Veeraraghavan v. Rajanikanth

Mr. Rajnikanth, a film actor, called as a Super Star, having a large fan following all over India, especially in Tamil Nadu, has been accused of having given a tele-campaign presentation, on the eve of the General election, asking the voters of Tamil Nadu to accept Rs. 500/- or Rs. 1,000/- from the opponent candidate and refrain from voting for that candidate, even after taking money, in a private complaint filed by One Veeraraghavan, an Advocate practising at Madras, for the Offences under Sections 171-B and 171-C I.P.C

2. The above complaint presented before the learned Chief Metropolitan Magistrate, Egmore, Madras, was entertained and the sworn statement was taken from the complainant and after having considered the complaint, sworn statement and other records filed along with that, the above complaint dismissed under Section 203 Cr.P.C Hence the revision before this Court.

3. The short point that arises for consideration is whether the impugned election speech made by respondent exhorting the voters to take Rs. 500/- or Rs. 1,000/- from the candidate and not to vote for him would attract the penal provisions of Section 171-B, 171-C and Section 116 read with Sections 171-B and 171-C I.P.C?

4. The marshalling of few facts would be essential to have a clear picture about the entire case, as is provided in the complaint, sworn statement and other records produced by the complainant, before the lower Court :—

(i) The petitioner Veeraraghavan, is a Lawyer, practising in the High Court, Madras. The respondent Rajnikanth, is a popular cine-actor, having a large following, all over India, especially in Tamil Nadu. During the General elections proposed to be held on 2.5.1996, for Assembly constituencies as well as for Lok-Sabha, Mr. Rajnikanth, Super Star, the respondent herein, announced that he would be campaigning on behalf of the candidates of DMK & TMC alliance. The opponent combine was formed by the then ruling party - AIA DMK headed by J. Jayalalitha, along with some other parties.

(ii) The respondent Mr. Rajnikanth was away from India till about a few days prior to the date of polling, which was scheduled to be taken place on 2.5.1996 He arrived at Madras from USA on 21.4.1996, and announced that since not much time was left for him to visit places personally for the purpose of electioneering, he would appeal to the voters to exercise their franchise in favour of the candidates sponsored by the DMK-TMC combine through television. Accordingly on 22.4.1996, his speech was telecast in Sun T.V, and in other channels on subsequent dates. After telecast, the gist of his speech was published in various dailies, such as Indian Express etc.

(iii) The offending speech as mentioned in the complaint and sworn statement is as follows :—

The English translation is as follows :—

“I would like to tell the people only one thing. The Tamil Nadu citizens cannot be purchased with money. Money can't buy. Money can't buy. That is why I want to tell this. They are having lots of money. If they give money, do not refuse. If they give Rs. 50 or Rs. 100 do not take it. If they give Rs. 500 or Rs. 1000/- take it, why because it is your money. It is your money. Take that full money. Keep that money. Naturally you will feel that you have taken money from them. Please do not vote for them. Take that money.”

(iv) After hearing the full speech in the Television on 22.4.1996, and reading the publication of the said speech in dailies like Indian Express, the petitioner, and Advocate, sent a complaint on 23.4.1996 and 26.4.1996, to the Chief Election Commissioner, New Delhi, praying for immediate criminal action against the respondent, and to disqualify all the candidates of DMK-TMC, whose election campaign stands vitiated due to the Offending speech of Mr. Rajnikanth, and to seize all the above said video cassettes. Despite the receipt of the said complaint, there was no action. Therefore, the petitioner filed a private complaint before the Chief Metropolitan Magistrate, Egmore, Madras, on 30.4.1996, requesting the Court to take the complaint on file for the offence under Sections 171-B, 171-C and Section 116 read with Sections 171-B and 171-C I.P.C, against the respondent Mr. Rajnikanth.

(v) On the complaint being entertained, the learned Chief Metropolitan Magistrate, posted the case on 3.5.1996 for recording the sworn statement of the complainant and others. On the said date, the complainant alone was present. His sworn statement was recorded. Through him the video cassette, containing the recorded speech of the respondent, and the first page of Indian Express dated 23.4.1996, in which his speech was published were marked. At request, the case was adjourned to 7.5.1996, for further proceedings. On 7.5.1996, again it was adjourned at the request of the petitioner, to 17.5.1996 However, no witness was produced on 17.5.1996 On that day, the counsel appearing for the petitioner argued the matter, requesting the Court to take cognizance of the above Offences by taking the case on file on the available materials. After the counsel was heard at length, the matter was adjourned to 22.5.1996, for pronouncing orders. On 22.5.1996, the complaint was dismissed under Section 203 Cr.P.C, by the learned Chief Metropolitan Magistrate. Being aggrieved over this, the petitioner has filed this revision before this Court.

5. Mr. A. Raghunathan, learned Counsel appearing for the petitioner requests this Court to have a final disposal of this revision, even without the service of notice on the respondent herein, in view of the fact, the accused cannot be heard, as the present revision is filed questioning the dismissal order under Section 203 Cr.P.C, prior to the stage of issue of process. Though, in fact notice was issued in this case to the respondent, on the date of admission of this revision by this Court, I am of the view, as rightly pointed out by counsel for the petitioner, that this revision could be disposed of, even without hearing the respondent herein, as he is not entitled to be heard, as laid down by this Court, as well as by the Apex Court on various occasions.

6. Therefore, I deem it fit that notice could be issued to the Public Prosecutor of this Court, in order to get the proper assistance to decide the legal question raised in this case. Accordingly, in pursuance of the notice issued by this Court, Mr. Shanmugasundaram, learned Public Prosecutor, entered appearance on behalf of the State.

7. While challenging the impugned order, learned counsel for the petitioner would elaborately submit, by pointing out the relevant provisions of the Indian Penal Code, the Representation of People Act, 1951, and the various citations, that the order of dismissal suffers with very grave illegality, and requests this Court to set aside the same, and direct the lower Court to take cognizance and to proceed on with the trial, after summoning the respondent herein. He cited various authorities in support of his submission.

8. The contents of the contentions urged by learned counsel for the petitioner could be summarized as follows :—

“The crux of the accusation is that the respondent Mr. Rajnikanth induced the voters to receive Rs. 500/- or Rs. 1,000/- from the candidate, and to refrain from voting for that candidate, after taking money.

By this offending speech, the respondent exercised ‘undue influence’ over the voters by abetting the voters to accept money and interfered in the electoral right of the voters, by asking them to refrain from voting in favour of the said opponent candidate, from whom money was received.

This would attract the Offence under Sections 171-B, 171-C I.P.C, and Section 116 read with Sections 171-B and 171-C I.P.C

According to Section 171-A (b) I.P.C “Electoral right” means, the right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election.

As per Section 171-B I.P.C, the act of accepting any gratification as the reward for exercising the electoral right or for inducing any other person to exercise any such right amounts to bribery.

Section 171-C (1) I.P.C, provides “Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the Offence of ‘undue influence’ at an election.”

Through the Offending speech, the respondent, who is a Super Star, by way of undue influence instigated the voters to accept bribe of Rs. 500/- or Rs. 1,000/- and to refrain from voting for that candidate. As he is a popular Super Star, with a large following of fans, his speech provided the instances of abetment, bribery, undue influence, direct inducement for gratification and refraining from voting.

Under Section 123 of the Representation of People Act, 1951, the undue influence has been defined as to mean, the direct or indirect interference with the free exercise of any electoral right. The speech has, in fact, abetted the voters to demand money from the parties other than DMK-TMC alliance.

The averments in the complaint, as well as in the sworn statement, and the telecast of this speech in the television, and the publication of his speech in Indian Express dated 26.4.1996, would certainly attract the Offences, for which the complaint was filed before the lower Court.

Without considering these things, the summary dismissal of the complaint by the lower Court, with no reasonings would amount to deliberate violations of the mandate contemplated under Sections 202 and 203 Cr.P.C”

9. Mr. Shanmugasundaram, learned Public Prosecutor, who is an amicus-curiae, appointed by this Court to assist the Court, would contend that the order passed under Section 203 Cr.P.C in his view, would not suffer from any infirmity, as there are no averments in the complaint and other documents filed by the complainant before the lower Court, constituting the offences alleged. He would also place various citations on this aspect.

10. Before adverting to the question raised in this Court, this Court is to consider yet another grievance projected in the argument advanced by the counsel for the petitioner. With vehemence the counsel for the petitioner would contend that the learned Chief Metropolitan Magistrate, has not followed the true spirit of the provisions contained under Section 200 and 204 Cr.P.C According to him, the lower Court cannot weigh the evidence meticulously at the pre-cognizance stage, and all that the learned Chief Metropolitan Magistrate has to see, whether or not there is sufficient ground for proceeding against the accused, and that the approach of the learned Chief Metropolitan Magistrate, in considering the probable result of the proceedings or undesirable motive or conduct of the complainant, which is not relevant at this stage is quite wrong.

11. Learned counsel for the petitioner has read out the discussion portion of the impugned order, in order to point out that the lower Court has not considered the complaint and other documents filed along with that, and the sworn statement recorded in the proper perspective. In order to seek support for this proposition, learned counsel for the petitioner cited the following authorities :—

(i) Kewal Krishnan v. Suraj Bhan (AIR 1980 S.C 1780)

(ii) Vijay Khanna v. Jumbo Electronics Co. Ltd., (1984 Crl.L.J 1667)

(iii) Rangayammal v. Chennimalai Gounder & Others (1986 MLJ (Crl.) 448)

(iv) Mariappan v. Paneerselavam and Eight Others (1990 L.W (Crl.) 141)

(v) Chellappa and Others v. Kulasekaran & Others (1990 M.L.J (Crl.) 188)

12. All these decisions would provide the elaborate discussion on the scope of the enquiry under Sections 200 to 202 Cr.P.C These decisions also would postulate the method by which the lower courts have to find out whether or not there is sufficient ground for proceeding against the accused, on the strength of the observations made in these decisions, learned counsel for the petitioner would strenuously point out the failure on the part of the Chief Metropolitan Magistrate to give opportunity to the complainant to prove his case by summoning the accused under Section 204 Cr.P.C

12-A. There is no dispute in this settled legal position, as laid down by this Court, as well as by the Apex Court.

13. But the point is, as pointed out by the learned Public Prosecutor, taking the averments at the face value, without adding or subtracting, the Court will have to find out, whether the ingredients of the offences in the complaint are made out or not. If those ingredients are absent, there is no other alternative for the lower court except to dismiss the complaint that the materials produced by the complainant at that stage would not be sufficient to issue process under Section 204 Cr.P.C

14. In the light of the above legal situation, let me go in to the main issue that arises in this case. As I referred earlier, the various authorities cited by learned counsel on either side would be useful for the purpose of deciding the main issue. Therefore, before launching discussion on the point of issue, let me refer to the citations one by one.

(a) In the decision reported in A.I.R 1922 Madras 337 (In Re Palanikumara Chinnaya), on behalf of the Division Bench, Odgers, J. holds as follows :—

“The first charge is simply ‘telling people not to vote’ the second is false representations as to increase of taxation and confiscation of property. I gravel doubt if either of these would constitute voluntary interference with free exercise of electoral rights so as to constitute the offence of undue influence at an election for which punishment is prescribed in Section 171 (f).

Under the English statute on which presumably the new Sections of the Indian Penal Code are modelled (46 and 47 Vict., Chapter 51, S. 2) the following persons are guilty of undue influence.

(1) Every person who directly or indirectly, by himself or by any other person on his behalf, makes use of or threatens to make use any force, violence or restraint, or inflicts or threatens to inflict, by him self or by any other person, any temporal or spiritual injury, damage, harm or loss upon or against any person in order to induce or compel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting at any election; and

(2) Every person who by abduction, duress, or any fraudulent device or contrivance succeeds the impeding of preventing the free exercise of the franchise of any elector, or thereby succeeds in compelling inducing or prevailing upon any elector either to give or refrain from giving his vote at any election.

I, think, therefore, upon further consideration, that neither of these so-called charges would fall within the meaning of S. 171 (c) “.

(b) In Moulvi Kabir Chowdhury, In re (A.I.R 1938 Calcutta 274), it is observed thus :—

“Bribery is defined as the giving or acceptance of a bribe either as a motive or as a reward to any person, either to induce him to stand or not to stand as a candidate or to withdraw from contest or to vote or not to vote at an election. It also includes an offer or an agreement to offer a bribe, or an offer to procure or attempt to procure a gratification for any person. Gratification is not confined to pecuniary gratification or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward. Payment for withdrawal of candidature of a rival is within the mischief of this Section.”

(c) The High Court of Andhra Pradesh, in Venkata Krishanarao v. G. Appalaswamy and Another, (1957 Crl.L.J 1212 (1)) while dealing with a similar case, held as follows :—

“The only question is whether the learned Judge was right in holding that the appellant was guilty of an offence under S. 171-B of the Indian Penal Code, which reads :—

“Whoever, gives a gratification to any person with the object of inducing him or any other personnel to exercise any electoral right or of rewarding any person for having exercised any such right, commits the offence of bribery.”

Mr. Rama Rao, learned counsel for the appellant, contends that prevention of a person from exercising his vote is not an offence of bribery within the meaning of S. 171-B . . .

But this argument ignores the definition of ‘electoral right’, in the Penal Code. Electoral right under S. 171-A (b) means :—

“The right of a person to stand or not to stand as or to withdraw from being, a candidate or to vote or refrain from voting at an election.”

If the words ‘electoral right’ in S. 171-B are substituted by the relevant part of the definition, it is obvious that to induce a person not to vote or to refrain from voting would be to induce him not to exercise his electoral right.”

(d) In Amir Chand Tota Ram v. Sucheta Kriplanai, (A.I.R 1961 Punjab 383), it has been observed as follows :—

“Before examining the factual position in this case the expression ‘undue influence’ requires to be carefully analysed and understood. The legal phrase ‘undue influence’ denotes something legally wrong or violative of a legal duty. In order to establish undue influence, it must be proved that the influence was such as to deprive the person affected of the free exercise of his will. It must amount to imposing a restraint on the will of another whereby he is prevented from doing what he wishes to do or is forced to do which he does not wish to do.

An advice, argument, persuasion or solicitation cannot constitute ‘undue influence’. Honest intercession, even importunity, falls short of controlling a persons free exercise of his will. A persuasion, which leaves a person free to adopt his own course, is not ‘undue influence’. Otherwise a suggestion or an entreaty from somebody, held in esteem, could be treated as undue influence. In the absence of proof that a person has been in consequence of the alleged influence deprived of free agency no question of there being an undue influence arises.”

(e) The Apex Court in Baburao v. Dr. Zakir Hussain, (A.I.R 1968 S.C 904), has held as follows :—

“It will be seen from the above definition that the gist of undue influence at an election consists in voluntary interference or attempt at interference with the free exercise of any electoral right. Any voluntary action which interferes with or attempts to interfere with such free exercise of electoral right would amount to undue influence. But even though the definition in Sub-S. (1) of S. 171-C is wide in terms it cannot take in mere canvassing in favour of a candidate at an election. If that were so, it would be impossible to run democratic elections. Further Sub-S. (2) of S. 171-C shows that the nature of undue influence is though of course it does not cut down the generality of the provisions contained in Sub-Section (1). Where any threat is held out to any candidate or voter is interested and the threat of injury of any kind, that would amount to voluntary interference or attempt at interference with the free exercise of electoral right and would be undue influence. Again where a person induces or attempts to induce a candidate, or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, that would also amount to voluntary interference with the free exercise of the electoral right and would be ‘undue influence’. What is contained in Sub-Section (2) of S. 171-C is merely illustrative. It is difficult to lay down in general terms where mere canvassing ends, and interference or attempt at interference with the free exercise of any electoral right begins. That it a matter to be determined in each case, but there can be no doubt that if what is done is merely canvassing it would not be ‘undue influence’. As Sub-Section (3) of S. 171-C shows, the mere exercise of a legal right without intent to interfere with an electoral right would not be undue influence.

We may in this connection refer to S. 123 (2) of the Representation of the People Act, 1951, which also defines ‘undue influence’. The definition there is more or less in the same language as in S. 171-C of the Indian Penal Code except that the words ‘direct or indirect’ have been added to indicate the nature of interference. It will be seen that if anything, the definition of ‘undue influence’ in the Representation of the People Act may be wider.

(f) The Supreme Court in Shri Shiv Kirpal Singh v. Shri V.V Giri ., (A.I.R 1970 S.C 2097), has observed as below :—

“The use of those words shows that canvassing or propaganda, however virulent, for or against a candidate would not amount to undue influence, and that undue influence can only mean some act by way of threat or fear of some adverse consequence administered at the time of casting the vote.

. . . Section 171-C is enacted in three parts. The first Sub-Section contains the definition of ‘undue influence’. This is in wide terms and renders a person voluntarily interfering or attempting to interfere with the free exercise of any electoral right guilty of committing undue influence. That this is very wide as indicated by the opening sentence of Sub-Section (2) i.e without prejudice to the generality of the provisions of Sub-Sec. (1). “It is well settled that when this expression is used anything contained in the provisions following expression is not intended to cut down the generality of the meaning of the proceeding provision . . .

It follows from this that we have to look at Sub-Section (1) as it is without restricting its provisions by what is contained in Sub-Section (2). Sub-Section (3) throws a great deal of light on this question. It proceeds on the assumption that a declaration of public policy or promise of public action or the mere exercise of a legal right can interfere with an electoral right and therefore it provides that if there is no intention to interfere with the electoral right it shall not be deemed to be interference within the meaning of this Section.”

(g) In N.S Vardachari v. G. Vasantha Pai and Others, (1972 (2) S.C.C 594), the Apex Court while referring V.V Giri's case, has dealt with ‘undue influence’ in the following observations :—

“The freedom of election is two fold :—

(1) Freedom in the exercise of Judgment. Every voter should be free to exercise his own Judgment, in selecting the candidate he believes to be best fitted to represent the constituency;

(2) Freedom to go and have the means of going to the poll to give his vote without fear or intimidation.”

(h) In M. Anbalagam v. State, (1981 Crl.L.J 1179), this Court, while dealing with Section on 171-C I.P.C would observe as follows :—

“A reading of Section 171-C, I.P.C would leave an impression that more influence on a voter in making his choice to one candidate or another will not amount to interference with the free exercise of electoral right, as canvassing in favour of a particular candidate is intended to influence the choice of a voter. . . So long as the leader of the party asked the electors to vote for a particular candidate belonging to his party or of an allied party, it will not amount to exercise of undue influence. So also a message by any person addressed to the Secretary of the Unit of the Communist Party of India at Vedaranyam to boycott the election would not amount to interference within the meaning of S. 171-C, I.P.C with the free exercise of electoral rights of the voters of the Communist Party, for the simple reason that the voters of that party would still be free to vote for the candidate they desire in spite of the telegram. There is no element of compulsion in the telegram. It may be an advice or a request which the voters of the Communist Party of India need not necessarily follow. I am therefore of the view that no offence under S. 171-C read with Section 171-F of the Indian Penal Code has been made out.”

(i) The observation of the Apex Court, in Charan Lal v. Giani Zail Singh, (A.I.R 1984 S.C 309), reads thus :—

“If the mere act of canvassing in favour of one candidate as against another were to amount to undue influence, the very process of a democratic election shall have been stifled because, the right to canvass support for a candidate is as much important as the right to vote for a candidate of one's choice. Therefore, in order that the offence of undue influence can be said to have been made out within the meaning of S. 171-C of the Penal Code, something more than the mere act of canvassing for a candidate must be shown to have been done by the offender. That something more may, for example, be in the nature of a threat of an injury to a candidate or a voter as stated in Sub-S. 2 (a) of S. 171-C of the Penal Code or, it may consist of inducing a belief of divine displeasure in the mind of a candidate or a voter as stated in Sub-S. 2 (b). The act alleged as constituting undue influence must be in the nature of a pressure or tyranny on the mind of the candidate or the voter. It is not possible to enumerate exhaustively the diverse categories of acts which fall within the definition of undue influence. It is enough for our purpose to say, that of one thing there can be no doubt: The mere act of canvassing for a candidate cannot amount to undue influence within the meaning of S. 171-C of the Penal Code.”

(j) The High Court of Kerala, in Ramachandran Kadanappalli v. K.P Noordeen (A.I.R 1988 Kerala 141), observed as hereunder :—

“Undue influence coming under S. 123 (2) includes undue influence under S. 171 I.P.C The two provisos to s. 123 (2) take in something more. But it has to be remembered that canvassing is the essence of election. It is as important as the right to vote. The candidate and his supporters are entitled to canvass and influence the electors in his favour. Something more than canvassing is required to make it a corrupt practice to come under S. 123 (2). It must be a tyranny over the mind of the elector leaving no chance to exercise his free volition. Threat of injury to a candidate or a voter under S. 171-C (2-a) I.P.C or inducing a belief as stated in the two provisos will be undue influence.

Anything done by a candidate before his candidature for gaining popularity in the constituency with an eye on the ultimate candidature will not come within the provision. In what the successful candidate is alleged to have done there must be an element of bargaining. If a Minister, as alleged in this case, redresses the grievance of the people of his constituency or renders them any help on the eve of election, it is not a corrupt practice unless it is alleged and proved that he obtained promises from the voters in return, as a condition for his help. There is no such allegation here. The allegations and evidence must show it clearly that there was a promise or gift directly or indirectly made to an elector to vote or refrain from voting at an election. In order to constitute corrupt practice the influence or threat must be calculated to interfere with the free exercise of electoral right and to leave no choice to the electors in the matter. Some developmental works alone in the constituency by a Minister on the eve of election will not attract S. 123 (2) without other allegations.”

15. In the process of dealing with the question posed earlier, I shall endeavour now, to refer to the various provisions of Indian Penal Code and Representation of people Act.

16. The offences alleged are under Sections 171-B, 171-C and Section 116 read with Sections 171-B and 171-C I.P.C

(a) Section 171-B I.P.C, provides the definition of ‘bribery’, that

“ (1) whoever — (i) gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or (ii) accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right, commits the offence of bribery.

(2) A person who offers, or agrees to gives, or offers or attempts to procure, a gratification shall be deemed to give a gratification.

(3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing which he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward.”

This provision would make it clear, that the act of giving a gratification to any person to exercise any electoral right and accepting such a gratification for exercising any such electoral right would amount to the offence of bribery. In the instant case, as pointed out by learned Public Prosecutor, neither the giver nor the acceptor is the party before the Court. There is no allegation that the respondent herein either gave or received any such gratification. As such the offence under Section 171-B of the Indian Penal Code — Simplicitor, would not be attracted in this case.

(b) The next Section would be Section 171-C I.P.C This would provide the ‘undue influence’ at elections. This Section lays down,

(1) whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election.

(2) Without prejudice to the generality of the provisions of sub-section (1) whoever-

(a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or

(b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub-section (1).”

(c) Section 123 (2) of the Representation of the People Act, 1951, also while defining ‘undue influence’ in a Chapter relating to the Corrupt Practices and Electoral Offences, provide that “any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free, exercise of any electoral right, shall be deemed to interfere with the free exercise of the electoral right of such candidate or electoral within the meaning of this clause.”

So, both Section 171-C (1) I.P.C, and Section 123 (2) of the Representation of the People Act, are more or less similar, as they refer to the generality of the provision relating to the interference with the exercise of the electoral right of any voter.

(d) Statement of Objects and Reasons, Gazette of India, 1920, Part V, reads thus :—

“Undue influence” at an election is defined as the voluntary interference or attempted interference with the right of any person to stand, or not to stand as, or withdraw from being, a candidate, or to vote or refrain from voting. This covers all threats of injury to person or property and all illegal methods of persuasion and any interference with the liberty of the candidates or the electors. A sub-section is added to explain that the inducing or attempting to induce a person to believe that he will become the object of Divine displeasure is also interference. The second sub-clause is merely explanatory of the general definitions in the first sub-clause and does not restrict the generality of the words used there. We have considered the criticisms of this clause based on the generality of the words employed but we are satisfied that any attempt at specific enumeration would be open to a serious danger of loopholes in what we regard as most salutary provision.”

17. The conspectus scrutiny of the objects and reasons of the above Sections, the ingredients of the Sections, and the various citations rendered by this court as well as by the Apex Court, would give out following factors :—

(i) The ‘bribery’ is defined as the giving or acceptance of bribe as the reward to any persons to vote or not to vote at an election.

(ii) The legal phrase ‘undue influence’ denotes something legally wrong or violative of a legal duty. It must amount to imposing a restraint on the will of another whereby he is prevented from doing what he wishes to do or is forced to do which he does not wish to do.

(iii) A persuasion, which leaves a person free to adopt his own course is not undue influence.

(iv) In the absence of proof that a person has been, in consequence of the alleged influence, deprived of free agency no question of there being an undue influence arises.

(v) Though the definition in Sub-sec. (1) of Section 171-C I.P.C, is wide in terms, it cannot take in mere canvassing in favour of a candidate at an election. The first sub-section contains the definition of ‘undue influence’. This is in wide terms and renders a person voluntarily interfering or attempting to interfere with the free exercise of any electoral right guilty of committing undue influence. That this is very wide as indicated by the opening sentence of sub-section (2) i.e “without prejudice to the generality of the provisions of sub-sec. (1) “It is well settled that when this expression is used anything contained in the provisions following this expression is not intended to cut down the generality of the meaning of the preceding provision. It follows from this that we have to look at sub-section (1) as it is without restricting its provisions by what is contained in sub-section (2).

(vi) Sub-section (2) of Section 171-C I.P.C, shows what the nature of undue influence is, and it does not cut down the generality of the provisions contained in Sub-section (1) of Section 171-C. What is contained in sub-section (2) of Section 171-C, is merely illustrative.

(vii) Section 123 (2) of Representation of the People Act, 1951, also defines ‘undue influence’. This is more or less in the same language as in Section 171-C of I.P.C, except that the words “direct or indirect” have been added to indicate the nature of interference. So, the definition of ‘undue influence’ in the Representation of People Act, may be wider than the definition of ‘undue influence’ given in I.P.C

(viii) Asking the person to boycott the election would not amount to interference within the meaning of Section 171-C I.P.C, with the free exercise of electoral rights of the voters, for the simple reason, that the voters despite the advice would still be free to vote for the candidate they desire.

(ix) Mere advice without an element of compulsion to vote or not to vote would not amount to exercise of ‘undue influence’.

(x) If the mere act of canvassing in favour of one candidate as against another were to amount to undue influence, the very process of a democratic election will be stifled because the right to canvass support for a candidate is as much important as the right to vote for a candidate of one's choice. Therefore, in order that the offence of undue influence can be said to have been made out within the meaning of Section 171-C I.P.C, something more than the mere act of canvassing for a candidate must be shown to have been done by the offender. That some thing more may, for example, be in the nature of a threat of an injury. The act alleged as constituting undue influence must be in the nature of a pressure or tyranny on the mind of the voter.

(xi) The acts of undue influence cover all threats of injury to person or property and all illegal methods of persuasion and any interference with the liberty of the candidates/electors.

18. Bearing the above principles in mind, let me now indulge in the process of considering the offending speech made by the respondents herein, in order to find out, whether the ingredients for the remaining offences viz. under Section 171-C and Section 116 read with Sections 171-B and 171-C of the Indian Penal Code, are made out or not.

(i) As per the complaint, the accused induced the voter to take money from a candidate, and refrain from voting for that candidate. Though the portion of the offending speech, as mentioned in the complaint, does not indicate, on whose behalf and against whom the offending speech was made, the complete speech as made available in the video cassette, and the condensed form of the said speech, as published in the Indian Express newspaper produced before the lower Court, during the course of recording sworn statement would give clear picture to make the viewers and readers understand, under what circumstances, in whose favour and against whom, the speech had been made.

(ii) In the light of the above situation, it would be useful to refer some of the ‘extract’ of the speech made in the news publication dated 23-4-1996, in the Indian Express;

“Super star Rajnikanth has appealed to the electorate to create a new revolution from the south by throwing out the corrupt Jayalalitha Government and extending support to revolutionary political leader M. Karunanidhi and TMC leader G.K Moopanar. He cautioned the people that AIADMK would try to purchase them with money, “If they give Rs. 50 nor Rs. 100 do not accept it. If they give Rs. 500 or Rs. 1,000 take it, as they are only giving your money back. It is public money. But do not vote for them just because you have taken the money. It is a new revolution by the people. “. . .

Not only Tamil Nadu, or India, but even the whole world is aware of the atrocities committed by Jayalalitha. Despite knowing all this if Rao is prepared to keep an alliance with her, then every one knows the reason. I do not have to reveal it, “he said (indirectly meaning money) “.

(iii) This portion of the speech as published in Indian Express had also been mentioned in the complaint dated 23.4.1996, sent by the complainant to the Chief Election Commissioner, New Delhi filed in Court. Therefore, this Court could very well understand the actual meaning and real purport of the offending speech as given in the complaint, in the light of the full speech telecast, as provided in the cassette, and published in the Indian Express.

(iv) A perusal of the entire speech would make it crystal clear that the main propaganda made by the respondent Mr. Rajnikanth, through this tele-campaign would be to throw out the alleged corrupt Jayalalitha Government, by seeking support to the combine of DMK-TMC parties in Tamil Nadu.

(v) In this context, the words used by the respondent in the offending speech, to the effect that “if they give Rs. 50/- or Rs. 100/-, do not accept it; if they give Rs. 500/- or Rs. 1,000/-, take it; as they are giving only your money back, “would indicate that it is an advice to the voters, asking not to refuse the money from corrupt Jayalalitha combine, though they did not incline to vote for them, and to receive the substantial money from them, not as a regard for exercising vote in their favour, but to receive it, keep it with them, as the said money is their money, being the public money swindled by them.

(vi) This is also quite evident from the words used by the respondent, as ‘Tamil Nadu people cannot be purchased by money, money cannot buy and money cannot buy, “and that”. . . which would mean, that opponent combine has got lot of corrupt money, which was illegally; obtained by cheating the public. Therefore, the advice given by the respondent Mr. Rajinikanth, to the people, not to refuse the money given by the opponent group, and receive it, and not to vote for them, just because the voter has taken the money, because the money belong to the voters, the public, would neither be termed to be ‘undue influence’ nor the encouragement of bribery.

(vii) If the respondent adviced the voters to get money from the DMK-TMC combine for not voting in favour of Jayalalitha combine, it would definitely be an ‘undue influence’, through encouragement of bribery.

If he advices the voters to get money from DMK-TMC combine, and vote for them, it would certainly be an ‘undue influence’, through the encouragement of bribery.

If he adviced the people to get money from Jayalalitha combine and vote for them, it would also be an ‘undue influence’, through the encouragement of bribery.

But a reading of the speech of the respondent would go to show the anxiety of the respondent, to expose the alleged corrupt activities of Jayalalitha Government, and the necessity for throwing out their regime, by impressing upon the public that not only Tamil Nadu, or India, but even the whole World was aware of the atrocities committed by Jayalalitha. Therefore, the offending speech, if fully read, would not convey the meaning, that he has encouraged bribery, through ‘undue influence’.

(viii) Bribery means, as indicated in Section 171-B I.P.C “receiving gratification to exercise the electoral right in favour of the giver.” In this speech, he did not ask the people to demand money from the candidate for the purpose of exercising their vote in favour of the said candidate. As a matter of fact, the respondent asked the public not to reject their offer of money if made however, not to accept any small money, but to receive substantial sum, as the said sum belong to them, and not actually belong to the opponent candidate or to the party, to which that candidate belongs. He never advised the public to give assurance that they would vote for opponant group and then to receive the amount from them. He never advised to demand and receive as bribe. The very fact that the respondent asked the public not to refuse to receive money, would itself indicate that he addressed to such of the voters who have already decided not to vote for the opponent combine, for the reasons known to them. That was the reason, why the respondent advised the voters to refrain from voting as they have decided, and because of that they need not have to reject the offer of the money if made by the opponent combine, because that money actually belong to the voters. Under these circumstances, the said money, asked to be received cannot be said to be a gratification, since the voters receive the said money, as per the advice of the respondent, as their own money, getting back from the alleged corrupt political party headed by J. Jayalalitha, and not as a bribe.

(ix) When the main aim for the respondent would be to throw out the Government of bribery, the speech could not be taken to mean, that there was an advise to the public to take bribe. So, the definition of ‘bribery’ and ‘undue influence’, as provided in Section 171-B and 171-C of I.P.C, would not apply to the accusation levelled against the respondent by the petitioner in his complaint.

19. Therefore, the act of giving an advise not to vote for the bribe givers, would not be taken to mean to be ‘undue influence’, whereas giving gratification to the voter to induce him to exercise his electoral right in his favour would amount to ‘undue influence’. In the absence of any advice, asking the voter to demand bribe from any candidate or to vote for them after receipt of the bribe amount, it cannot be said, the offending speech given by the respondent would amount to undue influence, or bribery.

20. This view of mine finds support from the Judgment of Punjab High Court, reported in A.I.R 1961 Punjab 383, wherein it has been observed as follows :—

“The term ‘undue influence’ is not susceptible of precise definition, but it suggests the overcoming of the will of one by the other who superimposes his will on the weaker party despite the latter's disinclination or affective resistance. Undue influence is a species of constructive flow. Undue influence is used in contradistinction to proper influence which may be secured through affection bestowed or from kindness indulged . . .

In order to establish undue influence, it must be proved that the influence was such as to deprive the person affected of the free exercise of his will. It must amount to imposing a restraint on the will of another whereby he is prevented from doing what he wishes to do or is forced to do which he does not wish to do.

A friendly advice or an influence arising from gratitude or esteem is not undue influence unless thereby the functioning of a free mind is destroyed. Mere suggestions or appeals cannot have such an effect. An influence which exists from attachment or respect or which results from attachment or appeals to the reasons and judgment is not undue.”

20. Section 116 I.P.C, dealing with “abetment” provides that the person abetting an offence, even though that offence is not committed in consequence of that abetment, is liable to be punished. But, in this case, in view of the above discussion, it is to be concluded that asking the voters to receive money from opponent candidate, as it is the public money, cannot be said to be an offence of bribery, as receipt of the money by the voter is not as a gratification, but it was the money belonged to the voters. In the same way, asking the person to refrain him from voting in favour of the person, who gave money would never said to be attracting the ingredients of ‘undue influence’, when the ingredients of the main offences viz. Section 171-B and 171-C I.P.C, are not made out, the alleged abetment of the same as provided under Section 116 I.P.C, would never come into play.

21. Before concluding the discussion it is quite relevant to point out some of the observations made by the Supreme Court in the decision report in 1995 (5) S.C.C 123 (Dr. Das Rao Deshmukh v. Kamal kishore Nanasaheb Kadam and others), with reference to the duty of the Court, regarding the appreciation of the election speech made by the leaders of the political parties, about the issue of corrupt practice. The observations are:

“We may, however, indicate that speeches delivered in the election meeting by loaders of political parties should be appreciated dispassionately by keeping in mind the context in which such speeches were made. This Court has indicated a note of caution that in election speeches appeals are made by candidates of opposing political parties often in an atmosphere surcharged with partisan feelings and emotions. Use of hyperboles or exaggerated language or adoption of metaphors and extravagance of expression in attacking one party or a candidate are very common and court should consider the real thrust of the speech without labouring to dissect one or two sentences of the speech, to decide whether the speech was really intended to generate improper passions on the score of religion, caste, community etc. In deciding whether a party or his collaborators had indulged in corrupt practice regard must be had to the substance of the matter rather than mere form of phraseology.”

22. To sum up: In the light of the above observation, I may conclude that the offending speech, in the context of his full speech, as available in the video cassette as well as in the Indian Express, as discussed earlier, would never have trace of compulsion, nor imposing any restraint on the will of the voters, whereby they were prevented from doing, what they wish to do. At the most, it could be said, that it is a friendly advice or mere suggestion or rather appeal, without the tinge of undue influence of encouragement of bribery. Therefore, the speech suggesting a course, which cannot be stated to be something legally wrong, or violative of legal duty, would not, in my view, attract any of the offence alleged in the complaint.

23. In view of the above discussion, I am of the considered view, that the impugned order passed by learned Chief Metropolitan Magistrate, does not suffer from any illegality or any material irregularity, warranting interference of this Court.

24. In the result, the revision is dismissed, as devoid of merits. While parting with this case, I record the valuable assistance rendered by Mr. R. Shanmughasundaram, learned Public Prosecutor, an amicus curiae in this case, and the effective submission made by Mr. A. Raghunathan, learned counsel for the petitioner.