AFR

Court No. - 87

Case :- MATTERS UNDER ARTICLE 227 No. - 723 of 2022

Petitioner :- Khurshidurehman S. Rehman

Respondent :- State Of U P And Another

Counsel for Petitioner :- Jai Prakash Prasad

Counsel for Respondent :- G.A.

Hon'ble Dinesh Pathak,J.

1. Heard Sri Jai Prakash Prasad, learned counsel for the petitioner, Sri

Manish Goyal, Senior Advocate (Additional Advocate General) assisted

by Sri AK Sand, Advocate appearing for the State and perused the record.

2. In view of the peculiar facts and circumstances of the present case, this

Court proceeds to decide the present matter finally at admission stage

itself without calling for the respective affidavits of the parties with the

consent of the counsel concerned.

3. The petitioner has invoked the supervisory jurisdiction of this Court

under Article 227 of the Constitution of India challenging the order passed

by the trial court as well as the revisional court rejecting an application

filed under Section 156 (3) CrPC.

4. The facts culled out from the pleadings of the petitioner are that the

present petitioner has moved an application under Section 156 (3) CrPC

with an allegation that Bhartiya Janta Party headed by the respondent No.

2 (opposite party No. 1 in the original application) had wooed the voters

with several promises but failed to fulfil the promises as made in the

Election Manifesto-2014, which was promulgated by Bhartiya Janta Party

in the parliamentary election conducted in the year 2014. Therefore, he

has committed crime of fraud, cheating, criminal breach of trust,

dishonesty, defamation, deceiving and falls allurement. The aforesaid

application was rejected by the trial court (Additional Chief Judicial

Magistrate, Aligarh) vide its order dated 1.10.2020. Feeling aggrieved

Neutral,Citation,No1,0,5O55)AHC)34g6O

and dissatisfied with the order passed by the trial court, the applicant

(petitioner herein) has preferred a revision dated 12.10.2020 being

criminal revision No. 141 of 2020. Aforesaid revision was dismissed

affirming the order passed by the trial court.

5. It is submitted by the learned counsel for the petitioner that both the

courts below have illegally rejected an application under Section 156 (3)

CrPC without applying their mind and without properly appreciating the

allegations made against the respondent No. 2 and the document on

record. Non fulfilment of promises as made in the Election Manifesto-

2014 makes out a clear cut criminal case against the respondent No. 2,

who is liable to be summoned and tried under different sections of IPC.

Learned counsel for the petitioner submitted that in a similar matter

Hon'ble Supreme Court has issued notices to the other side in Writ

Petition (Civil) No. (s). 688/2019, which is still pending for consideration.

Fact regarding pendency of the aforesaid matter was brought to the

knowledge of the revisional court through paragraph No. 5 of the memo

of the revision but the same has not been considered by the revisional

court while deciding the revision on merits.

6. Per contra, learned senior counsel has contended that on the face of an

application, no cognizable offence is made out against the respondent No.

2 to be tried by the court below. It is further contended that non-fulfilling

promise, if any, as averred in the Election Manifesto-2014 does not make

out any cognizable offence against the persons who have promulgated the

election manifesto. It has further been contended that non-fulfilling the

conditions as averred in the election manifesto does not come within the

ambit of any law, and therefore, it cannot be enforced under any

legislation. Trial court as well as revisional court has rightly rejected an

application after going through the contents of the application and

evidence adduced on behalf of the petitioner. In support of his contention,

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learned senior advocate has cited the case of Vivek Kumar Mishra Vs.

Union of India Cabinet Secretary and others reported in 2019 SCC

OnLine All 5139, Mithlesh Kumar Pandey Vs. Election Commission

of India and others reported in 2014 SCC Online Del 4771, V.P.

Ammavasai Vs. Chief Election Commissioner, Election Commissioner

of India and others reported in 2019 SCC OnLine Mad 5623 and

Prof. Ramchandra G. Kapse Vs. Haribanshramakbal Singh reported

in (1991) 1 Supreme Court Cases 206.

7. Carefully considered the rival submission advanced by the learned

counsel for the parties and perused the record on board.

8. The present petitioner has invoked the authority of Magistrate by

moving an application under Section 156 (3) CrPC which authorises

Magistrate empowered under Section 190 of the CrPC to pass an order for

investigation into any cognizable offence by an officer in charge of a

police station. Section 156 comes within Chapter XII captioned as

‘Information to the police and their power to investigate’. Under sub-

section (1) of Section 156, the power of a police officer to investigate a

cognizable case, which a court with jurisdiction over the local area within

the limits of such station would have power to enquire into or try under

Chapter XIII, is untrammelled in the sense that it does not require an order

of Magistrate. Issuing any direction to investigate the matter under

Section 156 (3) CrPC is a pre-cognizance stage, that too, in matters where

a case of cognizable offence is made out by the applicant. Invoking the

power of Magistrate under Section 156 (3) in a casual manner, without

producing sufficient details and material for commission of cognizable

offence, is not justifiable in the eye of law. Magistrate, before whom an

application has been moved for issuing a direction for investigation under

under Section 156 (3) CrPC, is only required to examine the matter and to

apply his judicious mind to reach a, prima facie, conclusion as to whether

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the case for investigation is made out, for commission of cognizable

offence, or not.

9. In the matter in hand, alleged betrayal of promises as made in Election

Manifesto-2014 has been tried to be shown as cognizable offence and the

learned Magistrate has been expected to issue a direction for investigation

qua said commission of cognizable offences.

10. Before discussing the merits of the application under Section 156 (3)

CrPC moved by the present petitioner, the scope of Section 156 (3) is

required to be considered. Dealing with the scope of Section 156 (3)

CrPC, Hon’ble Supreme Court in the matter of Anil Kumar and others

Vs. MK Aiyappa and others, reported in (2013) 10 Supreme Court

Cases 705, has expounded in paragraph 11 that the application of mind by

the Magistrate should be reflected in the order passed under Section 156

(3) CrPC, which is quoted below:

“11. The scope of Section 156(3) CrPC came up for consideration before

this Court in several cases. This Court in Maksud Saiyed case (2008) 2

SCC (Cri) 692 examined the requirement of the application of mind by

the Magistrate before exercising jurisdiction under Section 156(3) and

held that where jurisdiction is exercised on a complaint filed in terms of

Section 156(3) or Section 200 CrPC, the Magistrate is required to apply

his mind, in such a case, the Special Judge/Magistrate cannot refer the

matter under Section 156(3) against a public servant without a valid

sanction order. The application of mind by the Magistrate should be

reflected in the order. The mere statement that he has gone through the

complaint, documents and heard the complainant, as such, as reflected

in the order, will not be sufficient. After going through the complaint,

documents and hearing the complainant, what weighed with the

Magistrate to order investigation under Section 156(3) CrPC, should be

reflected in the order, though a detailed expression of his views is neither

required nor warranted. We have already extracted the order passed by

the learned Special Judge which, in our view, has stated no reasons for

ordering investigation.”

11. In the case of Priyanka Srivastava and another Vs. State of Uttar

Pradesh and others, reported in (2015) 6 Supreme Court Cases 287,

Hon’ble Supreme Court has considered several decisions of the Apex

Court and concluded that a principled and really grieved citizen with

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clean hands must have free access to invoke the powers under Section

156(3) CrPC. It is not the police taking steps at the stage of Section 154

CrPC. For ready reference, the relevant paragraphs of the said judgment

is quoted hereinbelow:

“21. Dealing with the nature of power exercised by the Magistrate

under Section 156(3) of the CrPC, a three-Judge Bench in

Devarapalli Lakshminarayana Reddy and others v. V. Narayana

Reddy and others[2], had to express thus: (SCC p. 258, para 17)

"17. ….It may be noted further that an order made

under sub-section (3) of Section 156, is in the nature of

a peremptory reminder or intimation to the police to

exercise their plenary powers of investigation under

Section 156(1). Such an investigation embraces the

entire continuous process which begins with the

collection of evidence under Section 156 and ends with

a report or chargesheet under Section 173."

23. In Dilawar Singh v. State of Delhi, this Court ruled thus: (SCC p.

647, para 18)

"18. ...11. The clear position therefore is that any

Judicial Magistrate, before taking cognizance of the

offence, can order investigation under Section 156(3) of

the Code. If he does so, he is not to examine the

complainant on oath because he was not taking

cognizance of any offence therein. For the purpose of

enabling the police to start investigation it is open to the

Magistrate to direct the police to register an FIR. There

is nothing illegal in doing so. After all registration of an

FIR involves only the process of entering the substance

of the information relating to the commission of the

cognizable offence in a book kept by the officer in

charge of the police station as indicated in Section 154

of the Code. Even if a Magistrate does not say in so

many words while directing investigation under Section

156(3) of the Code that an FIR should be registered, it is

the duty of the officer in charge of the police station to

register the FIR regarding the cognizable offence

disclosed by the complainant because that police officer

could take further steps contemplated in Chapter XII of

the Code only thereafter."

24. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd.[5], the

Court while dealing with the power of Magistrate taking cognizance

of the offences, has opined that having considered the complaint, the

Magistrate may consider it appropriate to send the complaint to the

police for investigation under Section 156(3) of the Code of Criminal

Procedure. And again: (Madhao v. State of Maharashtra, [(2013) 5

SCC 615], SCC pp. 620-21, para 18)

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"When a Magistrate receives a complaint he is not bound

to take cognizance if the facts alleged in the complaint

disclose the commission of an offence. The Magistrate has

discretion in the matter. If on a reading of the complaint,

he finds that the allegations therein disclose a cognizable

offence and the forwarding of the complaint to the police

for investigation under Section 156(3) will be conducive

to justice and save the valuable time of the Magistrate

from being wasted in enquiring into a matter which was

primarily the duty of the police to investigate, he will be

justified in adopting that course as an alternative to

taking cognizance of the offence itself. As said earlier, in

the case of a complaint regarding the commission of

cognizable offence, the power under Section 156(3) can

be invoked by the Magistrate before he takes cognizance

of the offence under Section 190(1)(a). However, if he

once takes such cognizance and embarks upon the

procedure embodied in Chapter XV, he is not competent to

revert back to the pre-cognizance stage and avail of

Section 156(3)."

25. Recently, in Ramdev Food Products Private Limited v. State of

Gujarat, while dealing with the exercise of power under Section

156(3) CrPC by the learned Magistrate, a three-Judge Bench has held

that: (SCC p. 456, para 22)

"22.1. The direction under Section 156(3) is to

be issued, only after application of mind by the

Magistrate. When the Magistrate does not take

cognizance and does not find it necessary to postpone

instance of process and finds a case made out to

proceed forthwith, direction under the said provision is

issued. In other words, where on account of credibility

of information available, or weighing the interest of

justice it is considered appropriate to straightaway

direct investigation, such a direction is issued.

22.2. The cases where Magistrate takes

cognizance and postpones issuance of process are cases

where the Magistrate has yet to determine "existence of

sufficient ground to proceed."

27. Regard being had to the aforesaid enunciation of law, it needs to

be reiterated that the learned Magistrate has to remain vigilant with

regard to the allegations made and the nature of allegations and not to

issue directions without proper application of mind. He has also to

bear in mind that sending the matter would be conducive to justice

and then he may pass the requisite order. The present is a case where

the accused persons are serving in high positions in the bank. We are

absolutely conscious that the position does not matter, for nobody is

above law. But, the learned Magistrate should take note of the

allegations in entirety, the date of incident and whether any

cognizable case is remotely made out. It is also to be noted that when

a borrower of the financial institution covered under the SARFAESI

Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also

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there is a separate procedure under the Recovery of Debts due to

Banks and Financial Institutions Act, 1993, an attitude of more care,

caution and circumspection has to be adhered to.

29. At this stage it is seemly to state that power under Section 156(3)

warrants application of judicial mind. A court of law is involved. It is

not the police taking steps at the stage of Section 154 of the code. A

litigant at his own whim cannot invoke the authority of the Magistrate.

A principled and really grieved citizen with clean hands must have

free access to invoke the said power. It protects the citizens but when

pervert litigations takes this route to harass their fellow citizens,

efforts are to be made to scuttle and curb the same."

12. Full Bench of this Court, in the matter of Jagannath Verma Vs. State

of UP and another [2014(8) ADJ 439 (FB)] has expounded, after

considering the judgment passed by Constitutional Bench of Supreme

Court in Lalita Kumari Vs. Government of Uttar Pradesh, (2014) 2 SCC

1, that though the registration of an FIR on the receipt of information

relating to the commission of cognizable offence is mandatory, yet there

may be instance where a preliminary enquiry is required. The relevant

paragraph No. 13 of the judgment in Jagannath Verma (supra) is

reproduced hereinbelow:

“The decision of the Constitution Bench in Lalita Kumari holds that

though the registration of an FIR on receipt of information relating to

the commission of a cognizable offence is mandatory, yet there may be

instances where a preliminary enquiry is required. In that context, the

observation of the Supreme Court are as follows:

"120.1. The registration of FIR is mandatory under Section

154 of the Code, if the information discloses commission of

a cognizable offence and no preliminary inquiry is

permissible in such a situation.

120.2. If the information received does not disclose a

cognizable offence but indicates the necessity for an

inquiry, a preliminary inquiry may be conducted only to

ascertain whether cognizable offence is disclosed or not.

120.3. If the inquiry discloses the commission of a

cognizable offence, the FIR must be registered. In cases

where preliminary inquiry ends in closing the complaint, a

copy of the entry of such closure must be supplied to the

first informant forthwith and not later than one week. It

must disclose reasons in brief for closing the complaint

and not proceeding further.

120.4. The police officer cannot avoid his duty of

registering offence if cognizable offence is disclosed.

Action must be taken against erring officers who do not

register the FIR if information received by him discloses a

cognizable offence.

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120.5. The scope of preliminary inquiry is not to verify the

veracity or otherwise of the information received but only

to ascertain whether the information reveals any

cognizable offence.

120.6. As to what type and in which cases preliminary

inquiry is to be conducted will depend on the facts and

circumstances of each case. The category of cases in which

preliminary inquiry may be made are as under:

(a) Matrimonial disputes/ family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating

criminal prosecution, for example, over 3 months' delay in

reporting the matter without satisfactorily explaining the

reasons for delay.

The aforesaid are only illustrations and not exhaustive

of all conditions which may warrant preliminary inquiry.

120.7. While ensuring and protecting the rights of the accused

and the complainant, a preliminary inquiry should be made

time-bound and in any case it should not exceed 7 days. The

fact of such delay and the causes of it must be reflected in the

General Diary entry."

The power which is conferred upon the magistrate to order an

investigation under Section 156 (3) is before taking cognizance of an

offence. Section 156 (3) provides that any magistrate empowered under

Section 190 may order such an investigation into any cognizable case by

an officer in charge of a police station.”

13. Now the question would be as to whether the contents of the

application under Section 156(3) CrPC, moved by the petitioner,

discloses a cognizable offence for forwarding of the complaint to the

police for investigation under Section 156 (3) CrPC. Definition of

cognizable offence is enunciated under Section 2 (c) of the CrPC, which is

reproduced hereinbelow:

“(c) "cognizable offence" means an offence for which, and "cognizable

case" means a case in which, a police officer may, in accordance with

the First Schedule or under any other law for the time being in force,

arrest without warrant;”

14. At this juncture, in my opinion, it would not be befitting to elaborate

the scope and nature of cognizable offence, which itself spell out from the

definition as given above. In a complaint under Section 156(3) CrPC, the

petitioner has made an allegation of committing a crime of criminal

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breach of trust, dishonesty, deceiving, defamation and false allurement on

the ground that Bhartiya Janta Party led by respondent No. 2 has failed to

fulfil his promise as enunciated in its Election Manifesto-2014. Voters are

allured to cast vote in favour of the party by magical promises.

15. Paramount question for consideration in the present petition lies in a

narrow compass as to whether non-fulfilment of any promise as made in

the Election Manifesto-2014 amounts to commission of cognizable

offence in the eye of law. On a pointed query, learned counsel for

petitioner has failed to demonstrate any penal provision for betrayal of a

party concerned from the promises as made in the Election Manifesto-

2014. To discuss the nature and scope of election manifesto promulgated

by political parties, Hon’ble Supreme Court in the case of S.

Subramaniam Balaji Vs. The Government of Tamil Nadu and others,

(2013) 9 SCC 659 has expounded that the manifesto of political parties is

a statement of its policy. Promises made in the manifesto cannot be

treated to be corrupt practice as is denoted under Section 123 in The

Representation of the People Act, 1951. No penal provision has been

provided considering the non-fulfilment of the promises as made in the

election manifesto as a crime. Though under The Representation of the

People Act, 1951, there is a provision for registering the political parties

but there is no specific provision for the cancellation of their registration

on any ground including the alleged false promise as made in the election

manifesto. Hon’ble Supreme Court in case of S. Subramaniam Balaji

(supra) has laid down that i) the provisions of The Representation of the

People Act, 1951 place no fetter on the power of political party to make

promises in the election manifesto, and, ii) that it is not for the Courts to

legislate as to what kind of promises can or cannot be made in the election

manifesto, applies on all force.

16. In the case of Mithlesh Kumar Pandey Vs. Election Commission of

India and others, (2014) 6 AIR Del R 139, Division Bench of Hon’ble

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Delhi High Court has discussed the post poll alliances of the political

parties and their manifesto released. It was argued before the Hon’ble

Court that the manifesto released by political party forms the basis of

party’s election campaign since it compiles in one document the policies

of the party; the party explicitly seeks the votes of electorate on the basis

of statements and promise made in the manifesto; the manifesto of a

political party is analogous to making ‘offer’ as understood in the law of

contract, which contract is complete on the acceptance of the ‘offer’, that

is to say, at the time when the voters vote for that political party and the

party ultimately comes to power or makes the Government, therefore, the

political party should not be permitted to carry out acts which are in

blatant disregard and breach of their own manifestos. The relevant

paragraph No. 3, 8 and 9 of the aforesaid judgment is quoted below:

“3. We, at the outset, invited attention of the petitioner appearing in

person to the judgment of Justice R.C. Lahoti (as his Lordship then was)

of this Court in ANZ Grindlays Bank Pie v. Commissioner, MCD 1995 II

AD (Delhi) 573 where, dealing with an argument of promissory estoppel

and legitimate expectations on the basis of election manifesto, it was held

that election manifesto of a political party howsoever boldly and widely

promulgated and publicised, can never constitute promissory estoppel or

provide foundation for legitimate expectations. It was further held that it

is common knowledge that political parties hold out high promises to the

voters expecting to be returned to power but it is not necessary that they

must be voted in by the electorate; the political parties may commit to the

voters that they would enact or repeal certain laws but they may not

succeed in doing so for reasons more than one and they know well this

truth while making such promises and the electorate to which such

promises are made also knows it. It was further held that neither the plea

of promissory estoppel nor the plea of legitimate expectations can be

founded thereon.

8. Reference in this regard may also be made to what Lord Denning,

sitting in the House of Lords observed in Bromley London Borough

Council Vs. Greater London Council 1982 (1) All England Law Reports

129. It was said:-

"A manifesto issued by a political party - in order to get

votes - is not to be taken as gospel. It is not to be regarded

as a bond, signed, sealed and delivered. It may contain -

and often does contain - promises or proposals that are

quite unworkable or impossible of attainment. Very few of

the electorate read the manifesto in full. A goodly number

only know of it from what they read in the newspapers or

hear on television. Many know nothing whatever of what it

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contains. When they come to the polling booth, none of them

vote for the manifesto. Certainly not for every promise or

proposal in it. Some may by influenced by one proposal.

Others by another. Many are not influenced by it at all. They

vote for a party and not for a manifesto. I have no doubt that

in this case many ratepayers voted for the Labour Party

even though, on this one item alone, it was against their

interests. And vice versa. It seems to me that no party can or

should claim a mandate and commitment for any one item in

a long manifesto. When the party gets into power, it should

consider any proposal or promise afresh - on its merits -

without any feeling of being obliged to honour it or being

committed to it. It should then consider what is best to do in

the circumstances of the case and to do it if it is practicable

and fair."

The same view was followed by the High Court of Justice Queen's Bench

Division Administrative Court in R (Island Farm Development Ltd.) Vs.

Bridgend County Borough Council [2006] EWHC 2189 (Admin).”

“9. In view of the aforesaid legal position, post-poll alliances cannot be declared as

illegal on the ground of being contrary to the manifesto of the political parties

entering into the alliance and it is not within the domain of this Court to legislate or

issue a direction therefore, making the manifesto a legally binding document on the

political party issuing the same.”

17. Learned Senior Advocate has cited the case of VP Ammavasai Vs.

Chief Election Commissioner, Election Commissioner of India and

others, reported in 2019 SCC OnLine Mad 5623, wherein Division

Bench of Hon’ble Madras High Court has expressed his view that the poll

manifesto does not have any statutory backing. Hence, it is not

enforceable in the eyes of law. Relevant paragraphs No. 12 and 13 are

reproduced hereinbelow:

“12. Thus from the line of judgments of the Hon'ble Supreme Court in

S.Subramaniam Balaji's case, duly followed by High Courts of Delhi,

Rajasthan, Allahabad and this Court, it could been seen that there is

consistency that election manifesto made by a political party or by an

individual candidate, in its true construction would not mean, corrupt

practice by the individual candidate or the party, as the case may be, and

that apart, there is no provision in the Representation of Peoples Act,

prohibiting an individual candidate from resorting to promises, which

could be construed as corrupt practice, within the meaning of Section 123

of the Representation of the Peoples Act, 1951.

13. Clause 18.4 of the Model Code of Conduct enclosed in the typed set of

papers filed by the petitioner also indicates that the Delhi High Court in

Mithilesh Kumar Pandey v. Union of India, reported in 2014 SCC Online

Del.4771 : AIR 2015 (MOC 103) 45, held that there is no provision in law,

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which makes promises made by political parties in their election

manifestos enforceable against them.”

18. Learned Senior Advocate has also invited the attention of the Court

towards the judgment dated 26.4.2019 passed by the Division Bench of

this Court in the case of Vivek Kumar Mishra Vs. Union of India,

Cabinet Secretary and others, reported in 2019 SCC OnLine All 5139.

Aforesaid petition was filed for cancellation of the registration of the

political parties and for issuing a direction of appropriate nature that

unless and until the proper accountability in dealing with election

manifesto for translating them into action is fixed and accounted for

participation of the erring political party in any election may be debarred

and their election symbol may be forfeited. Dealing with the issue of non-

fulfilment of the promise as made in the election manifesto, Hon’ble

Division Bench dismissed the petition with observation that manifesto of

political parties is a written statement declaring policy, the intention,

motive or views of the said party, however, such declaration cannot have

any binding effect or implemented through court of law. The relevant

paragraphs No. 7, 8, 11, 12 and 14 are quoted hereinbelow:

7. The manifesto of a political party issued at the time of general

election is a written statement declaring publicly the intentions, motives

or views of the said party, what it hopes and vows to do if it is elected

and forms the government in future. Such a hope and vow of a party can

not have any binding effect or implemented through court of law and it

can also not be de-registered for not fulfilling it even if some people or

class of people are alleged to have been allured by it as admittedly it has

no legal sanctity. The people, through their votes in the next election,

can show their resentment.

“8. Lord Denning in regard to election manifesto has observed in

Brobley London Borough Council Vs. Greater London Council 1982 (1)

129 All England Law Reports, as under:-

"A manifesto issued by a political party, in order to get

votes, is not to be taken as gospel. It is not to be regarded

as a bond, signed, sealed and delivered. It may contain, and

often does contain, promises or proposals that are quite

unworkable or impossible of attainment. Very few of the

electorate read the manifesto in full. A Goodly number only

know of it from what they read in the newspapers or hear

on television. Many know nothing whatever of what it

contains. When they come to the polling booth, none of

them vote for the manifesto. Certainly not for every promise

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or proposal in it. Some may be influenced by one proposal.

Others by another. Many are not influenced by it at all.

They vote for a party and not for a manifesto. I have no

doubt that in this case many ratepayers voted for the

Labour Party even though, on this one item alone, it was

against their interests. And vice Versa. It seems to me that

no party can or should claim a mandate and commitment

for any one item in a long manifesto. When the party gets

into power, it should consider any proposal or promise

afresh, on its merits, without any feeling of being obliged to

honour it or being committed to it. It should then consider

what is best to do in the circumstances of the case and to do

it if it is practicable and fair."

11. Therefore, since there is no legislation in this regard so no action

can be taken for not fulfilling the promises and commitments made in a

manifesto of a political party and reading down of the provision also

does not arise. Therefore the contention of the learned counsel for the

petitioner on the basis of observation of Lord Denning (Supra) is

misconceived and repelled.

12. So far as the allegation of criminal liability in the form of fraud,

cheating and criminal breach of trust are concerned, this Court is

doubtful of having fulfilling the ingredients of the said offences. Even

otherwise non fulfillment of the promise, made in a manifesto which has

no legal sanctity, can not be a ground for criminal prosecution. However

if any body is aggrieved, he may avail appropriate remedy available

under criminal law.

14. The promises in the election manifesto can also not be read into

Section 123 for declaring it to be a corrupt practice because the

allegation of the corrupt practice can be levelled for an act against the

candidate or his agent or by any other person with the consent of a

candidate or his election agent which can not include the political party.

The Hon'ble Apex Court in the case of S. Subramaniam Balaji Vs. State

of Tamilnadu and Others; (2013) 9 SCC 659 has held as under in

paragraph 84.1:-

"84.1. After examining and considering the parameters

laid in Section 123 of RP Act, we arrived at a conclusion

that the promises in the election manifesto cannot be read

into Section 123 for declaring it to be a corrupt practice.

Thus, promises in the election manifesto do not constitute

as a corrupt practice under the prevailing law. A reference

to a decision of this Court will be timely. In Prof.

Ramachandra g. Kapse Vs. Haribansh Ramakbal Singh

(1996) 1 SCC 206 this Court held that:-

"21. ... Ex facie contents of a manifesto, by itself, cannot be

a corrupt practice committed by a candidate of that party."

19. In a recent judgment of Madras High Court in a case of M.

Chandramohan Vs. The Secretary, Ministry of Parliamentary Affairs

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and others (WP (MD) No. 18733 of 2020) decided on 31.3.2021, the

Division Bench of Madras High Court has discussed the issues of freebies

offered in the election manifesto to allure the voters to cast votes in their

favour. Considering the dictum of Hon’ble Supreme Court in the case

of S. Subramaniam Balaji (supra), Hon’ble Division Bench has laid

down that no doubt the statutes provided in The Representation of

Peoples Act, 1951 does not penalises the political parties indulging in the

corrupt practice as clearly distinguished in the above judgment. The

Representation of Peoples Act, 1951 was passed immediately after our

country was made a republic in the year 1950 and the policy maker of

that time did not foresee that the political parties would stoop down to the

level of indulgence in corrupt practice in the name of election manifesto

and that is the reason why they did not include the political parties under

Section 123 of the Representation of Peoples Act, 1951, even though the

candidates or his/her agents are included.

20. So far as the submission made by the learned counsel for the

petitioners with respect to the pendency of the writ petition No. (s).

688/2019 is concerned, this Court has no authority to discuss the merits

of the said case or impede the proceeding of the present petition, keeping

in view the pendency of the aforesaid matter.

21. It is, thus, clear that the election manifesto promulgated by any

political party is a statement of their policy, view, promises and vow

during the election, which is not the binding force and the same cannot be

implemented through the courts of law. Even there is no penal provision

under any statute to bring the political parties within the clutches of

enforcement authorities, in case, they fail to fulfil their promises as made

in the election manifesto.

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22. Learned counsel for the petitioner failed to substantiate his

submissions in assailing the orders impugned, as to how cognizable

offence is made out in the present matter for the purposes of issuing a

direction for investigation as enunciated under Section 156 (3) CrPC.

Even in a provision as embodied under Section 123 of The

Representation of Peoples Act, 1951 only a candidate or his/her agents

has been brought under law for adopting a corrupt practices of election

but the aforesaid provision is not made applicable on any political party

as a whole.

23. Learned Magistrate as well as the revisional court has discussed the

contents of the application under Section 156 (3) CrPC moved by the

present petitioner in detail and very consciously came to to conclusion

that on the face of record, no case is made out for the purposes of

investigating the cognizable offence. Record also reveals that the

petitioner has casually invoked the authority of the Magistrate and the

application under Section 156 (3) CrPC has been filed in a routine

manner without taking any responsibility whatsoever only to harass the

respondent No. 2. The application/complaint does not, prima facie,

disclose any commission of cognizable offence.

24. After perusal of the judgment passed by the courts below, it cannot be

said that they have decided the matter in a cursory manner without

applying their judicial mind. Non-occurrence of any cognizable offence is

also one of the paramount condition which averted the courts below from

issuing a direction for investigation in exercise of powers under Sections

156 (3) CrPC.

25. In this conspectus as above, I do not find any substance in the present

writ petition. No justifiable ground has been made out warranting

indulgence of this Court in exercise of its supervisory jurisdiction under

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Article 227 of the Constitution of Indian to interfere in the impugned

orders. There is no illegality, perversity and ambiguity in the impugned

orders. The present writ petition, being devoid of merits and

misconceived, is dismissed with no order as to the costs.

Order Date:- 2.3.2022

vinay

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