- (1.) MRS. Poonam Srivastava, J. Heard Sri Anoop Trivedi, learned Counsel for the petitioner, Sri V. S. Singh Advocate for the respondent No. 2 and learned A. G. A. for the State.
(2.) THE instant writ petition is filed with a prayer for quashing the proceedings in complaint case No. 541 of 2004, pending in the Court of 1st Judicial Magistrate, Meerut and also challenging the orders dated 23-1-2002 passed in revision and the order dated 12- 4-2002 summoning the petitioner under Section 127-A of the Representation of Peoples Act, 1951. The facts of the case are that the petitioner is a resident editor of Hindi Daily Dainik Jagran published from Meerut. The newspaper is published in confirmation of the provisions of Press and Registration of Books Act, 1867. The respondent No. 2 preferred a complaint in the Court of Chief Judicial Magistrate, Meerut under Section 127-A of the Representation of Peoples Act, 1951 (hereinafter referred to as the Act ). Copy of the complaint is annexed as Annexure-1 to the writ petition. The allegations in the complaint are that after dissolution of 12th Lok Sabha, the process of holding elections for the 13th Lok Sabha commenced in the month of August, 1999 in Meerut Parliamentary Constituency. The process of holding election commenced w. e. f. 30th August, 1991 under the provisions of the Act. 25-9-1999 was the date fixed for voting and it was to commence at 7. 00 a. m. and continue till 5. 00 p. m. on the same date i. e. , 25-9-1999. A news item was published in the Hindi Daily Dainik Jagran. The caption of the news item was "muslim JATH EVAM GUJAR MATON KA CONGRESS KE PAKSH ME DHRUVIKARAN" and another news item under the caption "bhajapa KI FLOP JAN SAMUHON SE CONGRESIYON KE HAUNSALE BULAND" and another item "jume KI NAMAJ ME BHADANA KO VOTE DENE KI APPEAL. NARAJ CONGRESIYON NE BHADANA KO JITANE KE LIYE KAMAR KASI. BHAJAPA APHAVOHO KI RAJNITI KAR RAHI HAI : BHADHANA". On the basis of aforesaid publication, it was alleged that an offence under Section 127-A of the Act has been committed. Learned Magistrate rejected the complaint on 31-7-2000 under Section 203, Cr. P. C. coming to a conclusion that no offence is made out. This order was challenged in Criminal Revision which was allowed by the respondent No. 2 on 23-1-2002. The matter was remanded to the Magistrate to pass fresh orders on merits after giving an opportunity of hearing. The revisional Court was of the view that the learned Magistrate did not take into consideration whether the publication which was published under the heading 'advertisement' can be included within the meaning of "poster or pamphlet". An observation of the revisional Court was to the effect that the advertisement can very well be included in the definition of 'poster'. The word 'poster' in English means Vigyapan in Hindi. Besides, the learned Additional District and Sessions Judge was of the view that no information was given to the Election Office regarding the instant publication. Neither any prior information nor any permission was obtained by the Hindi Daily. Accordingly, the order of the learned Magistrate rejecting the complaint under Section 203, Cr. P. C. was recalled. Pursuant to the aforesaid order, the learned Magistrate summoned the two accused vide order dated 12-4-2002. Narendra Mohan, the erstwhile alleged newspaper editor died on 20-9-2002. The petitioner alone filed his objections against the order dated 12-4-2002 passed by the IInd Additional Chief Judicial Magistrate, Meerut issuing process on various grounds but before the orders could be passed on the objection, the law stood changed and in view of the Apex Court decision in the case of Adalat Prasad v. Roop Lal Zindal and Ors. , 2005 (1) JIC 164 (SC) : 2004 (5) ACC 924, the objection was not maintainable, hence the instant writ petition was preferred challenging the order taking cognizance under Section 127-A of the Act. This Court had stayed the proceedings pending in the Court of Judicial Magistrate 1st, Meerut. Counter and rejoinder affidavits have been exchanged and this writ petition is being heard finally.
(3.) SRI Anoop Trivedi has raised a number of contentions challenging the impugned order passed by the learned Magistrate summoning the petitioner. The first objection is that Dainik Jagran is a leading newspaper and the alleged offensive publication, in respect of which the instant complaint has been filed, cannot constitute an offence within the meaning of Section 127-A of the Act. The publication was in Hindi Daily and bare perusal of the same makes it clear that it was only an advertisement published in the newspaper and cannot constitute an 'election pamphlet or poster'. Besides the restriction imposed by Section 127-A of the Act is that any such publication which does not bear the name, address of the printer or the publisher, will be covered within the meaning of offence. The newspaper is a leading newspaper and the publisher of the Hindi Daily is a known figure, besides the newspaper itself is registered under the provisions of the Press and Registration of Books Act, 1867. So far Section 127-A (b) of the Act relates to the prior permission of the Chief Electoral Officer or the District Magistrate concerned, it is submitted that no permission is required since the publication was only an advertisement in Hindi Daily which is published every day. The next submission is that Section 127-A (3) (b) of the Act defines "election pamphlet and poster" as any printed pamphlet, handbill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or poster having the reference to an election. The alleged publication has been annexed as Annexure-5 to the writ petition. The next submission is that the complaint filed by the respondent No. 2 is misconceived and vague. Besides, no objection whatsoever was raised by any administrative authority or any officer conducting the election regarding alleged offensive publication. It is also argued that the complaint is liable to be quashed on the ground of limitation under Section 468, Cr. P. C. , as the punishment provided under Section 127-A (4) is for a term which may extend to six months or with fine which may extend to two thousand rupees, or with both.;