K. Karunakaran, Member of Parliament (Rajya Sabha) Vs Nawab Rajendran and Another

@JUDGMENTTAG-ORDER

P. Shanmugam, J.@mdashThis is a petition presented u/s 482 of the Code of Criminal Procedure invoking the extraordinary jurisdiction of this Court to call for and to quash the records in C.C. No. 35 of 1997 on the file of the Judicial First Class Magistrate of Thrissur and other connected proceedings in that case.

2. The complainant, the 1st respondent herein had preferred a complaint before the Judicial 1st Class Magistrate, Thrissur for an offence u/s 31 of the Representation of the People Act, 1950 and Section 109 read with Section 120-B of the Indian Penal Code. The complainant is said to have acted in the interest of public at large and without any personal interest as a citizen of India,

3. The sum and substance of the complaint has set out in Annexure-B, is as follows : In the Kerala State electoral rolls prepared for the Thrissur Assembly Constituency, 1995, the petitioner herein as accused No. 1 conspired with accused Mos. 2 to 4 and made a false declaration to the effect that the petitioner herein is ordinarily residing at Murali Mandiram, House No. 120, Ward No. 31, Thrissur Municipality: In consequence of the said declaration petitioner herein was included as a voter in the electoral roll as serial No. 413. Thereafter he exercised his franchise in the Lok-Sabha and Assembly elections held on 27-4-1996. According to the complainant, the petitioner had shifted his residence from Thrissur to Trivandrum in the year 1971. Thereafter he visited Thrissur occasionally for performing certain religious functions. While so, by virtue of the declaration made by the 4th accused he was enrolled as a member in the voters list. The cpmplainant proceeds to state that the 2nd accused, K.V. Menon had derived pecuniary benefits and facilities from the petitioner herein and the 4th respondent had acted to declare the name of the petitioner in the voters list because of the conspiracy committed by the 2nd accused and the petitioner.

4. The complaint filed on 3-7-1996 was taken on file and after having been satisfied that there are sufficient grounds to proceed against accused Nos. 1 and 4 the Magistrate issued summons to accused No. 1. The above Cri. M.C. is filed to quash the proceedings in reference to the above C.C. and the further proceedings.

5. Learned Senior Counsel, Mr. M.N. Sukumaran Nayar, appearing on behalf of the petitioner submitted that the uncontroverted allegations contained in the complaint do not prima facie establish the offence. According to him, the complaint was made with an oblique purpose and in abuse of the process of Court.

6. In support of his submission he set out the background of the case as follows: the petitioner was elected as a member of Kerala State Legislative Assembly in the year 1965 from Thrissur Constituency. From then he continued to function and consecutively as a Member of the Legislature, Minister, Chief Minister for two terms and Leader of Opposition for another term until he was elected as a Member of Rajya Sabha in April, 1995. The petitioner was a permanent resident of Murali Mandiram, a residential house registered in the name of his wife and located .within the limits of Thrissur Assembly Constituency. He admits that from September, 1971 onwards, after he became the Minister for Home Affairs in the State Cabinet, he shifted his residence to Trivandrum. He continued to live and reside at Trivandrum as Chief Minister of the State Cabinet and Leader of the opposition thereafter and again Chief Minister of State Cabinet until he was elected as a Member of the Rajya Sabha in the year 1995. It is further stated that petitioner is a voter in the Thrissur Assembly Constituency as a person ordinarily residing at Murali Mandiram within the limits of the above Constituency. He continued to be a voter in the above Constituency without, any break or interruption and as per the latest electoral roll published by the State Election Commission. According to learned senior counsel for the petitioner, after his registration as an elector in the electoral roll he continued to be a person ordinarily residing in Thrissur Assembly and he never ceased to be a voter. His case is that he had not instructed anybody to give a declaration to the effect that he is an ordinarily resident of Murali Mandiram for which there is no necessity and assuming for the sake of argument such a declaration had been made, the said declaration cannot be false since he is not aperson ''ordinarily resident'' in the Thrissur Assembly Constituency.

7. It is further contended on behalf of the petitioner that there is absolutely no allegation against conspiracy between the petitioner and the 4th accused who is said to have made such a declaration. Therefore, according to him, no Offence has been made out and the Court below had committed a serious error in taking cognizance of the offence as alleged. He prayed that in order to prevent the abuse of the process of Court and also to secure the ends of justice, the C.C. and further proceedings are liable to be quashed by this Court invoking the extraordi nary jurisdiction u/s 482, Cri. P. C.

8. In reply to the arguments the 1st respondent who appeared as a party in person submitted that in the very first sentence of the complaint itself he had stated that the petitioner as accused No. 1 committed criminal conspiracy with accused 2''to 4 and caused a false statement to be given consequent of which he was included as a voter in the electoral roll. He also submits that the petitioner is not entitled to take advantage of the deeming provision of Sub-section (1B) of Section 20 in the absence of a declaration under Sub section (4) of Section 20 of the Representation of the People Act. According to him, the President has issued a notification setting out various offices who were entitled to the benefits of the deeming provision of ''ordinary resident'' and since a Member of Parliament is not found to be listed as one among them he is not entitled to the benefit of this provision.

9. He also referred to the mandatory requirement of furnishing information for the purpose of preparing the rolls Under Rule 8 of the Registration of Electors Rules, 1960. By virtue of this requirement the 4th accused has furnished the name of the petitioner and made a declaration to the effect that the petitioner is an ordinary resident of Murali Mandiram. According to him, only at the instance of the 1st accused such a declaration had been made and he has abetted the offence of false declaration. He further submits that the Magistrate had issued summons after going through the complaint, sworn statement and the evidence adduced and satisfying himself that there are sufficient grounds to proceeding against the petitioner and the 4th accused.

10. The 1st respondent referred to the Supreme Court decision in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, and submitted that the Magistrate is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused, and the High Court cannot interfere with the order of the Magistrate by examining the merits of the case. He also referred to the decision in Jacob Harold Aranha and Another Vs. Mrs. Vera Aranha and Another, wherein the Bombay High Court held that it is well settled that the inherent powers of the High Court u/s 482 of the Cri. P.C. should be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities.

11. I have heard counsel on both sides and considered the case carefully. The parameters under which inherent powers of the High Court u/s 482 of the Crl. P.C. can be invoked have been clearly laid down in State of Haryana and others Vs. Ch. Bhajan Lal and others, . The first category of case by way of illustration wherein the power to be exercised either tp prevent (he abuse of the process of any Court or otherwise to secure the ends of justice is as follows (Para 108):

Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

In Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, the Supreme Court set out the legal position on the principle to be applied as follows (Para 7):

The legal position is well settled that when prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and wherein the opinion of the Court chances of an ultimate conviction are bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be a preliminary stage." (emphasis added).

Applying these cardinal principles I find the following uncontroverted facts have emerged in the case on hand:

(i) Petitioner is "an ordinary resident" of Mirali Mandiram, Thrissur from the year 1960;

(ii) Petitioner did not instruct or, request the 4th accused to include his name in the electoral card with a declaration contained thereunder;

(iii) Assuming for the sake of argument that the 4th accused has given such a declaration, the statement cannot be held to be a false declaration;

(iv) No particulars of conspiracy is set out in the complaint between the petitioner and the 4th accused who had made the declaration;

(v) A Member of Parliament is deemed to be an "ordinary resident" even if he is absent from that Constituency by virtue of Sub-section (1B) of Section 20;

(vi) Petitioner did not file any declaration and there is no need for a declaration for being included in the voters list since he was already ,a voter in the Constituency.

12. The complaint of the 1st respondent does not make out an offence u/s 31 of the R.P. Act which requires a, statemient or a declaration in writing which is false and which he either knows or believes to be false in connection with the preparation, revision or correction of an electoral roll. The declaration is said to have been made by the 4th accused. The petitioner has on need to make such a declaration since he is already a voter and he is a Member of Parliament. There is no allegation any where in the complaint to the effect that the 4th accused had made the declaration about the residence of the petitioner at his instance. Except as a statement of narration in the first sentence is the complaint that accused No. 1 committed criminal conspiracy with accused Nos. 2 and 4, no details of the alleged conspiracy connecting the petitioner with the 4th accused have been set out.

13. Sub-section (4) of Section 20 of the R.P. Act provides for listing of offices who shall be deemed and treated to be "ordinarily resident" in spite of their absence. There is a separate and specific provision treating legislators as ''ordinary resident''. They shall not be ceased to be ''ordinary resident'' by virtue of their absence. In view of this specific provision there is no need for making a declaration to the effect that he is an ordinarily resident even assuming that the 4th accused had made a declaration that cannot be construed as a false declaration. Besides in the complaint there is no case that the petitioner had instructed or conspired with the 4th accused to make such a declaration.

14. In the above circumstances taking into account the uncontroverted allegations as such the complaint does not make out even a prima facie case to establish the offences alleged. In the light of the deeming provisions and no necessity of a declaration, I am of the view that there is no chance of conviction and no useful purpose will be served by allowing the criminal prosecution to continue.

15. In the case cited by the 1st respondent in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, the Supreme Court held that the High Court was in error in interfering with the order of the Magistrate by examining the merits of the case after taking into consideration the documents filed by the respondents. In this case the High Court is not called upon to examine the merits of the case and taking into account the documents filed by the respondents. As a matter of fact the 1st respondent has filed a Cri. M.P. No. 1801 of 1997 for permission to produce the documents. After having filed the same, the 1st respondent submitted at the time of hearing that he is not pressing the Cri. M.P. when the petitioner sought time to peruse the same and file his counter. Accordingly the Cri. M.P. was dismissed. Therefore, the Court took into account only the uncontroverted allegations contained in the complaint.

16. As rightly held in Jacob Harold Aranha and Another Vs. Mrs. Vera Aranha and Another, the High Court can interfere to correct patent illegations. Taking into account all these facts and circumstances of the case and the points raised I find that the complaint -- Annexure-B and the order (Annexure-C) and the records in C.C. No. 35 of 1997 on the file of the Judicial FirstClass Magistrate, Thrissur, are liable to be quashed. Accordingly they are quashed. The Cri. M.C. is allowed.