of Article 139-A of the Constitution of India may be looked at . Under Article 139-A the transfer can be if "the Supreme Court is satisfied on its own motion or on an application made by the Attorney General of India or by a party to any such case". Also if the provisions of Chapter XXIX of the Criminal Procedure Code are looked at, it is seen that when the legislature intended a "party to the proceedings" to have a right of appeal it specifically so stated. The legislature therefore, keeping in view the larger public interest involved in a criminal justice system, purposely used words of a wider import in Section 406.... The petitioner being a political opponent, is vitally interested in the administration of justice in the State and is a "party interested" within the meaning of sub-section (2) of Section 406 Cr.P.C." It has been further held:

"It has also been urged that the petitioner being a political opponent of Respondent 2, these petitions have been launched against Respondent 2 on ground of political vendetta. This submission also has no force. In a democracy, the political opponents play an important role both inside and outside the House. They are the watchdogs of the Government in power. It will be their effective weapon to counter the misdeeds and mischiefs of the Government in power. They are the mouthpiece to ventilate the grievances of the public at large, if genuinely and unbiasedly projected. In that view of the matter, being a political opponent, the petitioner is a vitally interested party in the running of the Government or in the administration of criminal justice in the State. The petition lodged by such persons cannot be brushed aside on the allegation of a political vendetta, if otherwise, it is genuine and raises a reasonable apprehension of likelihood of bias in the dispensation of criminal justice system.... In the present case, in our view, the petitioner has raised many justifiable and reasonable apprehensions of miscarriage of justice and likelihood of bias, which would require our interference in exercise of our power under Section 406 CrPC. "

24. The above observations made by the Apex Court in the above judgment, would squarely apply to the facts of the present case also and the petitioner, being a Member of Parliament, people's voice in Lok Sabha and political opponent of the 7th respondent, is vitally and definitely interested in the administration of justice in the State and thus is a 'party interested' and thus he has locus standi to file this writ petition as probono publico. Just for the reason that the petitioner belongs to the opposite party of the 7th respondent, it cannot be said that he is trying to settle his political scores, using the Court as a platform, when sufficient and ample material has been placed on record contra.

25. From the above discussion, we hold that the present writ petition has not been filed out of political vendetta or for personal gains or as a publicity interest litigation, as has been argued on the part of the 7th respondent, but only when the official respondents have failed to discharge their official duties, the petitioner, being the Member of the Parliament, has filed this writ petition, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution, as a probono publico. Therefore, this writ petition is well maintainable and it cannot be said that it is either a Publicity Interest Litigation or Personal Interest Litigation. This point is, thus, answered in favour of the petitioner. POINT No.2:

26. It has been contended on behalf of the 7th respondent that since the writ petitioner seeks prosecution under Section 177 IPC on an issue which is alleged to have occurred during the last week of April, 2001 and by now, i.e. after six years, the entire issue has become infructuous and futile since if any prosecution is launched, it is clearly barred by limitation.

27. The learned counsel for the 7th respondent would rely on a Division Bench judgment of the Allahabad High Court in A.C.DATT vs. RAJIV GANDHI AND OTHERS [AIR 1990 ALLAHABAD 38], wherein it has been held that 'challenge to general election after five years is not tenable'.

28. On direction by this Court, the files connected to the issue on hand are produced before this Court wherefrom it is clear that the 7th respondent/Ms.Jayalalithaa had filed her nominations in Krishnagiri Assembly Constitutency in Dharmapuri District on 16.4.2001, in Andipatti Assembly Constituency in Theni District on 18.4.2001, in Bhuvanagiri Assembly Constituency in Cuddalore District on 23.4.2001 and in Pudukkottai Assembly Constituency in Pudukkottai District on 23.4.2001. The Chief Electoral Officer, sent a fax message dated 23.4.2001 to the Deputy Election Commissioner, Election Commission of India, bringing to the notice of the Election Commission the fact of Ms.Jayalalithaa filing nominations from four constituencies and requesting instructions, whether the nominations may be subjected to detailed scrutiny, for which the Election Commission has sent a reply that the nomination papers filed in the third, fourth constituencies, etc. shall not be maintainable in law in view of Section 33(7) of the Representation of the People Act, 1951.

29. From the nomination paper of the 7th respondent submitted in 191-Pudukkottai Assembly Constituency, Part-III, it is seen that the 7th respondent has declared that "I also declare that I have not been and shall not be, nominated as a candidate at the present general election/the bye-elections being held simultaneously, to the Legislative Assembly of Tamil Nadu (State) from more than two Assembly Constituencies."

30. As has already been adverted to supra, the 7th respondent has submitted her nominations in Bhuvanagiri and Pudukkottai Assembly Constituencies on 23.4.2001, much after her filing nominations in Krishnagiri Assembly Constitutency in Dharmapuri District on 16.4.2001, in Andipatti Assembly Constituency in Theni District on 18.4.2001. Therefore, it is clear that by the time she filed nomination papers on 23.4.2001 in Bhuvanagiri and Pudukkottai Assembly Constituencies, she has already submitted her nominations in Krishnagiri and Andipatti Assembly Constituencies. Therefore, the declaration offered by the 7th respondent in Part-III of her nomination papers in Bhuvanagiri and Pudukottai, that she has not been nominated from more than two Assembly Constituencies, is false to her own knowledge and amounts to violation of Section 33(7)(b) of the Representation of Peoples Act, falling within the penal provision of Section 125-A(ii) of the Representation of the People Act, 1951 and Section 177 IPC.

31. The nominations were scrutinised on 24.4.2001. It is seen from the proceedings of the respondents 3 and 4 that on filing of nominations, the 7th respondent has produced the copies of the certificates for having taken oath before the returning officer, Krishnagiri on 16.4.2001 and Returning Officer Andipatti on 18.4.2001. Since the respondents 3 and 4 have found that the nominations are not as per the requirement of Section 33(7)(b) of Representation of the People Act, 1951 and further observing that it is a prima facie case of rejection under Section 36(2)(b) for non-compliance of conditions of Section 33, have rejected the nominations of the 7th respondent.

32. It is not disputed that the 7th respondent has filed two more nominations after filing nominations in Krishnagiri and Andipatti. It is a facta probantia (the facts by means of which they are proved i.e. Particulars or evidence). An argument has been advanced on the part of the 7th respondent that she has not taken oath in more than two constituencies and therefore, no prosecution could be launched against her. Section 177 IPC deals with 'furnishing false information to a public servant'. When the factum of furnishing of false information is clear from the nomination papers, the stand of the 7th respondent that she has not taken oath in more than two constituencies and hence she cannot be prosecuted, cannot be appreciated.

33. The 7th respondent/Ms.Jayalalithaa has contended that Sections 125 to 136 of the Representation of the People Act, 1950 do not indicate any alleged infraction of Section 33(7)(b) as an offence. Section 125-A of the Representation of the People Act, 1951 reads as follows: "125-A: Penalty for filing false affidavit, etc. - A candidate who himself or through his proposer, with intent to be elected in an election - (i)fails to furnish information relating to sub-section (1) of Section 33-A; or (ii)gives false information which he knows or has reason to believe to be false; or (iii)conceals any information,

in his nomination paper delivered under sub-section (1) of Section 33 or in his affidavit which is required to be delivered under sub-section (2) of section 33-A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both." Thus, since it is a clear case of furnishing false information before a public servant by the 7th respondent, it squarely falls under Section 125-A(ii) of the Representation of the People Act, 1951 and definitely an 'electoral offence' and therefore, the stand of the 7th respondent that Section 33(7)(b) of the Representation of the People Act is not an offence, cannot be appreciated.

34. Regarding limitation to take cognizance of the offence, the 7th respondent would submit that since the offence under Section 177 IPC contemplates punishment for a period of six months or with fine which may extend to rupees thousand, there is a clear bar as per Section 468(2)(c) of the Cr.P.C. and that as per Section 195 Cr.P.C., even such a prosecution could be preferred only by the said Public Authority. It is to be pointed out that Section 473 of the Cr.P.C. saves the limitation that any Court may make cognizance of an offence after the expiry of the period of limitation, if it satisfied on the facts and in the circumstances of the case, the delay has been properly explained or that it is necessary so to do in the interests of justice.

35. In SUKHDEV RAJ vs. STATE OF PUNJAB [1994 SCC (Cri) 1480], cited by the learned senior counsel for the petitioner, the appellant therein was convicted under Section 9 of the Opium Act and sentenced to three years RI and to pay a fine of Rs.5,000/= for being found in possession of 23 kgs. of opium and in the appeal before the High Court, the only question raised was that though occurrence took place on 31.5.1974, challan was filed on 29.8.1977 and therefore, no cognizance could have been taken in view of Section 468 Cr.P.C. and the Apex Court has held that 'Court can condone delay and take cognizance if delay had been properly explained or it is necessary to do so in the interest of justice.'

36. In RAKESH KUMAR JAIN vs. STATE THROUGH CBI, NEW DELHI [(2000) 7 SCC 656], cited by the learned senior counsel for the petitioner, a criminal complaint was filed against the petitioner therein under Section 5(4) r/w.Sections 5(2) and (3) of the Official Secrets Act in the Court of Chief Metropolitan Magistrate, Delhi by the Union of India through Deputy Superintendent of Police, Central Bureau of Investigation, SPE, Anti-Corruption Unit, New Delhi, apparently beyond 25 days of the period of limitation prescribed and therefore, the petitioner therein had filed an application under Section 245 Cr.P.C. in the trial Court for being discharged, on the ground, inter alia, that the complaint was barred by limitation. In such circumstances, the Apex Court has held: "Mere expiry of limitation period would not entitle the accused to be discharged as complainant has right to seek extension of time under Section 473 by explaining the cause of delay and condonation of delay plea can be entertained and decided by the appellate Court where matter pending and need not be remanded to the trial Magistrate for this purpose."

37. Thus, it is clear that the Court has got power to condone the delay and take cognizance if delay had been properly explained or it is necessary to do so in the interest of justice. However, we refrain ourselves to enter into the discussion whether the petitioner has given satisfactory reasons regarding the limitation and give any finding with regard to the question of limitation raised by the 7th respondent since it is a matter squarely to be decided by the trial Court and the parties are free to raise their contentions before the concerned Court when the steps are taken for condoning the delay and it is for the Court concerned to go into the said aspect of limitation.

38. Therefore, for all the discussions held, it is to be held that the writ petition has not become infructuous, since even though the term of office of the 7th respondent as M.L.A. in the elections conducted in the year 2001 had come to an end, the criminality committed while filing two more nominations before respondents 3 and 4 is not erased, which has to be probed into by initiating prosecution against her and hence the judgment cited on behalf of the 7th respondent in A.C.DATT vs.RAJIV GANDHI AND OTHERS (AIR 1990 ALLAHABAD 38) cannot be applied to the facts of the case on hand. This point is answered accordingly. POINT No.3:

39. The 7th respondent has filed her 3rd and 4th nominations before the respondents 3 and 4 on 23.4.2001. Immediately, the petitioner and his partymen have complained to the Election Commission. The Chief Electoral Officer, sent a fax message dated 23.4.2001 to the Deputy Election Commissioner, Election Commission of India, bringing to the notice of the Election Commission the fact of the 7th respondent filing nominations from four constituencies and requesting instructions, whether the nominations may be subjected to detailed scrutiny, for which the Election Commission has sent a reply that the nomination papers filed in the third, fourth constituencies, etc. shall not be maintainable in law in view of Section 33(7) of the Representation of the People Act, 1951.

40. The nominations were scrutinised on 24.4.2001 and the nominations of the 7th respondents were rejected by the respondents 3 and 4 as being in contravention of Section 33(7)(b) of the Representation of the People Act. From then onwards, it is submitted on behalf of the petitioner, that many complaints were sent by the petitioner and others to the Election Commission to initiate action against the 7th respondent for filing false declaration before the Returning Officers, with no reply from the authorities.

41. It is to be mentioned that even before scrutiny of the nomination papers of the 7th respondent, objections were filed on behalf of the petitioner's party on many grounds, including the one for filing nominations at four assembly constituencies. It is noteworthy to mention, as could be seen from the files submitted before this Court, that the 4th respondent, after scrutiny, found that the 7th respondent has violated Rule 33(7) of the Representation of the People Act, by filing nominations at four assembly constituencies and that her candidature is not in accordance with the provisions of Section 33 of the Representation of Peoples Act, by his order in Rc.A5/2720/2001, dated 24.4.2001. The petitioner has sent a letter on 24.5.2001, to take criminal action against Jayalalithaa for filing false affidavit and since the same has not evoked any response, he sent a reminder on 24.9.2001.

42. Thereafter, the Election Commission of India, by their letter dated 11.10.2001 addressed to the petitioner has informed him that the Election Commission has conveyed to the Chief Electoral Officer, Tamil Nadu, the desire of the Commission that the respondents 3 and 4 herein should examine the matter, for appropriate action in the light of the nomination papers and other connected documents filed by or on behalf of Ms.J.Jayalalitha and the Commission's clarification given in this regard with reference to the relevant provisions of Section 177 of the Indian Penal Code and Section 195 of the Criminal Procedure Code.

43. It can also be seen from the said letter of the Election Commission of India and even from their counter affidavit filed in this matter, that the Election Commission has clarified to the Chief Electoral Officer, Tamil Nadu, that if Ms.Jayalithaa had filed four nomination papers and had given declarations that she had not been or would not be nominated as a candidate at the said general elections from more than two constituencies, she would, prima facie, appear to have violated the provisions of Section 33(7)(b) of the Representation of the People Act, 1951 and made false declaration before the Returning Officers of 66-Bhuvanagiri and 191-Pudukkottai Assembly Constituencies, where she is alleged to have filed her nomination papers for the third and fourth constituencies further drawing the attention of the Chief Electoral Officer to Section 177 IPC and Section 195 of the Cr.P.C. Pursuant to the said letter of the Election Commission, enclosing a copy of the same, the petitioner has addressed letters to the respondents 3 and 4 on 5.11.2001 followed by reminders on 22.1.2002.

44. When the Election Commission of India and the respondents 3 and 4 have clearly observed that the 7th respondent has violated Rule 33(7)(b) of the Representation of the People Act, in all fairness, they should have taken action against the 7th respondent, since it cannot be termed as a bona fide mistake or anything of that sort, but a flagrant violation of the mandatory provision of the law. In KRISHNA MOHINI vs. MOHINDER NATH SOFAT [(2000) 1 SCC 145], the Apex Court has held that a 'person is nominated as a candidate when his nomination paper is presented to the Returning Officer'. This Court is at a loss to understand the silence of the respondents 3 and 4 in exercising their powers, which appears to be wanton. The elections were held on 10.5.2001 and the guard of the State has changed, the 7th respondent being sworn-in as the Chief Minister of the State. Thus, she became the administrative boss of the respondents 3 and 4 and a piquant situation has arisen that a subordinate has to decide the allegations made against his boss, which might have deterred them from taking any action against the 7th respondent under law, for filing false declarations, which appears to be knowingly also.

45. If the 7th respondent wanted to act bona fide, she should have furnished the said information in the Declaration itself and therefore, reasoning of the respondents 3 and 4 that since the 7th respondent or her proposer has furnished the declarations made by the 7th respondent in the first and second constituencies to the Returning Officers, there was no suppression of fact and hence no action was called for, cannot be appreciated since production of the earlier declarations at the time of scrutiny does not erase the illegality or the criminality or the violation of the provisions of law, committed by the 7th respondent, which appears to be knowingly also.

46. As has already been stated the respondents 3 and 4 might have been too loyal to the 7th respondent, whose party, at the relevant time of the respondents 3 and 4 submitting their reports on 10.11.2001 and 14.12.2001, was ruling the State, of which the 7th respondent is a General Secretary, by even circumventing the law and ignoring the fact that they have to be loyal only to the Law of the land and they have to uphold the majesty of law and justice. The discretion conferred on the respondents 3 and 4, cannot be used to bow-down the law or allowed to be taken a ride by anybody. In the strong opinion of this Court, the respondents, including the Election Commission of India, have not acted in the manner required by law. This Court is able to find delay at each and every stage of the consideration of the representations of the petitioner and others as against the 7th respondent. When the respondents have failed to discharge their official duties, the petitioner, has got every right to invoke the jurisdiction of this Court under Article 226 of the Constitution of India, for a Writ of Mandamus, which he has exercised properly.

47. The learned counsel for the 7th respondent, relying on the judgment of the Apex Court in RAJIV RANJAN SINGH 'LALAN' (VIII) AND ANOTHER vs. UNION OF INDIA AND OTHERS [(2006) 6 SCC 613] would submit that a Public Interest Litigation on criminal matters is not considered to be maintainable. In the above said case, when a criminal trial was in progress against the respondents 4 and 5 therein viz. Lalu Prasad Yadav and Rabri Devi, two persons, claiming to be the M.Ps., have filed writ petitions, as if public interest litigations, alleging that consequent upon the change of the Government in the Centre, attempts had been made to delay and interfere with the judicial process who are politically inimical towards the respondents 4 and 5 therein. In such circumstances, the Apex Court has observed that: "Both the petitioners are not in any way connected with this case. They are not de facto complainants in this case. They are absolutely strangers as regards the criminal cases against Respondents 4 and 5 which were pending before the Special Judge. It is for the prosecution to prove its case and Respondents 4 and 5 to deny that the allegations are not true and they did not have the disproportionate income as alleged by the prosecution. It is a criminal litigation exclusively between respondents 4 and 5 and the State. It is also important to note that in a case of this nature nobody else has got any right to interfere especially by way of public interest litigation or else such public interest litigation would only hamper the course of justice and may cause prejudice to the accused by denying them a fair trial. This unnecessary interference in the criminal case may cause, sometimes, damage to the prosecution case also. In any view of the matter, this sort of interference in the criminal prosecution would only deny a fair trial to the accused.... It is equally important to note that though the petitioners have alleged a series of irregularities, they are not supported by basic facts having solid foundation."

48. But, in the case on hand, the petitioner seeks a direction to the respondents, for the apparent violation of mandatory provisions of law committed by the 7th respondent, to initiate action against her, which cannot, in no way, be equated with the interference of a stranger in the criminal trial, as is the case in the above case before the Apex Court. On the other hand, the petitioner, by way of filing this writ petition, is able to prove, as has been discussed supra, that in spite of voluminous material available to prove the guilt of the 7th respondent, the respondents have not exercised their power to initiate action against her. Therefore, the principle laid down by the Apex Court in the above case, cannot be applied to the facts of the present case.

49. The persons holding high offices/positions should be role models to the general public and if they venture to commit flagrant violations of the rules and laws made, that too knowingly, as in this case, it should not be taken lightly, sending wrong signals to the public that laws are meant only for the general public and not for the bigwigs, who can go scot-free. For all the above discussions, we hold that prima facie there are sufficient materials on record to initiate action against the 7th respondent for filing false declarations before the electoral authorities. Therefore, this writ petition is allowed, directing the respondents 1 to 4 to initiate action against the 7th respondent in accordance with law within a period of six weeks from the date of receipt of this order. No costs. Consequently, W.P.M.P.No.17487 of 2002 is closed. Rao

To

1.Chief Election Commissioner,

Election Commission of India,

Nirvachan Sadan,

Ashok Road,

New Delhi-110001.

2.Chief Electoral Officer,

Tamil Nadu.

3.The Returning Officer,

Bhuvanagiri Assembly Constituency,

Bhuvanagiri.

4.The Returning Officer,

Pudukkottai Assembly Constituency,

Pudukkottai.

5.The Returning Officer,

Antipatti Assembly Constituency,

Antipatti.

6.The Returning Officer,

Dharmapuri Assembly Constituency,

Dharmapuri.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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