GUWAHATI: The Gauhati High Court has, in a significant observation made recently, said that it was about time the provision, enunciated in Section 126 of the Representation of People (RP) Act, and enacted way back in the year 1952, be revisited.

The provision deals with the prohibition of public meetings/election campaigning during a period of forty-eight hours ending with an hour fixed for conclusion of the poll.

The Bench of Justice Rumi Kumari Phookan made the observation as it quashed a case registered against incumbent Assam chief minister Himanta Biswa Sarma for alleged violation of the model code of conduct (then a Cabinet minister) during the 2019 Lok Sabha polls.

It may be recalled that a complaint petition was filed before the court of the chief judicial magistrate (CJM) Kamrup (Metro) following a directive from the Election Commission of India (ECI) against Sarma as well as against a news channel.

According to the allegations, Sarma and the channel’s managing director (Sarma’s wife, Riniki Bhuyan Sarma) had violated the Model Code of Conduct (MCC) of the Lok Sabha election by telecasting a live interview on April 10, 2019, within 48 hours of the first phase of polls scheduled on April 11, 2019.

The CJM of Kamrup Metro had taken cognisance of the offence under Section 126(1)(b) of the RP Act and had imposed a fine of Rs 2,000 on Sarma and his wife and had ordered them to appear before the court on March 21.

However, Sarma moved the High Court challenging this order with an instant plea.

The court noted that the complainant had, after filing his petition, remained absent and did not file documents supporting his petition.

Subsequently, the court observed that such a complaint was liable to be dismissed for non-prosecution under Section 203 of CrPC and/or other relevant orders as to whether the complainant has been able to make out a prima facie case for proceeding, etc

However, the court noted that the CJM exceeded the jurisdiction and acted as an inquiry officer by issuing directions to the ECI and secretary to the state election department to take necessary steps as the complainant had not taken any step.

The court further observed that while issuing summons against Sarma and his wife, the court did not procure the attendance of the original complainant and also, it failed to record any reasons as to what basis the court was convinced about the violation of MCC by the petitioner as nothing was placed before the court.

“The cognizance was taken only on the basis of few documents (all copies) without any other supporting documents,” the Court observed as it quashed and set aside the impugned orders as well as the entire proceeding pertaining to the case against Sarma and his wife.

Besides, the court observed that in the present matter, at the time of the news telecast in Guwahati on April 10, 2019, no polling was scheduled to take place in Guwahati in the next 48 hours.

“The polling at Guwahati was scheduled on April 23, 2019 in the third phase, whereas the alleged live interview of the petitioner was telecast on April 10, 2019, and no polling was scheduled to take place on April 11, 2019 (within the silence period). That being so, the allegation in the complaint that the live interview on April 10, 2019 within 48 hours of first phase of poll is not applicable to the petitioner inasmuch as on the day of telecast there was no poll in Guwahati constituency. More so, there is no evidence on record that the said interview was live or recorded,” it observed.

“In a multi-phased election, the silence period of the last 48 hours may be on in certain constituencies while campaigning is ongoing in other constituencies. In such an event, there should not be any direct or indirect reference amounting to soliciting support for parties or candidates in the constituencies observing the silence period,” it noted.

“…It is contended by the petitioner that in a multi-phased election situation, prohibition mentioned in Section 126 of RP Act is only on advisory in nature and same has not been banned any election campaigning in the constituencies of a state where there is no polling in next 48 hours, while in some other constituencies there may be silence period in force. Therefore, Section 126 in its present form does not contemplate violation of MCC in a multi-phased election. In view of the above, a complaint filed against the petitioner is not maintainable as no offence is made out under Section 126(1)(b) of the RP Act for taking cognizance, there being no prima facie case,” it observed.

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