NAVINCHANDRA GANDHI Vs. PUSHPASEN KAPADIA

JUDGEMENT

(1.) A criminal case under S. 171H of the I.P.C. has been filed by the first respondent against the petitioner herein on the grounds that elections for filling a seat in the Legislative Assembly of Goa, Daman and Diu were held in the month of Nov. Dec. 1984 in the constituency of Diu. The complainant was a supporter and election agent of the candidate, Dr. Shamjibhai B. Solanki who was returned. During the election campaign, the petitioner was the agent of the candidate, Mr. N. S. Fugro, who had stood as an independent. He is a partner in the family business of Mr. Fugro, he used to do propaganda work and was handling the election office in the same manner as the candidate, he acted as the counting agent of the said Fugro and he used to give advertisement and also gave materials for printing to different printers and editors of the newspapers. After the elections, Mr. Fugro filed an election petition in this Court and the same is pending. In the course of his deposition, Fugro stated that for want of knowledge, he denied that an advertisement was published in the newspaper "Meri Awaz" in furtherance of his election prospects by the petitioner in the issue dt. 16-12-1984. He denied the suggestion that the said advertisement has been published with his knowledge and consent. Then, instances of the advertisements were given and it is stated that each of such advertisements must have cost more than Rs. 10/-. It was further averred in the complaint that the complainant approached the accused and asked him whether he had general or special authority and the petitioner has answered to these inquiries in the negative. Along with the complaint, an application for condonation of delay in filing the said complaint was also moved.

(2.) The learned Magistrate, Diu, by his impugned order dt. 7th Aug. 1985, held that the complaint was within time and was covered by cl. (b) of S. 469 of the Cr. P.C. It is against the said order that the present revision application was preferred.

(3.) Mr. J. Dias, the learned senior counsel appearing for the petitioner, submitted that the impugned order is manifestly erroneous and is liable to be set aside. He contended that the offence complained of is the one which is contemplated in S. 171-H of the I.P.C. The said offence is meant to maintain the purity of an election and, as such, only the authorities concerned with the process of the election have locus standi to file a criminal case under the said Section, for only they are aggrieved persons. He then contended that the complainant has no locus standi and could not be said to be an aggrieved person and, therefore, could not have prosecuted the petition. Then, the learned counsel invited my attention to the circumstance that the offence under S. 171-H of the I.P.C. is punishable with the fine which may extend to Rs. 500/- and that S. 468 of the Cr. P.C. provides a period of limitation of six months if the offence is punishable with fine only. The advertisement had been published in Dec. 1984 and the complaint was filed only on 27th July, 1985, that is beyond the period of limitation laid down in S. 468(2)(a) of the Cr. P.C. He further contended that the provision of S. 469(1)(b) of the Cr. P.C. is not attracted at all to the facts and circumstances of this case, for the complainant cannot be said to be an aggrieved person for the reasons already stated. In this respect, the learned counsel placed reliance on the decisions of the Mysore High Court in State v. Gangamma AIR 1965 Mys. 235, and of the Madras High Court in Sulochana v. State Registrar of Chits, Madras, 1978 0 CrLJ 116. The learned counsel submitted that the expression "person aggrieved by the offence" occurring in S. 469(1)(b) and (c) of the Cr. P.C. should be given a limited or restricted coverage, that is to say, one who is personally and directly affected by an offence, and not to any member of the Public or even an officer who is charged with the duty of enforcing the prohibitory regulations under a statute.