New Delhi, Sep 21 (PTI) A Delhi court on Monday paved the way for rehearing of a plea seeking registration of an FIR on inclusion of Congress leader Sonia Gandhi’s name in the electoral roll three years before she acquired Indian citizenship in 1983.
A sessions court set aside a magistrate’s order refusing to order a probe into the allegations against Gandhi.
The order of Special Judge Vishal Gogne came on a revision plea against the magisterial court’s order on a complaint filed by advocate Vikas Tripathi, vice-president of the Central Delhi Court Bar Association of the Rouse Avenue courts.
Pronouncing substantive portions of the order orally, the judge said, “An order of the court must maintain fidelity towards the law, and not flirt with facts. This court finds itself unravelling the impugned order rendered by the Additional Chief Judicial Magistrate (ACJM) on this yardstick.” The judge said Tripathi’s complaint was that Sonia Gandhi’s name was unlawfully entered in the electoral roll of New Delhi Parliamentary Constituency in 1980, whereas she attained Indian citizenship only in 1983, and although the name was deleted in 1982, it was re-entered in 1983.
“It alleged that even this re-entry was before she acquired citizenship on April 30, 1983,” the judge noted.
Gogne said the magistrate’s order dismissed the complaint, stating that it was based on bald assertions, unaccompanied by essential particulars of cheating and forgery, and based on a photocopy of the photocopy of the uncertified electoral roll in 1980.
“The sanctity of the electoral roll is an article of faith for every citizen in a parliamentary democracy. The mightiest in the land may only be a voter or citizen at par with others less powerful,” the judge said.
“Any allegation of tampering with the electoral rolls, fraudulent inclusion of the name of a voter, inclusion of the name of a non-citizen, and possible use of false declarations or documents merits a reasoned order to determine whether allegations relating to cheating and forgery have been disclosed,” Gogne said.
He said the ACJM’s order recorded no discussion on the sequence in which Sonia Gandhi’s name was included, deleted, and included again in the electoral roll in 1980, 1982 and 1983 respectively.
Rather than finding whether these allegations constituted a cognisable offence, the impugned order simply branded the complaint as lacking essential particulars, the judge said, adding that an extract of the electoral roll was casually dismissed as being “a photocopy of the photocopy of the alleged extract of the uncertified roll of 1980.” He said, “The limited prayer before the ACJM was to consider the extract of the electoral roll and other allegations as being adequate, or otherwise direct an investigation for the allegedly fraudulent entry of the name of Sonia Gandhi.” In effect, it is a non-speaking order on the question of disclosure of a cognisable offence, Gogne said.
The judge said the order “suffers from a manifest error in law” when it comes to compliance with Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita — which empowers a magistrate to order police investigation into a cognisable offence — by “not hearing the submissions of the police officer concerned and non-calling of a status report from the police station concerned”.
He said the magistrate failed to consider the twin options permissible in law: one, directing the registration of an FIR; and two, the conduct of proceedings under Section 223 of the BNSS, which governs the magistrate taking cognisance of an offence and examining the complainant and witnesses.
Regarding the issue of citizenship, the judge said the ACJM had only to decide whether the allegations disclosed a cognisable offence and whether it called for a police investigation. However, he conflated this with the jurisdiction of the Central government and digressed towards the issue of citizenship.
The court said it was unable to fathom why the ACJM considered the Election Commission’s powers to include or exclude persons from electoral rolls to be a bar on the police to prove fraudulent inclusion of names in electoral rolls or the use of false documents.
The judge said the magisterial court did not perform its “core function” of discerning the disclosure of a cognisable offence.
“The court finds the four pillars of reasoning adopted in the impugned order to be perverse and improper, as well as an incorrect appreciation of law and allegations. In fact, the impugned order is liable to be set aside,” the judge said.
He remanded the matter back to the magisterial court to “pass a speaking order in light of the specific requirements of 175(3) of the BNSS” and directed fresh hearing of the complainant’s arguments.
The matter has been posted for further hearing on September 29. PTI SKM MNR SJK SKM RUK RUK
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