Chapter IX-A of the Indian Penal Code and was inserted in the Code by the Indian Elections Offences and Enquiries Act (Act 39 of 1920). The chapter consists of nine sections. The first Section 171A defines ‘candidate’ and ‘electoral right’. Section 171B defines the offence of ‘bribery’; Section 171C that of ‘undue influence at elections’ and Section 171D that of personation at elections. Section 171E, then prescribes punishment for bribery and Section 171F deals with election. Section 171G deals with false statement in connection with an, election, Section 171H with illegal payments in connection with an election and Section 171-I deals with punishment for failure to keep election accounts.
From the whole scheme of this chapter it will be clear that it provides for the punishment of malpractices in connection with elections and attempts to safeguard the purity of the franchises. Then, the very idea of personation connotes knowledge of or advertence to the act of pretending to be some other person.
(1) DEFINITIONS OF “CANDIDATE” & “ELECTORAL RIGHT”
“Candidate” means a person who has been nominated as a candidate at any election. This definition of ‘candidate’ is limited for the purposes of this Chapter. The Chapter covers any candidate who has been nominated for any election including president of India to member of a village panchayat.
“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. Electoral right is limited to the rights of candidate or rights of the voters.
As far as, rights of the candidate is concerned, he has three rights, namely he can stand for the election or has choice of not to stand for the election and the third right is to withdraw from being a candidate. On the other hand, every qualified voter has two rights, namely, to vote to a candidate of his choice or to refrain from voting at an election. No one can compel any person to stand or not to stand or to withdraw from candidature from election and voter has right to vote or not to vote in any of the election.
The Chapter deals with all offences relating to election for any of the election including president to village panchayat.
The freedom of election is twofold; (i) 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.[1]
(2) OFFENCE OF BRIBERY AND UNDUE INFLUENCE AT ELECTION
(2.1) DEFINITION OF BRIBERY
Section 171B defines bribery in wider sense but restricted its application to this chapter only. It says that a declaration of public policy or a promise of public action shall not be an offence under this section. A person commits the offence of bribery, who –
(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.
A person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be deemed to give a gratification.
A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification.
A person who accepts a gratification as a motive for doing what 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.
According to definition of bribery under section 171B, the giving or acceptance of a gratification either as a motive or as a reward to any person, to induce him to stand or not to stand as a candidate or to withdraw from the contest or to vote or not to vote at an election. It also includes offer or an agreement to give or offer or attempts to procure a gratification for any person.
(i) Mere allegation of distribution of goggles among voter by returned candidate without further details as to place, time and persons to whom distributed vague.[2]
(ii) Money paid by a candidate to a club to pay off its debts and to retain its premises with the object of inducing its member to vote in his favour is bribe.[3]
(iii) Paying travelling expenses of a voter on condition that he must vote for the payer is bribe.[4]
(iv) Payment to deter a voter from voting is bribe.[5]
Gratification could only be given to an individual.- The court held that a person shall not be held for any act, which is prohibited in official capacity, but had been done in individual capacity. The case dealt with an offer made by the Deputy Chief Minister to the Republican Party of India (RPI) whereby it would get a share in the political power in lieu of its’ support to BJP – Shiv Sena alliance in election. The Bombay High Court held that the gratification could only be given to an individual. As the aforesaid offer was made to RPI, it was not a gratification under Section 171-B.[6]
There was nothing in offer which indicated that any influence was being brought on any individual with respect to exercising his electoral right. Seeking support of a political party, during course of election and making an offer to political party of some share in political power for giving such support could not be called as giving gratification as contemplated under Section 171B.
(2.2) PUNISHMENT FOR BRIBERY
Section 171E prescribed punishment for bribery for the purpose of election only. It is not a punishment for any case of bribery. It says whoever commits the offence of bribery shall be punished with imprisonment up to one year, or with fine, or with both.
Further, it provides that bribery by treating shall be punished with fine only. ‘Treating’ means that form of bribery where the gratification consists in food, drink, entertainment, or provision.
Treating in common language means entertaining a person, which amounts to bribery. But in the case of election, the giving of refreshment, food, drink, entertainment or any similar form of welcoming or treating voters in general without any compulsion or agreement is not bribery under section 171E.
To constitute offence of bribery it was to be established that licence granted to private limited company with specific purposes of obtaining vote of an electors for respondent, which could not prove in lack of evidence, no case of commission of bribery could be established.[7]
(2.3) UNDUE INFLUENCE AT ELECTIONS
Section 171C defines the offence of undue influence at election. It says that whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election.
A person shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, who —
(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.
A declaration of public policy or a promise of public action or the mere exercise of a legal right without intent to interfere with an electoral right shall not be deemed to be interference within the meaning of this section.
(2.4) THE SCOPE OF SECTION 171C (UNDUE INFLUENCE)
The Supreme Court held that the gist of undue influence at an election consists in (i) voluntary interference or attempt at interference (ii) 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 of undue influence 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-section (2) of Section 171C shows what the nature of undue influence is though of course it does not cut down the generality of the provisions contained in Sub-section (1).[8]
What is contained in Sub-section (2) of Section 171C 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 is 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 Section 171C shows, the mere exercise of a legal right without intent to interfere with an electoral right would not be undue influence.
Where any threat is held out to any candidate or voter or any person in whom a candidate or voter is interested and the threat is of injury of any kind, that would amount 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.
(2.5) PUNISHMENT FOR UNDUE INFLUENCE
Section 171F of IPC prescribed punishment for the person who commits the offence of undue influence at election. It says that whoever commits the offence of undue influence at an election shall be punished with imprisonment up to one year or with fine, or with both.
The Supreme Court held that distribution of pamphlet by registered post as also distribution in Central Hall held to be an attempt to interfere with free exercise of right of vote.[9] There was no evidence to prove who has done it. As far as effect on result of election is concern, petitioners failed to prove that publication and distribution of pamphlet materially affected result of their election. The court has observed that vast majority of electors casted vote according to their own personal wish or according to mandate of their party.
(3) OFFENCE OF PERSONATION AT ELECTION
(3.1) PERSONATION AT ELECTIONS
Section 171D of IPC defines offence of personation at election. It says that whoever at an election applies for a voting paper or votes in the name of any other person, whether living or dead, or in a fictitious name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way, commits the offence or personation at an election.
(3.2) MENS REA IS NECESSARY FOR PERSONATION
The guilty intent was not necessarily prohibited by common or statute law, but there must be the intention to do something wrong. The question before the Madhya Pradesh High Court was raised whether the prosecution was bound to prove the guilty intent (mens rea) in cases of personation at an election. The court responding in affirmative held that unless the statute, either or by necessary implication, rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind.[10]
It did not involve proof that the accused knew that he was committing a criminal offence. It has always been accepted as an axiomatic principle that ignorance of the law was no excuse. The court upheld acquittal of the respondent as he honestly believed that his father could authorize him to cast his vote. The court held that mens rea is a constituent part of an offence under Section 171D and that it was not proved in this case.[11]
In another case, the Madras High Court held that unless there are corruption, and a bad intention in personating, it is not an offence. If it is done under an honest belief that the man is properly there for the purpose of voting, it was held in several cases that no offence had been committed.[12] The presence or absence of mens rea must be tested on ordinary principles and in the light of common sense.
In fact, it implies false pretence. The only intention which is to be found in the section and which is the mental element requisite to a conviction is the intention to personate at the election for one who is a voter. It will, thus be seen that the statute does not rule out mens rea as a constituent part of the crime and the defendant cannot be found guilty of an offence under Section 171D, unless he is proved to have a guilty mind.
(3.3) PUNISHMENT FOR PERSONATION AT AN ELECTION
Section 171F of IPC prescribed punishment for the personation at an election. It is to be noted that this personation is limited to the personation at an election. It says that whoever commits the offence of personation at an election shall be punished with imprisonment up to one year or with fine or with both.
(4) OFFENCE BY CANDIDATES RELATING TO ELECTION
(4.1) FALSE STATEMENT IN CONNECTION WITH AN ELECTION
Section 171G made an offence if a candidate makes false statement in connection with an election. It says that whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine.
It is clear that in pursuit of purity of elections the legislature frowned upon attempts to assail such purity by means of false statements relating to the personal character and conduct of a candidate and made such acts punishable there under. But the fact that making of such a false statement is a distinct offence Under Section 171G does not and cannot mean that it cannot take the graver form of undue influence punishable under Section 171F. The false statement may be of such virulent, vulgar or scurrilous character that it would either deter or tend to deter voters from supporting that candidate whom they would have supported in the free exercise of their electoral right but for their being affected or attempted to be affected by the maker or the publisher of such a statement. Therefore it is the degree of gravity of the allegation which will be the determining factor in deciding whether it falls under Section 171C or Section 171G.[13]
If the allegation though false and relating to a candidate’s personal character or conduct, made with the intent to affect the result of an election, does not amount to interference or attempt at such interference, the offence would be the lesser one. If, on the other hand, it amounts to interference or an attempt to interfere, it would be the graver offence under Section 171F, read with Section 171C.
(4.2) CONSEQUENCE OF DEFAMATORY STATEMENT
It was held that for the purpose of section 171G of IPC, something must be stated as a fact and not as a general imputation or as a matter of opinion. In that case, a candidate was prosecuted under section 500 for defamation, and he took the plea that he should have been prosecuted under section 171G of IPC and that this could not be done without the sanction of Government, which was not obtained. In that case a defamatory document was published with respect to the candidate. That document contained only one or two statements of fact, but the bulk of it consisted of mere general expression, and it was held that a prosecution under section 500 of IPC was not barred. But one of the statements which was held not to be a statement of fact was this, namely, they are misappropriate Government money by committing forgeries. The High Court held that the offending document on the whole was one to which section 171G could not be applied. We are of opinion that the view taken by the High Court, at any rate, with respect to the allegation that the candidate in question was misappropriating Government money was not a statement of fact is not correct. [14]
In responding to the question whether the prosecution should have been under section 500 or under section 171G of IPC. The Madras High Court held that the statement that the candidate had committed fraud in respect of money in the fund office and was removed by the general body or by the department, was a statement of fact.[15] In another case, the statement there was that the candidate was a leper, and the High Court held that this was not a case which fell within section 171-G but no reasons were given for the view. It seems to us that this case does not help the appellant for the allegation that a person is a leper cannot be said to relate to personal character or conduct of the candidate; it only mentions a physical defect.[16]
A printed notice was published containing a series of rhetorical questions viz. whether it was true or not that the candidate used to receive money and withdraw from contest in elections. The exact words used are not to be found in the report and the High Court seems to have held that as no particulars were mentioned it would not be a statement of fact. It seems to us however that if an allegation is made that a candidate had withdrawn from context at previous elections after taking money that would be a statement of fact and the view taken by the High Court is not correct.[17]
An appeal filed against decision of setting aside election in which appellant secured highest votes election set aside on complaint on respondent who secured second highest votes respondent alleged that appellant published some false statements in relation to conduct and character of respondent, which prejudice respondents election on enquiry allegations imposed by respondent found true on that basis election of appellant held rightly set aside by High Court and appeal accordingly dismissed.[18]
(4.3) ILLEGAL PAYMENTS IN CONNECTION WITH AN ELECTION
According to section 171H, whoever without the general or special authority in writing of a candidate incurs or authorizes expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine up to Rs. 500.
Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate.
(4.3) FAILURE TO KEEP ELECTION ACCOUNTS
According to section 171-I, whoever being required by any law for the time being in force or any rule having the force of law to keep accounts of expenses incurred at or in connection with an election fails to keep such accounts shall be punished with fine up to Rs. 500.
This section penalise the failure of candidate to keep accounts of expenses incurred at an election as required by law or any rule having the force of law. Case under this section may be filed on the complaint of election commission. Police cannot take cognizance of this offence.
F SUMMARY OF OFFENCES RELATING TO ELECTION
| Offence | Punishment | Powers of police |
| Bribery at the time of election [S.171B] | One year’ imprisonment /fine/ both [S.171E] | Non-Cognizable-bailable |
| Undue influence [S.171C] | One year’ imprisonment /fine/ both [S.171F] | Non-Cognizable-bailable |
| Personation at election [S.171D] | One year’ imprisonment /fine /both [S.171F] | Cognizable-bailable |
| False statement in connection with election [S.171G] | Fine. [S.171G] | Non-Cognizable-bailable |
| Illegal payments in connection with an election [S.171H] | Fine up to Rs. 500. [S.171H] | Non-Cognizable-bailable |
| Failure to keep election account [S.171-I] | Fine up to Rs. 500. [S.171-I] | Non-Cognizable-bailable |
* * * * *
[1] S.K. Singh v. V.V. Giri, (1971) 2 SCR 197.
[2] Pannalal S.S. v. Hitendra Vishnu Thakur, 1996 (4) Bom CR 74 : 1996 (98) BOMLR 218.
[3] Pillai v. Dangalli, AIR 1942 Rang 52.
[4] Cooper v. slade, (1857) 6 HIC 746.
[5] Warcester, (1810) C and D 183.
[6] Deepak Ganpatrao Salunke v. Governor of Maharashtra, 1999 (1) ALLMR 263 : 1999 CriLJ 1224.
[7] S.K. Singh v. V.V. Giri, AIR 1970 SC 2097 : (1970) 2 SCC 567
[8] Baburao Patel v. Dr. Zakir Hussain, (1968) 2 SCR 133.
[9] S.K. Singh v. V.V. Giri, AIR 1970 SC 2097 : (1970) 2 SCC 567
[10] Lord Chief Justice of England in Brend v. Wood 1946 110 JP 317.
[11] The State v. Siddhannath Gangaram, AIR 1956 MP 241, 1956 CriLJ 1327.
[12] In re Venkayya, 53 Mad 444 : AIR 1930 Mad 246.
[13] S.K. Singh v. V.V. Giri, AIR 1970 SC 2097 : (1970) 2 SCC 567
[14] A. S. Radhakrishna Ayyar v. Emperor, AIR 1932 Mad 511.
[15] Narayanaswamy Naichker v. D. Devaraja Mudaliar, AIR 1936 Mad 360.
[16] Hajee Mohammad Kadir Sheriff v. Rahimatullah Sahib, AIR 1940 Mad 230.
[17] Shanmugam v. Thangavelu, AIR 1958 Mad 240.
[18] Kumara Nand v. Brijmohan Lal Sharma, AIR 1967 SC 808 : (1967) 2 SCR 127.