# Arvind Kejriwal v. State of U.P. & Anr

- **Citation:** (2023) 1 ILRA 496
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-16
- **Case number:** Application U/S 482 No. 42 of 2023
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kejriwal-v-state-of-u-p-anr-49654
- **Pages:** 17

## Headnote

A. Constitution of India,1950 - Article
19(1)(a)
-
Freedom
of
speech
and
expression - Protection, extent of -
Reasonable restriction - Test to determine
- Extent of protection of speech would
depend on whether, such speech would
constitute a propagation of ideas or would
have any social value. If the answer to the
said question is in affirmative, such
speech would be protected under Article
19 (1) (a); if the answer is in native, such
speech would not be protected under
Article 19 (1) (a). (Para 22)
B. Criminal Law - Representation of the
People Act, 1951 - Section 125 - Offence
- Elements - Knowledge and Mens rea -
Allegation against a Chief Minister of
making the appeal for vote on the basis of
religion
and
promoting
the
enmity
between the classes of people; Voters of
Congress was termed as 'Gaddar of the
country' - How far constitute offence -
Held, if the feelings of enmity or hatred
between different classes of citizens of
India is promoted, that shall be treated as
an
offence
under
such
section
and
punishable u/s 125 of the Act, 1951. (Para
24 and 25)
C. Criminal Law - Criminal Procedure
Code, 1973 - Section 482 - Scope of
interference - Inherent power of High
Court - Held, the power enshrined u/s 482
Cr.P.C. is an inherent power to secure the
ends of justice or to prevent any abuse of
the process of any Court. This is an extraordinary power of the High Court like
Article 226 of the Constitution of India but
at the same time, the Court must be much
careful and cautious before invoking this
power to ensure that if this power is not
invoked,
the
litigant
would
suffer
irreparable loss and injury and it would be
manifest injustice and abuse of the
process of the Law. (Para 27)
Application dismissed. (E-1)
List of Cases cited:-

## Text

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496 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 1 ILRA 496
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.01.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482 No. 42 of 2023

Arvind Kejriwal ...Petitioner
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Petitioner:
Mahmood Alam, Anjani Kumar Mishra,
Manmohan
Singh,
Nadeem
Murtaza,
Sheeran Mohiuddin Alavi

Counsel for the Opposite Parties:
G.A.

A. Constitution of India,1950 - Article
19(1)(a)
-
Freedom
of
speech
and
expression - Protection, extent of -
Reasonable restriction - Test to determine
- Extent of protection of speech would
depend on whether, such speech would
constitute a propagation of ideas or would
have any social value. If the answer to the
said question is in affirmative, such
speech would be protected under Article
19 (1) (a); if the answer is in native, such
speech would not be protected under
Article 19 (1) (a). (Para 22)
B. Criminal Law - Representation of the
People Act, 1951 - Section 125 - Offence
- Elements - Knowledge and Mens rea -
Allegation against a Chief Minister of
making the appeal for vote on the basis of
religion
and
promoting
the
enmity
between the classes of people; Voters of
Congress was termed as 'Gaddar of the
country' - How far constitute offence -
Held, if the feelings of enmity or hatred
between different classes of citizens of
India is promoted, that shall be treated as
an
offence
under
such
section
and
punishable u/s 125 of the Act, 1951. (Para
24 and 25)
C. Criminal Law - Criminal Procedure
Code, 1973 - Section 482 - Scope of
interference - Inherent power of High
Court - Held, the power enshrined u/s 482
Cr.P.C. is an inherent power to secure the
ends of justice or to prevent any abuse of
the process of any Court. This is an extraordinary power of the High Court like
Article 226 of the Constitution of India but
at the same time, the Court must be much
careful and cautious before invoking this
power to ensure that if this power is not
invoked,
the
litigant
would
suffer
irreparable loss and injury and it would be
manifest injustice and abuse of the
process of the Law. (Para 27)
Application dismissed. (E-1)
List of Cases cited:-
1. Smt. Amrawati & anr. Vs St. of U.P., 2005;
Cr.L.J.755
2. Lal Kamlendra Pratap Singh Vs St. of U. P. &
ors..; (2009) 4 SCC 437
3. Ramakant Mayekar Vs Celine D'Silva (Smt.);
(1996) 1 SCC 399
4.
Rajendra
Singh
Bhandari
Vs
St.
of
Uttarakhand & anr.; 2020 SCC OnLine Utt 551
5. St. of Har. Vs Bhajan Lal, 1992 Supp (1) SCC 335
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri H.G.S. Parihar, learned
Senior Advocate, assisted by Sri Nadeem
Murtaza, Sri Mahmood Alam, Sri Man
Mohan Singh, learned counsel for the
petitioner and Sri Alok Saran along with Sri
Rajesh Kumar Singh, learned Additional
Government Advocates for the State.

2. By means of this application, the
applicant
has
made
following
main
prayers:-
1 All. Arvind Kejriwal Vs. State of U.P. & Anr.
497

"Wherefore, it is most respectfully
prayed that this Hon'ble may graciously be
pleased to:

i) Quash and set aside the
impugned
revisional
order
dated
21.10.2022 passed by the Ld. Court of
Sessions Judge, Sultanpur in Criminal
Revision No.219 of 2022 (Arvind Kejriwal
vs State of UP) arising out of Case Crime
No.608/2014 registered at Police Station
Musafirkhana, District Amethi, whereby,
the criminal revision preferred by the
Applicant has been dismissed.

ii) Quash and set aside the
impugned order dated 04.08.2022 passed
by the Ld. Court of ACJM Room No.18
(Special Judge MP/MLA), Sultanpur in
Criminal Case No. 360/2014 (State vs
Arvind Kejriwal) arising out of Case Crime
No.608/2014 registered at Police Station
Musafirkhana, District Amethi, whereby,
application of
the Applicant
seeking
discharged under Section 239 CrPC has
been dismissed."

3. Precisely, the applicant has assailed
the judgment and order dated 21.10.2022
passed by the learned Sessions Judge,
Sultanpur in criminal revision rejecting the
revision filed by the present applicant
upholding the order dated 04.08.2022
passed by the learned trial Court i.e.
Additional Chief Judicial Magistrate, Court
No.18/Special Judge, MP/MLA/Sultanpur,
who has rejected the discharge application
of the present applicant.

4.
Notably,
this
is
the
third
petition/application filed under Section 482
Cr.P.C. before this Court.

5. Before adverting to earlier orders
being passed in the petitions/ applications
filed by the present applicant under Section
482 Cr.P.C. before this Court, it would be
apt to discuss the brief facts of the present
case. One Prem Chandra, Flying Squad
Magistrate, lodged an FIR bearing Case
Crime No.608 of 2014, under Section 125
of the Representation of the People Act,
1951 (hereinafter referred to as "the Act,
1951"),
Police
Station-
Kotwali
Musafirkhana, District Amethi, alleging
inter-alia that the accused-applicant flouted
the Model Code of Conduct by making
public statement "Jo Congress ko vote
dega, mera manana hoga, desh ke saath
gaddari hogi. Bhajpa per katakch karte hue
kaha ki jo Bhajpa ko vote dega use Khuda
bhi muaf nahin karega, des ke sath gaddari
hogi". After completion of investigation,
the Investigating Officer has submitted the
charge sheet against him. Learned trial
court has taken cognizance against the
accused on 06.09.2014 under Section 125
of the Act, 1951 and summoned him.

6. The present applicant has filed a
petition under Section 482 Cr.P.C. bearing
U/S 482/378/407 No.3662 of 2015; Arvind
Kejriwal Vs. State of U.P. and Ors, seeking
prayer for quashing the entire proceedings
of Case No.360 of 2014 arisen out of Case
Crime No.608 of 2014 (supra). He has also
prayed for quashing the charge sheet,
which has been filed in the aforesaid case.
The aforesaid petition was disposed of
finally vide order dated 03.08.2015 giving
liberty to the applicant to file appropriate
application before the learned court below
taking all pleas and ground including the
ground for exemption of his personal
appearance and such application was
directed to be considered strictly in
accordance with law. For a period of four
weeks, the bailable warrant which was
issued against the present applicant was
stayed. For the convenience, the order
dated 03.08.2015 is being reproduced
hereunder:-
498 INDIAN LAW REPORTS ALLAHABAD SERIES

"Heard Shri Mahmood Alam,
learned counsel appearing on behalf of
applicant along with Shri C.L. Gupta,
Advocate
and
Shri
Rishad
Murtaza,
learned Government Advocate on behalf of
State.

By means of of the instant petition
under Section 482 Cr.P.C., the applicant
has prayed for quashing of the entire
criminal proceedings of Case No. 360 of
2014 arising out of Case Crime No. 608 of
2014,
under
Sections
125
of
the
Representation of the People Act, 1951
relating to the Police Station, Musafir
Khana, District Amethi which is pending in
the Court of Judicial Magistrate, Musafir
Khana, District Amethi. The applicant has
further
prayed
for quashing of
the
chargesheet filed in the aforesaid Case
Crime No. 608 of 2014.

The learned counsel for the
applicant, after some arguments, submits
that the applicant had sought exemption
from personal appearance by moving an
application before the Court concerned on
20.07.2015 but the same was dismissed. He
further submits that Section 317 Cr.P.C.
empowers the Court to pass appropriate
order for exemption. The learned counsel
for the applicant further submits that the
applicant intends to file an application for
discharge but in the mean time, the bailable
warrant issued against the applicant may
be kept in abeyance.

The
learned
Government
Advocate has submitted that although one
application moved on behalf of the
applicant for exemption from personal
appearance has been rejected on technical
ground but it is still open for the applicant
to move fresh application for exemption
from personal appearance on proper
grounds and he has no objection in this
regard. In case, the Court below considers
the
application
for
exemption
from
personal appearance proper, fresh order
may be passed in accordance with law. So
far
as
application
for discharge
is
concerned, the said application has not yet
been moved and therefore, no direction for
expeditious disposal thereof can be passed
at this stage.

In view of the above, the present
application is disposed of with the
observation that the grounds taken by the
applicant in the instant application under
Section 482 Cr.P.C. may be taken at
appropriate stage before the Court below
and it will be open for the learned Court
below to pass appropriate order. It is
further observed that if the applicant
applies for exemption from personal
appearance, the same shall also be
considered
by
the
Court
below
in
accordance with law.

The bailable warrant issued against
the applicant shall remain in abeyance for a
period of four weeks from today.

The
petition
stands
finally
disposed of.

Copy of this order may be
provided to the learned counsel for the
applicant within 24 hours on payment of
usual charges."

7. Perusal of the aforesaid order dated
03.08.2015 reveals that the learned counsel
for the applicant had argued that the
applicant had sought exemption from
personal
appearance
by
moving
an
application before the court concerned on
20.07.2015 but the same was dismissed.
Learned counsel further argued in such
petition that the applicant intends to file an
application for discharge, therefore, the
bailable warrant being issued against the
applicant may be kept in abeyance.

8. After rejection of the application of
the present applicant by the learned trial
1 All. Arvind Kejriwal Vs. State of U.P. & Anr.
499
court on 20.07.2015 whereby he had sought
exemption
from
personal
appearance,
another application was filed by the
applicant in compliance of the order dated
03.08.2015 passed by this Court and the
learned
court
below
rejected
such
application vide order dated 12.08.2015.
Therefore, the present applicant has filed
second petition under Section 482 Cr.P.C.
bearing U/S 482/378/407 No.4136 of 2015;
Arvind Kejriwal Vs. The State of U.P. and
Ors., with the same prayer which has been
made in the first petition filed under
Section 482 Cr.P.C. with another prayer
that the order dated 12.08.2015 whereby
the exemption application of the present
applicant had been rejected may be
quashed.

9. In the second petition, considering
the prayers of the present applicant and
noticing the fact that the present applicant
has not appeared before the learned court
below and has not filed any personal bond
with or without sureties and has filed two
applications for exemption under Section
205 Cr.P.C., which have been rejected by
orders dated 20.07.2015 and 12.08.2015
framed the question for adjudication to the
effect
that
"Whether
after
taking
cognizance and issuance of the process,
may be summons or warrant, the exemption
application under Section 205 or 317
Cr.P.C.is maintainable without personal
appearance and without furnishing bail
bonds? The aforesaid petition was disposed
of finally vide order dated 27.08.2015,
which reads as under:-

"Heard learned counsel for the
petitioner, Shri Rishad Murtza, learned
Government Advocate and perused the
record.

This petition has been filed with
the following prayers:-

(i) to quash the order dated
12.08.2015 in Criminal Case No.360 of
2014, "State of U.P. vs. Arvind Kejriwal" in
pursuance of the Charge Sheet No.122 of
2014 dated 09.07.2014 in Case Crime
No.608 of 2014, under Section 125 of the
Representation of People Act, 1951, Police
Station-Kotwali Musafirkhana, DistrictAmethi, pending before the learned Judicial
Magistrate, Musafirkhana, District-Amethi.

(ii) to stay the entire criminal
proceedings in Criminal Case No.360 of
2014, "State of U.P. vs. Arvind Kejriwal" in
pursuance of the Charge Sheet No.122 of
2014 dated 09.07.2014 in Case Crime
No.608 of 2014, under Section 125 of the
Representation of People Act, 1951, Police
Station-Kotwali Musafirkhana, DistrictAmethi, pending before the learned Judicial
Magistrate, Musafirkhana, District-Amethi,
during pendency of the present case.

(iii)
to
order
to
concerned
Hon'ble Court for deciding the pending
application of the applicant filed under the
proviso of Section 239 Cr.P.C. in Criminal
Case No.360 of 2014, "State of U.P. vs.
Arvind Kejriwal" bearing Case Crime
No.608 of 2014, under Section 125 of the
Representation of People Act, 1951, Police
Station-Kotwali Musafirkhana, DistrictAmethi, pending before the learned Judicial
Magistrate, Musafirkhana, District-Amethi.

Learned counsel for the petitioner
has submitted that the petitioner is the
Chief Minister of Delhi against whom a
case under Section 125 of Representation
of People Act has been registered. The
application for discharge under Section
239 Cr.P.C. has been moved which has not
yet been decided and the application for
personal exemption filed under Section 205
Cr.P.C. has wrongly been rejected. It has
also been submitted that the petitioner is
ready to file the undertakings before the
Court
that
whenever
his
personal
500 INDIAN LAW REPORTS ALLAHABAD SERIES
appearance is required, he shall appear
personally.

Learned counsel for the petitioner
has relied upon the provisions of Section 88
Cr.P.C., which reads as under:-

"88. Power to take bond for
appearance. When any person for whose
appearance or arrest the officer presiding
in any Court is empowered to issue a
summons or warrant, is present in such
Court, such officer may require such
person to execute a bond, with or without
sureties, for his appearance in such Court,
or any other Court to which the case may
be transferred for trial".

The
main
question
for
consideration is that whether after taking
cognizance and issuance of the process,
may be summons or warrant, the exemption
application under Section 205 or 317
Cr.P.C.is maintainable without personal
appearance and without furnishing bail
bonds?

In the present case, it is admitted
that till now the petitioner has not
appeared before the court below and has
also not filed any personal bond with or
without sureties. The application for
exemption under Section 205 Cr.P.C. was
moved, which has been rejected by order
dated 12.08.2015. The similar application
was also moved previously, which was also
rejected on 20.07.2015.

Learned counsel for the petitioner
has relied upon the judgment of this Court
rendered in Santosh Chauhan & others vs.
State of U.P. & another reported in [(2011)
(4) ALJ 121], in which, this Court has
considered the scope of Section 205 Cr.P.C.
but nowhere it has been held that without
submitting the personal bond or sureties,
the exemption under Section 205 Cr.P.C.
can be granted.

Learned counsel for the petitioner
has further relied upon the case Roitong
Singpho
vs.
Sajjan
Kumar
Agarwal
reported in AIR 2009 (NOC) 129 (GAU), in
which, the Hon'ble Gauhati High Court has
held that the Court has to take into account
the magnitude of sufferings, which a
particular accused person may have to
bear with, in order to make himself present
in the Court and the discretion must be
exercised judiciously. The Gauhati High
Court as well as Allahabad High Court
have relied upon the case M/s. Bhasker
Industries Ltd. vs. M/s. Bhiwani Denim and
Apparels Ltd and others reported in AIR
2001 (SC) 3625.

In the case of M/s. Bhasker
Industries Ltd. vs. M/s. Bhiwani Denim and
Apparels Ltd and others reported in AIR
2001 (SC) 3625, the Hon'ble Apex Court
has considered the scope of Sections 205
(2), 251 and 317 Cr.P.C. and has held in
paras-12, 13, 14, 15, 16, 17 and 19 as
under:-

"12. We cannot part with this
matter without advertising to the plea made
by the second accused before the trial court
for
exempting
him
from
personal
appearance. He highlighted two factors
while seeking such exemption. First is that
the offence under Section 138 of the
Negotiable Instruments Act is relatively not
a serious offence as could be seen from the
fact that the legislature made it only a
summons case. Second is, the insistence on
the physical presence of the accused in the
case would cause substantial hardships and
sufferings to him as he is a resident of
Haryana. To undertake a long journey to
reach Bhopal for making his physical
presence in the court involves, apart from
great hardships, much expenses also,
contended the counsel. He submitted that
the advantages the court gets on account of
the presence of the accused are far less
than the tribulations the accused has to
suffer to make such presence in certain
1 All. Arvind Kejriwal Vs. State of U.P. & Anr.
501
situations and hence the court should
consider whether such advantages can be
achieved by other measures. Therefore, he
relied on Section 317 of the Code. It reads
thus:

"317 provision for inquiries and
trial being held in the absence of accused
in certain cases.- (1) At any stage of an
inquiry or trial under this Code, if the
Judge or Magistrate is satisfied, for
reasons to be recorded, that the personal
attendance of the accused before the Court
is not necessary in the interests of justice,
or that the accused persistently disturbs the
proceedings in Court, the Judge or
Magistrate
may,
if
the
accused
is
represented by a pleader, dispense with his
attendance and proceed with such inquiry
or trial in his absence, and may, at any
subsequent stage of the proceedings, direct
the personal attendance of such accused.

(2) If the accused in any such
case is not represented by a pleader, or if
the Judge or Magistrate considers his
personal attendance necessary, he may, if
he thinks fit and for reasons to be re corded
by him, either adjourn such inquiry or trial,
or order that the case of such accused be
taken up for tried separately."

13. Sub-section (1) envisages two
exigencies when the court can proceed with
the trial proceeding in a criminal case after
dispensing with the personal attendance of
an accused. We are not concerned with one
of those exigencies i.e. when the accused
persistently disturbs the proceedings. Here
we need consider only the other exigency. If
a court is satisfied that in the interest or
justice the personal attendance of an
accused before it need not be insisted on,
then the court has the power to dispense
with the attendance of that accused. In this
context a reference to Section 273 of the
Code is useful. It says that "except as
otherwise expressly provided, all evidence
taken in the course of the trial or other
proceeding shall be taken in presence of the
accused or, when his personal attendance is
dispensed with, in the presence of his
pleader." If a court feels that insisting on
the personal attendance of an accused in a
particular case would be too harsh on
account of a variety of reasons, can't the
court afford relief to such an accused in the
matter
of
facing
the
prosecution
proceedings?

14. The normal rule is that the
evidence shall be taken in the presence of
the accused. However, even in the absence
of the accused such evidence can be taken
but then his counsel must be presence in the
court, provided he has been granted
exemption from attending the court. The
concern of the criminal court should
primarily be the administration of criminal
justice. For that purpose the proceedings of
the court in the case should register
progress. Presence of the accused in the
court is not for marking his attendance just
for the sake of seeking him in the court. It is
to enable the court to proceed with the
trial. If the progress of the trial can be
achieved even in the absence of the accused
the court can certainly take into account
the magnitude of the sufferings which a
particular accused person may have to
bear with in order to make himself present

15.
These
are
days
when
prosecutions for the offence under Section
138 are galloping up in criminal courts.
Due
to
the
increase
of
inter-State
transactions through the facilities of the
banks it is not uncommon that when
prosecutions are instituted in one State the
accused might belong to a different State,
sometimes a far distant State. Not very
rarely such accused would be ladies also.
For prosecution under Section 138 of the
NI Act the trial should be that of summons
case. When a magistrate feels that
502 INDIAN LAW REPORTS ALLAHABAD SERIES
insistence of personal attendance of the
accused in a summons case, in a particular
situation, would inflict enormous hardship
and cost to a particular accused, it is open
to the magistrate to consider how he can
relieve such an accused of the great
hardships, without causing prejudice to the
prosecution proceedings.

16.
Section
251
is
the
commencing provision in Chapter XX of the
Code which deals with trial of summons
cases by magistrates. It enjoins on the
court to ask the accused whether he pleads
guilty when the "accused appears or is
brought
before
the
magistrate".
The
appearance envisaged therein can either be
by personal attendance of the accused or
through
his
advocate.
This
can
be
understood from Section 205(1) of the Code
which says that "whenever a magistrate
issues a summons, he may, if he sees reason
so to do, dispense with the personal
attendance of the accused and permit him
to appear by his pleader."

17. Thus, in appropriate cases the
magistrate can allow an accused to make
even the first appearance through a
counsel. The magistrate is empowered to
record the plea of the accused even when
his counsel makes such plea on behalf of
the accused in a case where the personal
appearance of the accused is dispensed
with. Section 317 of the Code has to be
viewed in the above perspective as it
empowers the court to dispense with the
personal
attendance
of
the
accused
(provided he is represented by a counsel in
that case) even for proceeding with the
further steps in the case. However, one
precaution which the court should take in
such a situation is that the said benefit need
be granted only to an accused who gives an
undertaking to the satisfaction of the court
that he would not dispute his identity as the
particular accused in the case, and that a
counsel on his behalf would be present in
court and that he has no objection in taking
evidence in his absence. This precaution is
necessary for the further progress of the
proceedings including examination of the
witnesses.

19. The position, therefore, bogs
down to this: It is within the powers of a
magistrate and in his judicial discretion to
dispense with the personal appearance of
an accused either throughout or at any
particular stage of such proceedings in a
summons case, if the magistrate finds that
insistence of his personal presence would
itself
inflict
enormous
suffering
or
tribulations to him, and the comparative
advantage would be less. Such discretion
need be exercised only in rare instances
where due to the far distance at which the
accused resides or carries on business or
on account of any physical or other good
reasons the magistrate feels that dispensing
with the personal attendance of the accused
would only be in the interests of justice.
However, the magistrate who grants such
benefit to the accused must take the
precautions enumerated above, as a matter
of course. We may reiterate that when an
accused makes an application to a
magistrate through his duly authorised
counsel praying for affording the benefit of
his personal presence being dispensed with
the magistrate can consider all aspects and
pass appropriate orders thereon before
proceeding further."

I have gone through the judgment
and considered the law laid down by the
Hon'ble Apex Court in the aforesaid case.
The
aforesaid
case
relates
to
the
proceedings under Section 138 N.I. Act,
which is a summon case, while in the
present case, the charge-sheet has been
filed against the petitioner for the offence
punishable
under
Section
125
of
Representation of People Act, 1951 and the
1 All. Arvind Kejriwal Vs. State of U.P. & Anr.
503
offence punishable under Section 125 of
Representation of People Act is punishable
with a term of three years or with fine or
with both. Therefore in view of the
provisions of Section 2 (x) of Cr.P.C., it is a
warrant
case
because
the
term
of
imprisonment is exceeding two years. It is
not disputed that the provisions of Code of
Criminal
Procedure
are
applicable
regarding the offence punishable under the
Representation of People Act, 1951.

As far as the provisions of Section
88 Cr.P.C. are concerned, as quoted above,
such provisions can be availed only in case
the person for whose appearance or arrest
the summon or warrant has been issued to
present in such Court. Section 88 Cr.P.C.
also does not speak to exempt the accused
without executing the bond with or without
sureties for his appearance in the Court. In
view of the provisions of Section 90 Cr.P.C.,
this provisions is also applicable only to
every summon and every warrant of arrest
issued under this Code. Admittedly, the
petitioner has not yet appeared personally
before the Court. Therefore, he cannot get
the benefit of Section 88 Cr.P.C.

Article 14 of the Constitution of
India provides equality before the law and
equal protection of laws. When the
Constitution has not distinguished between
the powerful and powerless persons, then
certainly the courts also cannot grant any
special concession to any powerful person
like in this case where the petitioner is the
Chief Minister of N.C.T. Delhi. Law is
equal for all and equal protection has to be
granted to all. There is no such provision in
the Code of Criminal Procedure which
provides that the trial of warrant case can
proceed even in the absence of the accused
or without his appearing personally and
submitting the bail bonds. It is not disputed
that on the subsequent dates of hearing, the
personal appearance of the accused may be
exempted if sufficient cause is shown
provided the accused is represented by a
pleader. But at the same time, the Code of
Criminal Procedure empowers the Trial
Court to direct the personal attendance of
such

In the present case, the First
Information Report was lodged against the
petitioner regarding the offence punishable
under Section 125 of Representation of
People Act and after the investigation, the
charge-sheet has been filed against him for
the offence punishable under Section 125 of
Representation of People Act. Section 125
of Representation of People Act, 1951 reads
as under:-

"125, Promoting enmity between
classes in connection with election. Any
person who in connection with an election
under this Act promotes or attempts to
promote on grounds of religion, race, caste,
community or language, feelings of enmity
or hatred, between different classes of the
citizens of India shall be punishable with
imprisonment for a term which may extend
to three years, or with fine, or with both."

The present case relates to the
alleged speech of the petitioner on
02.05.2014 in connection with an election
which allegedly attempts to promote
feelings of enmity or hatred between
different classes of the citizens of India. The
politicians are required to observe more
caution in their speeches as they have to
rule the country and they should promote
the
spirit
of
common
brotherhood,
fraternity and harmony amongst all the
people of India transcending religious,
linguistic
and
regional
or
sectional
diversities. The politicians as a citizen of
India have also to abide by fundamental
duties as provided in Article 51-A of the
Constitution of India, apart from the
restrictions and guidelines imposed by
Representation
of
People Act,
1951,
504 INDIAN LAW REPORTS ALLAHABAD SERIES
because
they
are
not
above
the
Constitution.

But what we are experiencing
now a days is that some of the politicians
have no control over their fire-brand
speeches with a view to attract or misguide
the voters in their favour. Such tendency
should be discontinued because the public
of India has now become much more aware
about the real truth. The politicians must
use the Parliamentary Language. However,
these observations shall not affect the
merits of the present case.

The
procedure
for
trial
of
warrant
case
by
the
Magistrate
is
contained in Chapter-XIX of the Code.
Section 238 Cr.P.C. Specifically provides
that when in any warrant case instituted on
a police report, the accused appears or
brought before the Magistrate, on the
commencement of trial, the provisions of
Section 207 Cr.P.C. shall be complied. The
language of the aforesaid provision of
Section 238 Cr.P.C. also envisaged that
either the accused should appear or he
should be brought before the Magistrate.
This provision also does not classify that on
the commencement of warrant trial, the
accused has liberty to appear through
counsel. Because it is a warrant trial,
therefore, the accused has to appear in the
Court and the accused cannot claim
exemption under Section 205 Cr.P.C. till he
has furnished bonds with or without
sureties as per the direction of the Trial
Court.

The question whether after taking
cognizance and issuance of the process,
may be summon or warrant, the exemption
application under Section 205 or under
Section 317 Cr.P.C. is maintainable without
personal
appearance
and
without
furnishing bail bonds is, therefore, decided
accordingly that in case of an accused is
warrant trial, the provisions of Section 205
or Section 317 Cr.P.C. will not apply unless
the accused has been granted bail and he
has furnished bail bonds.

This petition has been filed under
Section 482 Cr.P.C.. The scope of 482
Cr.P.C. has been considered by Hon'ble the
Apex Court in various judgments.

The power under Section 482
Cr.P.C. is not to be exercised in a routine
manner, but it is for limited purposes,
namely, to give effect to any order under
the Code, or to prevent abuse of process of
any Court or otherwise to secure ends of
justice. Time and again, Apex Court and
various High Courts, including ours one,
have reminded when exercise of power
under Section 482 Cr.P.C. would be
justified, which cannot be placed in straight
jacket formula, but one thing is very clear
that it should not preampt a trial and
cannot be used in a routine manner so as to
cut short the entire process of trial before
the Courts below. If from a bare perusal of
first information report or complaint, it is
evident that it does not disclose any offence
at all or it is frivolous, collusive or
oppressive from the face of it, the Court
may exercise its inherent power under
Section 482 Cr.P.C. but it should be
exercised sparingly. This will not include as
to whether prosecution is likely to establish
its case or not, whether the evidence in
question is reliable or not or whether on a
reasonable appreciation of it, accusation
would not be sustained, or the other
circumstances, which would not justify
exercise of jurisdiction under Section 482
Cr.P.C. I need not go into various aspects
in detail but it would be suffice to refer a
few recent authorities dealing all these
matters in detail, namely, State of Haryana
and others Vs. Ch. Bhajan Lal and others
1992 Supp (1) SCC 335, Popular Muthiah
Vs. State represented by Inspector of Police
(2006) 7 SCC 296, Hamida vs. Rashid @
1 All. Arvind Kejriwal Vs. State of U.P. & Anr.
505
Rasheed and Ors. (2008) 1 SCC 474, Dr.
Monica Kumar and Anr. vs. State of U.P.
and Ors. (2008) 8 SCC 781, M.N. Ojha and
Ors. Vs. Alok Kumar Srivastav and Anr.
(2009) 9 SCC 682, State of A.P. vs.
Gourishetty Mahesh and Ors. JT 2010 (6)
SC 588 and Iridium India Telecom Ltd. Vs.
Motorola Incorporated and Ors. 2011 (1)
SCC 74.

In Lee Kun Hee and others Vs.
State of U.P. and others JT 2012 (2) SC
237, it was reiterated that Court in exercise
of its jurisdiction under Section 482 Cr.P.C.
cannot go into the truth or otherwise of the
allegations and appreciate evidence, if any,
available on record. Interference would be
justified only when a clear case of such
interference is made out. Frequent and
uncalled
interference
even
at
the
preliminary stage by High Court may result
in causing obstruction in the progress of
inquiry in a criminal case which may not
be in public interest. It, however, may not
be doubted, if on the face of it, either from
the first information report or complaint, it
is evident that allegation are so absurd and
inherently improbable on the basis of which
no fair-minded and informed observer can
ever reach a just and proper conclusion as
to the existence of sufficient grounds for
proceeding, in such cases refusal to
exercise jurisdiction may equally result in
injustice, more particularly, in cases, where
the complainant sets the criminal law in
motion with a view to exert pressure and
harass the persons arrayed as accused in
the complaint.

However, in this matter, after
investigation, Police has found a prima
facie case against accused and submitted
charge-sheet in the Court below. After
investigation the police has found a prima
facie case of commission of a cognizable
offence by accused which should have tried
in a Court of Law. At this stage there is no
occasion to look into the question, whether
the charge ultimately can be substantiated
or not since that would be a subject matter
of trial. No substantial ground has been
made out which may justify interference by
this Court under Section 482 Cr.P.C.

In view of the above, I do not find
any error of law or perversity in the order
dated 12.08.2015, by which, the application
for exemption has been rejected.

As far as the prayer to stay the
entire criminal proceedings is concerned, I
also do not find any sufficient ground to
stay the aforesaid criminal proceedings
because in view of the provisions of
Chapter-XIX
of
Code
of
Criminal
Procedure, the accused has a right to move
the application for discharge under Section
239 Cr.P.C. and if that application is
rejected then certainly the Magistrate is
empowered to frame the charge as provided
under Section 240 Cr.P.C. Therefore, the
prayer no. (ii) is also misconceived.

As
far
as
prayer
(iii)
is
concerned,
there
is
already
specific
provision of Section 239 Cr.P.C. to decide
the application for discharge and for that
the orders of this Court are not required.
But
certainly,
before
deciding
the
application under Section 239 Cr.P.C., the
appearance of the accused in the Court for
filing of the bond with or without sureties is
necessary. Therefore, this prayer is also
misconceived.

In the last, learned counsel for
the petitioner has prayed that the accused
is ready to appear personally in the Court
and file the bail bonds, therefore, some
protection may be granted to him.

Considering
the
request
of
learned counsel for the petitioner, it is
provided that if the petitioner, Arvind
Kejriwal, surrenders before the court below
within four weeks from today and moves an
application for bail, the same shall be
506 INDIAN LAW REPORTS ALLAHABAD SERIES
considered and disposed of expeditiously in
accordance with law and in terms of law
laid down in the case of Smt. Amrawati and
another vs. State of U.P., 2005; Cr.L.J.755,
which has been affirmed by Hon'ble the
Apex Court in Lal Kamlendra Pratap Singh
vs. State of Uttar Pradesh and Ors.
reported in (2009) 4 SCC 437. Till then, no
coercive action shall be taken against the
petitioner.

The petition stands disposed of
accordingly."

10. While disposing of the aforesaid
petition, this Court has observed that after
investigation police has found a prima facie
case against the accused and submitted
charge sheet in the court below. After
investigation, the police has found a prima
facie case for commission of cognizable
offence by the accused, which should have
been tried in a court of law. The Court
further observed that at this stage, there is
no occasion to look into the question
whether the charge ultimately can be
sustained or not since that would be subject
matter of the trial court. In view of the
above, this Court has held that no
substantial ground has been made out
which may justify interference by this
Court under Section 482 Cr.P.C. and there
is no error of law or perversity in the order
dated 12.08.2015 by which the application
for
exemption
has
been
rejected.
Accordingly, prayer no.1 of that petition
has been rejected.

11. So as to decide the second prayer of
that petition, this Court has held that since the
accused has right to move an application for
discharge under Section 239 Cr.P.C. and if
that application is rejected, then certainly the
Magistrate is empowered to frame the charge
as provided under Section 340 Cr.P.C., so the
prayer no.(ii) is misconceived.

12. Deciding prayer no.(iii) of the said
petition, this Court has held that there is
already specific provision of Section 239
Cr.P.C. to decide the application for discharge
and for that, the orders of this Court are not
required but certainly, before deciding the
application under Section 239 Cr.P.C.,
appearance of the accused in the court for
filing bond with or without sureties is
necessary, therefore, that prayer is also
misconceived.

13. Thereafter, learned counsel for the
petitioner has given undertaking that the
present applicant is ready to appear
personally in the court and file the bail
bonds, therefore, some protection may be
given to him. Considering that request, this
Court granted four weeks' time to the
present applicant to surrender before the
learned court below and file application for
bail and the same was directed to be
considered and disposed of strictly in
accordance with law in terms of the law laid
down in the case of Smt. Amrawati and
another
vs.
State
of
U.P.,
2005;
Cr.L.J.755, which has been affirmed by
Hon'ble the Apex Court in Lal Kamlendra
Pratap Singh vs. State of Uttar Pradesh
and Ors., (2009) 4 SCC 437.

14. The aforesaid order dated
27.08.2015 has been assailed before the
Apex Court by filing Petition for Special
Leave to Appeal (Crl.) No.7989 of 2015;
Arvind Kejriwal Vs. State of U.P. & Ors.,
and the Hon'ble Apex Court passed the
order dated 22.09.2015, which reads as
under:-

"Taken on board.

Issue notice.

The attendance of the petitioner
before the trial court is dispensed with until
further orders."
1 All. Arvind Kejriwal Vs. State of U.P. & Anr.
507

15. By means of aforesaid order, the
Hon'ble Apex Court issued notices and
directed that attendance of the petitioner
before the trial court is dispensed with until
further
orders.
The
petitioner
has
challenged the order dated 04.08.2022
whereby the discharge application of the
present applicant has been rejected by the
learned trial court before the revisional
court and the revisional court dismissed the
revision vide order dated 21.10.2022
upholding the order dated 04.08.2022
passed by the learned trial court. Both the
aforesaid orders have been assailed in this
application on the ground that the applicant
has not made any appeal for vote on the
ground of religion etc. and he has not
promoted enmity between the classes of the
people, therefore, he may not be held liable
for the offence under Section 125 of the
Act, 1951. In support of his aforesaid
argument, learned counsel for the applicant
has placed reliance upon the judgment of
the Apex Court in re; Ramakant Mayekar
v. Celine D'Silva (Smt.), (1996) 1 SCC
399, citing para 27, which reads as under:-

"27. What is forbidden by law is
an appeal by a candidate for votes on the
ground of ''his' religion or promotion etc. of
hatred or enmity between groups of people,
and not the mere mention of religion.