# Daya Shankar Mishra @ Dayalu Mishra v. State of U.P. & Anr

- **Citation:** (2025) 11 ILRA 1364
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-28
- **Case number:** Application U/S 482. No.19617 of 2013
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daya-shankar-mishra-dayalu-mishra-v-state-of-u-p-anr-54842
- **Pages:** 19

## Headnote

G.A., Government Advocate

ISSUE FOR CONSIDERATION
Whether the allegations in the FIR and
charge-sheet, relating to installation of an
election hoarding on a public electricity pole,
disclose prima facie offences under Section
171-C IPC (undue influence at elections) and
Section 3(2)(a) of the Prevention of Damage to
Public Property Act, 1984, so as to justify
continuation of criminal proceedings against the
applicant.

HEADNOTES
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 161, 482 -
Indian Penal Code, 1860 - Section - 171A,
171-A(b),
171-C,
171-C(1),
171C(2)(a), 171-C(3), 171-E, 171-F, 171-H,
11 All. Daya Shankar Mishra @ Dayalu Mishra Vs. State of U.P. & Anr.
1365
425 - Prevention of Damage to Public
Property Act, 1984 - Section 3, 3(1), 3(2),
3(2)(a), - Representation of the People
Act, 1951 - Section 123, 123(2) -
Application under Section 482 Cr.P.C. - seeking
quashing of criminal proceedings arising from
Case Crime - FIR - Police alleged he installed a
large election campaign hoarding
on an
electricity pole with iron wires, violating the
Model Code of Conduct, attracting offences
under Section 171-C IPC and Section 3(2)(a) of
the Prevention of Damage to Public Property
Act, 1984 - Investigation - The I.O. recorded
statements of police witnesses and seized the
hoarding but prepared no recovery memo,
examined
no
independent
witnesses
or
Electricity Department officials, and collected no
proof of damage - Charge-sheet - cognizance
and summoning order - Applicant pleaded that
no complaint was lodged by authorities, no
evidence linked him to installation, no damage
or interruption was proved, and the case was
politically motivated - ingredients of offences
were absent - Court finds that mere display of a
hoarding did not amount to undue influence
under Section 171-C IPC, nor mischief under
Section 3(2)(a) of the Act, 1984 - and - the I.O.
failed to collect substantive material, allegations
were speculative and improbable, and the case
fell within parameters 1, 3, and 5 of State of
Haryana v. Bhajan Lal - Held - No prima facie
case
was
made
out
-
continuation
of
proceedings would be abuse of process and
cause injustice - consequently, Application is
allowed - entire criminal proceedings including
FIR, charge-sheet, cognizance order, and all
consequential proceedings, were quashed.(Para
- 24, 25, 26)

Application Allowed. (E-11)
CASE LAW CITED
State of Haryana v. Bhajan Lal (1992 SCC (Cri.)
426) - Bachan Singh v. Prithvi Singh (1975) 1
SCC 368 - Charan Lal Sahu v. Giani Zail Singh
(1984) 1 SCC 390 - Krishnamoorthy
v.
Sivakumar (2015) 3 SCC 467 - In Re:
Destruction of Public and Private Properties v.
State of Andhra Pradesh (2009) 5 SCC 212 -
Kodungallur Film Society v. Union of India
(2018) 10 SCC 713 - Himachal Pradesh Cricket
Association v. State of HP (2020) 18 SCC 465 -
Rajiv Thapar v. Madan Lal Kapoor (Criminal
Appeal No. 174 of 2013) - CBI v. Arvan Singh
(2023) 18 SCC 399 - Rajeev Kourav v. Baisahab
(2020) 3 SCC 317 - Mahmood Ali v. State of
U.P. (2023 LiveLaw SC 613) - Pradeep Kumar
Kesarwani v. State of U.P. (2025, Criminal
Appeal No. 3831) - Nitin Ahluwalia v. State of
Punjab (2025, Criminal Appeal No. 187).

LIST OF ACTS
Code of Criminal Procedure, 1973 - Indian Penal
Code, 1860 - Representation of the People Act,
1951 - Prevention of Damage to Public Property
Act, 1984.

LIST OF KEYWORDS
Quashing of proceedings - Section 482 Cr.P.C. -
Undue influence at elections - Damage to public
property - Model Code of Conduct - Abuse of
process of law - Prima facie case - Election
hoarding

CASE ARISING FROM
Case Crime No. 14 of 2012, Police Station
Kotwali Sadar, District Varanasi - FIR lodged for
installation of an election campaign hoarding on
an electricity pole - Criminal Case No. 2715 of
2015 (State v. Daya Shankar Mishra @ Dayalu
Mishra).

APPEARANCE OF PARTIES
Counsel for Applicants: Shri Satyendra Kumar
Singh and Shri Satyendra Kumar Tripathi.
Counsel for Opposite Parties: Shri Kail

## Text

_Characters 0–39,855 of 64,606. This is a partial read: ask again with offset=39855 for what follows._

1364 INDIAN LAW REPORTS ALLAHABAD SERIES
presumption of the constitutionality of
laws. The burden is always on the person
alleging unconstitutionality to prove it. For
that purpose, the challenge has to be
specifically pleaded by setting out the
specific grounds on which the challenge is
made. A Constitutional Court cannot
casually interfere with legislation made by
a competent Legislature only by drawing
an inference from the pleadings that the
challenge to the validity is implicit. The
State gets a proper opportunity to defend
the legislation only if the State is made
aware of the grounds on which the
legislation is sought to be challenged."

29. In fact, learned counsel for the
appellants did not even address us on the
vires of Rule 22 of the Rules, 2015,
therefore, it appears that he did not want to
press it.

30. For all the reasons, as discussed
herein-above, so far as appellant nos.2 to
64 are concerned, they did not file any
objection to the tentative seniority list dated
08.07.2017, therefore, their claim as raised
in the writ petition is clearly barred by the
law as declared by Hon'ble the Supreme
Court in the case of Rameshwar Prasad
(Dead) By Lrs. and others (supra) and S.B.
Dogra (supra). So far as appellant no.1 is
concerned, though he filed objections but
did not approach the court within a
reasonable time and in any case, in view of
the grounds for claiming seniority as that is
also highly belated and it is only in 2020
that the relief was claimed vide relief no.C,
as already discussed herein-above, we are
of the opinion that the learned Single Judge
did not commit any error in dismissing the
writ petition on the ground of delay and
laches,
purely
in
the
facts
and
circumstances of this case. The reasons
which we have given are additional reasons
in support of the conclusion arrived at by
the learned writ court.

31. For all the above reasons we are
not inclined to interfere with the impugned
judgment dated 27.07.2021.

32.
The
appeal
is,
accordingly,
dismissed.
----------
(2025) 11 ILRA 1364
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.11.2025

BEFORE

THE HON'BLE DINESH PATHAK, J.

Application U/S 482. No.19617 of 2013

Daya Shankar Mishra @ Dayalu Mishra
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ankit Srivastava, Sameer Jain, Satyendra
Kumar Singh, Satyendra Kumar Tripathi

Counsel for the Opposite Parties:
G.A., Government Advocate

ISSUE FOR CONSIDERATION
Whether the allegations in the FIR and
charge-sheet, relating to installation of an
election hoarding on a public electricity pole,
disclose prima facie offences under Section
171-C IPC (undue influence at elections) and
Section 3(2)(a) of the Prevention of Damage to
Public Property Act, 1984, so as to justify
continuation of criminal proceedings against the
applicant.

HEADNOTES
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 161, 482 -
Indian Penal Code, 1860 - Section - 171A,
171-A(b),
171-C,
171-C(1),
171C(2)(a), 171-C(3), 171-E, 171-F, 171-H,
11 All. Daya Shankar Mishra @ Dayalu Mishra Vs. State of U.P. & Anr.
1365
425 - Prevention of Damage to Public
Property Act, 1984 - Section 3, 3(1), 3(2),
3(2)(a), - Representation of the People
Act, 1951 - Section 123, 123(2) -
Application under Section 482 Cr.P.C. - seeking
quashing of criminal proceedings arising from
Case Crime - FIR - Police alleged he installed a
large election campaign hoarding
on an
electricity pole with iron wires, violating the
Model Code of Conduct, attracting offences
under Section 171-C IPC and Section 3(2)(a) of
the Prevention of Damage to Public Property
Act, 1984 - Investigation - The I.O. recorded
statements of police witnesses and seized the
hoarding but prepared no recovery memo,
examined
no
independent
witnesses
or
Electricity Department officials, and collected no
proof of damage - Charge-sheet - cognizance
and summoning order - Applicant pleaded that
no complaint was lodged by authorities, no
evidence linked him to installation, no damage
or interruption was proved, and the case was
politically motivated - ingredients of offences
were absent - Court finds that mere display of a
hoarding did not amount to undue influence
under Section 171-C IPC, nor mischief under
Section 3(2)(a) of the Act, 1984 - and - the I.O.
failed to collect substantive material, allegations
were speculative and improbable, and the case
fell within parameters 1, 3, and 5 of State of
Haryana v. Bhajan Lal - Held - No prima facie
case
was
made
out
-
continuation
of
proceedings would be abuse of process and
cause injustice - consequently, Application is
allowed - entire criminal proceedings including
FIR, charge-sheet, cognizance order, and all
consequential proceedings, were quashed.(Para
- 24, 25, 26)

Application Allowed. (E-11)
CASE LAW CITED
State of Haryana v. Bhajan Lal (1992 SCC (Cri.)
426) - Bachan Singh v. Prithvi Singh (1975) 1
SCC 368 - Charan Lal Sahu v. Giani Zail Singh
(1984) 1 SCC 390 - Krishnamoorthy
v.
Sivakumar (2015) 3 SCC 467 - In Re:
Destruction of Public and Private Properties v.
State of Andhra Pradesh (2009) 5 SCC 212 -
Kodungallur Film Society v. Union of India
(2018) 10 SCC 713 - Himachal Pradesh Cricket
Association v. State of HP (2020) 18 SCC 465 -
Rajiv Thapar v. Madan Lal Kapoor (Criminal
Appeal No. 174 of 2013) - CBI v. Arvan Singh
(2023) 18 SCC 399 - Rajeev Kourav v. Baisahab
(2020) 3 SCC 317 - Mahmood Ali v. State of
U.P. (2023 LiveLaw SC 613) - Pradeep Kumar
Kesarwani v. State of U.P. (2025, Criminal
Appeal No. 3831) - Nitin Ahluwalia v. State of
Punjab (2025, Criminal Appeal No. 187).

LIST OF ACTS
Code of Criminal Procedure, 1973 - Indian Penal
Code, 1860 - Representation of the People Act,
1951 - Prevention of Damage to Public Property
Act, 1984.

LIST OF KEYWORDS
Quashing of proceedings - Section 482 Cr.P.C. -
Undue influence at elections - Damage to public
property - Model Code of Conduct - Abuse of
process of law - Prima facie case - Election
hoarding

CASE ARISING FROM
Case Crime No. 14 of 2012, Police Station
Kotwali Sadar, District Varanasi - FIR lodged for
installation of an election campaign hoarding on
an electricity pole - Criminal Case No. 2715 of
2015 (State v. Daya Shankar Mishra @ Dayalu
Mishra).

APPEARANCE OF PARTIES
Counsel for Applicants: Shri Satyendra Kumar
Singh and Shri Satyendra Kumar Tripathi.
Counsel for Opposite Parties: Shri Kailash
Prakash Pathak and Shri Anjani Kumar, learned
A.G.A.

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard Shri Satyendra Kumar Singh
and Shri Satyendra Kumar Tripathi, learned
counsel for the applicant and Shri Kailash
Prakash Pathak as well as Shri Anjani
Kumar, learned A.G.As for the Staterespondents.

2. The applicant has invoked the
inherent jurisdiction of this Court under
section
482
Cr.P.C.
to
quash
the
proceedings in Case No.2715 of 2012
(State vs. Daya Shankar Mishra @ Dayalu
Mishra), arising out of Case Crime No.14
1366 INDIAN LAW REPORTS ALLAHABAD SERIES
of 2012 under Section 171-C I.P.C. and
3(2)(a) of The Prevention of Damage to
Public Property Act, 1984 (in brevity 'Act,
1984'), Police Station Kotwali Sadar,
District Varanasi.

3. Facts culled out from the record are
that the present applicant was a candidate
in the Uttar Pradesh Legislative Assembly
Election
of
2012
from
City
South
Constituency, Varanasi. On 11.01.2012,
while a police party was on patrol duty in
connection with the enforcement of Model
Code of Conduct, it noticed a large election
campaign hoarding of the present applicant
tied to an electricity pole. Considering the
aforesaid installation of hoarding, in
violation of the Model Code of Conduct
and damage to the public property, Sub
Inspector, Narendra Singh has lodged an
F.I.R., being Case Crime No.14 of 2012
under Section 171-C I.P.C. and 3(2)(a) of
the Act, 1984, Police Station Kotwali
Sadar, District Varanasi, alleging therein
that on 11.01.2012, Sub Inspector Narendra
Singh, along with his companion Constable
Anand Prakash Singh, while conducting
inspection in his assigned area regarding
matters related to the enforcement of the
Model Code of Conduct for elections, was
proceeding from Bhaironath Chauraha
towards
Mahamrityunjaya
Mahadev
Temple, he observed that the Congress
candidate
from
the
City
South
constituency, Daya Shankar Mishra @
Dayalu Mishra has installed a large
hoarding for his election campaign on an
electric pole located on the road in the lane
leading to his residence, right in front of
Hanuman Ji's temple. The said hoarding
was tied to the electric pole with iron wires.
This act of Dayashankar Mishra @ Dayalu
Mishra is likely to improperly influence the
election process and causes damage to the
public property. The act amounts to a
punishable offence under Section 171-C of
the I.P.C. and Section 3(2)(a) of the Act,
1984. Accordingly, videography of the
hoarding fixed on the pole was done, and at
approximately 2:45 p.m., the hoarding was
taken into police possession and brought to
Kotwali Police Station.

4. The Investigating Officer (in brevity
'I.O.'), after due investigation, has submitted
the charge-sheet No.21 of 2012 dated
12.05.2012 arraigning the present applicant
for the offences under the aforementioned
sections. Statements of Sub- Inspector
Narendra Singh (the informant) and constable
Anand Prakash Singh were recorded under
Section 161 Cr.P.C., both corroborating the
version set out in the F.I.R. As per paragraph
no.12
of
the
counter
affidavit,
cognizance/summoning
order
has
been
passed based on the charge-sheet.

5. Having been aggrieved with the
initiation and continuance of the aforesaid
criminal proceedings, the present applicant
has invoked the inherent jurisdiction of this
Court assailing the criminal proceedings
based on the F.I.R. No.14 of 2012.

6. Learned counsel for the applicant,
while assailing the criminal proceedings,
submits that :-

(i) No complaint was ever lodged
by the officials of the Election Commission
of India, the Nagar Nigam or the Electricity
Department with regard to the hoarding
allegedly installed by the present applicant
as mentioned in the F.I.R. Neither any rival
candidates contesting the assembly election
nor any member of the public made any
complaint about the same.

(ii)
No
material
has
been
collected by the I.O. during investigation to
11 All. Daya Shankar Mishra @ Dayalu Mishra Vs. State of U.P. & Anr.
1367
prima facie establish the involvement of the
present applicant in installing or causing
the hoarding to be installed on the
electricity pole. He has also emphasized
that it has not been established that the said
electric pole was actually in the use for
distribution/supply of the electricity to the
general public or that, due to the
installation of the hoarding in the name of
the present applicant, any damage or
interruption in supply was caused to the
Electricity Department.

(iii) Statement of independent
member of the public were not recorded by
the I.O. to substantiate the allegation of
installation of hoarding by the present
applicant. The specific averment made in
paragraph no. 11 of the instant Application
in this regard has not been denied in the
counter affidavit. Statement of other police
personnel, namely, Anand Prakash Singh
was recorded by the I.O.

(iv) No proper seizure/recovery
memo prepared by the I.O. to establish the
alleged installation of the hoarding on
electric pole. Mere assertion in the F.I.R.
with regard to taking the hoarding in the
police possession and brought to Kotwali is
insufficient in absence of a regular
recovery/seizure memo. Averment made in
this regard in paragraph no.12 of the instant
Application has not specifically been
denied in paragraph no.12 of the counter
affidavit. The I.O. has also not mentioned
anything with regard to the recovery of
hoarding in his charge-sheet. Even seizure
of said hoarding has not been reported to
the Magistrate concerned.

(v)
False
and
malicious
prosecution has been instituted against the
present applicant intending to harass him in
collusion with some of the political rivals.

(vi) Even if the averments in the
F.I.R. are taken at their face value, the
essential ingredients as enunciated under
Section 171-C of the I.P.C. and Section
3(2)(a) of the Act, 1984 are not attracted in
the facts and circumstances of the present
case.

(vii) There is no material to show
any intention on part of the present
applicant to interfere with the free exercise
of an electoral right, or impede the election
process; hence, he is protected under Sub
Section 3 of Section 171-C I.P.C.

(viii) No case of undue influence
at elections is made out, as there is nothing
on the record, as well, to establish
voluntary interfere or attempt to interfere
with the free exercise of any electoral right.

(ix) The offence of mischief as
required for invocation of Section 3(2)(a)
of the Act, 1984 is not made out. It is
further submitted that even if a person is
using public property for a temporary
period, without causing damage or altering
its nature or structure, the temporary nature
of occupation may suggest that there was no
intention of unlawful grab the public property
related to the Act, 1984; as long as the use is
temporary and not destructive, it may not be
considered in violation of law under the Act,
1984. In support of his submission, counsel
for the applicant has placed reliance upon the
judgment of In Re: Destruction of Public
and Private Properties vs. State of Andhra
Pradesh and Others reported in (2009) 5
SCC 212 and Kodungallur Film Society &
Others vs. Union of India & Others
reported in (2018) 10 SCC 713. No material
has been collected to prove the malice
intention of the present applicant intending to
damage the public property or interfere in the
election process.
1368 INDIAN LAW REPORTS ALLAHABAD SERIES

(x) It is further submitted that it is
a fit case where the Hon'ble High Court
may interfere and quash the criminal
proceedings initiated against the present
applicant on the ground of abuse of process
of law and to secure the ends of justice. In
support of his submission, he has placed
reliance upon the case of Himachal
Pradesh Cricket Association & Another
vs. State of Himachal Pradesh & Others
reported in (2020) 18 SCC 465 and State
of Haryana & Others vs. Ch. Bhajan Lal
& Others reported in 1992 SCC (Cri.)
426.

7. Per contra, learned A.G.A. for the
State-respondents has vehemently opposed
the submissions advanced by learned counsel
for the applicant and contended that :-

(i)
Since
the
hoarding
was
recovered from an open place, the law
relating to the search and seizure are not
applicable in the instant matter.

(ii)
Owing
to
the
political
sensitivity of the matter, no member of the
public came forward to get his/her
statement recorded with regard to the
alleged installation of the hoarding on the
electric poll.

(iii) During the election period,
affixing hoardings or posters on the public
property such as electricity poles, road
lights, etc., are prohibited and attracts
Section 171-H I.P.C., as well as Section
3(2)(a) of the Act, 1984

(iv) The contents of the F.I.R.,
coupled with the charge-sheet, sufficiently
disclose the commission of cognizable
offences against the present applicant under
Section 171-C I.P.C. and Section 3(2)(a) of
the Act, 1984.

(v) Since Cognizance/summoning
order has already been passed; therefore, no
interference is warranted at this stage.

(vi) Instant application under
Section 482 Cr.P.C. is liable to be
dismissed, being misconceived and devoid
of merits.

8. Having considered the submissions
advanced by the learned counsel for the
parties and upon perusal of record on
board, it manifests that the placement of
election
campaign
hoarding
on
an
electricity
pole
prompted
the
police
officials to lodge an F.I.R. against the
present applicant, who was contesting
assembly election. The genesis of the
alleged crime as mentioned in the F.I.R. is
that the present applicant had installed a
large hoarding for his election campaign on
an electricity pole located on the road in the
lane leading to his residence, right in front
of Hanuman Ji Temple. The said hoarding
had been tied to the electricity pole with
iron wires. Owing to the said placement of
large hoarding on the electricity pole, the
police officials inferred that such placement
of a large hoarding was likely to
improperly influence the election process
and also cause damage to the public
property, viz., electricity pole.

Offence Under section 171- C I.P.C.

9. One of the offence invoked against
the applicant is under section 171-C I.P.C,
which falls under Chapter IX-A I.P.C. .To
prevent the malpractice and to conduct free
and fair election, Chapter IX-A I.P.C. was
introduced codifying the electoral offence
under
heading
Offence
relating
to
Elections, which consists of Sections
171-A to 171-I, which seek to make
11 All. Daya Shankar Mishra @ Dayalu Mishra Vs. State of U.P. & Anr.
1369
punishable under the ordinary penal law;
bribery, undue influence, personation, and
certain other malpractices at election, not
only to the representative bodies but also to
membership of public authorities, where
the law prescribes a method of election.
The provisions of this Chapter have to be
read along with The Representation of the
People
Act,
1951,
which
provides
additional
penalties
and
procedural
mechanisms for certain offences under this
Chapter, e.g., Section 171-E (punishment
for bribery) and Section 171-F (punishment
for undue influence or personation at
election). Undue influence at elections, as
defined under Section 171-C I.P.C., other
than Section 123 of The Representation of
the People Act, 1951, is reproduced
hereunder:-

"171-C.
Undue
influence
at
elections.-

(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).

(3) 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."

10. Section 171-C I.P.C. addresses the
offence of undue influence at the election.
It was introduced to safeguard the integrity
of the electoral process by prohibiting
interference with the free exercise of
electoral right. Sub-section 1 of Section
171-C I.P.C. is the core provision,
criminalizing
any
voluntary
act
(or
omission) that hinders or seeks to hinder a
persons ability to vote freely or exercise
other electoral rights (e.g., candidature).
Electoral Right is defined under Section
171-A I.P.C. as the right of a person to
stand as a candidate, vote or refrain from
voting at any election. Sub-section 2 of
Section 171-C I.P.C. provides a nonexhaustive list of specific acts that
constitute
undue
influence
without
prejudice to the generality of Sub-section 1
of Section 171-C I.P.C. Sub-section 3 of
Section
171-C
I.P.C.
provides
the
exceptional clause whereby 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. Thus,
there must be a deliberate act or omission
by the accused to interfere with the free
exercise
of
a
electoral
right.
Mere
negligence or accidental impact does not
suffice. Under Section 171-C I.P.C.,
intention or the involuntariness is the basic
requirement
for
enforcement
of
this
section. Consequently, the interference
must relate to a specific electoral right
under Section 171-A I.P.C., such as voting
or standing for election. It applies to any
election recognized under Indian law (e.g.
Parliamentary,
state
assembly,
local
1370 INDIAN LAW REPORTS ALLAHABAD SERIES
bodies).
Section
171-C
covers
both
successful interference and mere attempts.
The overt act must have the effect, or
potential effect, of preventing, obstructing,
or influencing the free exercise of the right.
The said overt act must occur in relation to
an
ongoing
or
impending
election.
Ingredients enunciated under Section 171C I.P.C. emphasize protection of voter
autonomy
and
electoral
fairness,
distinguishing
undue
influence
from
permissible pursuation, viz., the canvassing
under Section 171-G I.P.C. In the matter of
Bachan Singh vs. Prithvi Singh, 1975(1)
SCC 368, Hon'ble Supreme Court has held
that the prefix undue indicates that
there must be some abuse of influence.
Undue
influence
is
used
in
contradistinction to proper influence. In
the case of Charan Lal Sahu vs. Giani
Zail Singh and Anr., 1984 (1) SCC 390,
the Hon'ble Supreme Court, while referring
to Section 171-C I.P.C., has pointed out
that the gravamen of this section is that
there must be interference, or an attempted
interference, with the free exercise of
any electoral right. Electoral right is
defined in Section 171-A(b) I.P.C. as 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.

11. Hon'ble Supreme Court in the
matter
of
Krishnamoorthy
Vs.
Sivakumar & Ors, 2015 (3) SCC 467 has
elucidated the nature and scope of "undue
influence" in the light of Section 123(2) of
the Representation of the People Act, 1951
and Section 171-C IPC and clarified that
undue influence strikes at the stage when
the voter is casting his vote or immediately
influencing that act; legitimate canvassing
and persuasion before the voter has finally
made up his mind do not constitute undue
influence. The Hon'ble Apex Court has
summarised the law relating to undue
influence in paragraph no.53 of his
judgment. Relevant paragraph nos. 45, 47,
53 and 65 are reproduced hereunder :

"45. In Baburao Patel, the Court
while dealing with the challenge to the
Presidential Election, addressed to the
issue pertaining to undue influence. The
Court observed:

"We may in this connection refer
to Section 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
Section 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. It will therefore be useful to refer to
cases under the election law to see how
election tribunals have looked at the matter
while considering the scope of the words
"undue influence"."

47. In S.K. Singh V. V.V. Giri,
1970 2 SCC 567 the majority while
interpreting Section 18 of the Presidential
and Vice-Presidential Elections Act, 1952
(for short, 'the 1952 Act') in the context of
Section 171-C I.P.C., expressed thus:

"..... In our opinion, if distribution
of the pamphlet by post to electors or in the
Central Hall is proved it would constitute
"undue influence" within Section 18 and it is
not necessary for the petitioners to go further
and prove that statements contained in the
pamphlet were made the subject of a verbal
appeal or persuasion by one member of the
electoral college to another and particularly
to those in the Congress fold."
11 All. Daya Shankar Mishra @ Dayalu Mishra Vs. State of U.P. & Anr.
1371

After so stating, the Court drew
distinction between Section 18 of the 1952
Act and Section 123 of the 1951 Act. It
referred to Chapter IX A of the Indian
Penal Code, 1860 which deals with
offences relating to elections and adverted
to the issue of undue influence at elections
as enumerated under Section 171-C. The
argument that was advanced before the
Court was to the following effect:

"...the language of Section 171-C
suggests that undue influence comes in at
the second and not at the F.I.R.st stage,
and therefore, it can only be by way of
some act which impedes or obstructs the
elector in his freely casting the vote, and
not in any act which precedes the second
stage i.e. during the stage when he is
making his choice of the candidate whom
he would support. This argument was
sought to be buttressed by the fact that
canvassing is permissible during the
F.I.R.st
stage,
and,
therefore,
the
interference or attempted interference
contemplated by Section 171-C can only
be that which is committed at the stage
when the elector exercises his right i.e.
after he has made up his mind to vote for
his chosen candidate or to refrain from
voting. It was further argued that the
words used in Section 171-C were "the
free exercise of vote" and not "exercise
of free vote". 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 under influence can
only mean some act by way of threat or
fear or some adverse consequence
administered at the time of casting the
vote."

Repelling the said contention, the
Court held thus:

"We do not think that the
Legislature, while framing Chapter IX-A of
the Code ever contemplated such a
dichotomy or intended to give such a
narrow meaning to the freedom of
franchise essential in a representative
system of Government. In our opinion the
argument mentioned above is fallacious. It
completely disregards the structure and the
provisions of Section 171-C. Section 171-C
is enacted in three parts. The F.I.R.st subsection 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 is indicated by the opening
sentence of sub-section (2), i.e. "without
prejudice to the generality of the provisions
of sub-section (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. This was so held by the Privy
Council in King-Emperor v. Sibnath
Banerj, 1945 AIR(PC) 156" After so
stating, the Court proceeded to lay down as
follows:-

"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 a
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. At what stage would a declaration
1372 INDIAN LAW REPORTS ALLAHABAD SERIES
of public policy or a promise of public
action act and tend to interfere? Surely
only at the stage when a voter is trying to
make up his mind as to which candidate he
would support. If a declaration of public
policy or a promise of public action
appeals to him, his mind would decide in
favour of the candidate who is propounding
the public [pic]policy or promising a
public action. Having made up his mind he
would then go and vote and the declaration
of public policy having had its effect it
would no longer have any effect on the
physical final act of casting his vote.

Sub-section (3) further proceeds
on the basis that the expression "free
exercise of his electoral right" does not
mean that a voter is not to be influenced.
This expression has to be read in the
context of an election in a democratic
society and the candidates and their
supporters must naturally be allowed to
canvass support by all legal and legitimate
means.
They
may
propound
their
programmes, policies and views on various
questions which are exercising the minds of the
electors. This exercise of the right by a
candidate or his supporters to canvass support
does not interfere or attempt to interfere with
the free exercise of the electoral right. What
does, however, attempt to interfere with the free
exercise of an electoral right is, if we may use
the expression, "tyranny over the mind". If the
contention of the respondent is to be accepted, it
would be quite legitimate on the part of a
candidate or his supporter to hypnotise a voter
and then send him to vote. At the stage of
casting his ballot paper there would be no
pressure cast on him because his mind has
already been made up for him by the
hypnotiser.

It was put like this in a book on
Elections:

"The freedom of election is twofold; (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."[36] We are supported in this
view by the statement of Objects and
Reasons attached to the bill which
ultimately resulted in the enactment of
Chapter IX-A.

That statement explains in clear
language
that
"undue
influence
was
intended to mean 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, and that the
definition 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".

"The
Legislature
has
wisely
refrained from defining the forms interference
may take. The ingenuity of the human mind is
unlimited
and
perforce
the
nature
of
interference must also be unlimited."

53.
From
the
aforesaid
authorities, the following principles can be
culled out:-

(i) The words "undue influence"
are not to be understood or conferred a
meaning in the context of English statute.

(ii) The Indian election law pays
regard to the use of such influence having
the tendency to bring about the result that
has contemplated in the clause.
11 All. Daya Shankar Mishra @ Dayalu Mishra Vs. State of U.P. & Anr.
1373

(iii) If an act which is calculated
to interfere with the free exercise of
electoral right, is the true and effective test
whether or not a candidate is guilty of
undue influence.

(iv)
The
words
"direct
or
indirect" used in the provision have their
significance and they are to be applied
bearing in mind the factual context.

(v) Canvassing by a Minister or an
issue of a whip in the form of a request is
permissible unless there is compulsion on the
electorate to vote in the manner indicated.

(vi)
The
structure
of
the
provisions contained in Section 171-C of
IPC are to be kept in view while
appreciating the expression of 'undue
influence' used in Section 123(2) of the
1951 Act.

(vii) The two provisos added to
Section 123(2) do not take away the effect
of the principal or main provision.

(viii) Freedom in the exercise of
judgment which engulfs a voter's right, a
free choice, in selecting the candidate
whom he believes to be best fitted to
represent the constituency, has to be given
due weightage.

(ix) There should never be tyranny
over the mind which would put fetters and
scuttle the free exercise of an electorate.

(x)
The
concept
of
undue
influence applies at both the stages,
namely, pre- voting and at the time of
casting of vote.

(xi) "Undue influence" is not to
be equated with "proper influence" and,
therefore,
legitimate
canvassing
is
permissible in a democratic set up.

(xii) Free exercise of electoral
right has a nexus with direct or indirect
interference or attempt to interfere.

65. Similarly, in Baburao Patel,
the Court has compared Section 123(2)
which defines undue influence, more or
less, in the same language as in Section
171-C IPC except the words "direct or
indirect" which have been added into the
nature of interference. In the said case
while dealing with the definition of Section
171-C IPC, the Court has observed thus:

"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 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). 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 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
1374 INDIAN LAW REPORTS ALLAHABAD SERIES
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-s. (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
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 s.
171-C shows, the mere exercise of a legal
right without intent to interfere with an
electoral right would not be undue
influence."

12. Considering the dictum of the
Hon'ble supreme court, as discussed above,
in the given circumstances of the present
case, I find no material whatsoever on the
record to show even prima facie that the
applicant intended to interfere with the free
exercise of any electoral right of any voter
or
candidate.
Even
assuming
that
applicants' hoarding was tied to electric
pole with iron wires; however, there is
nothing on record to indicate, prima facie,
that the present applicant is the person who
personally placed the hoarding or caused it
to be installed on the electric pole. The
police officials merely saw the hoarding
installed on the electric pole bearing the
applicant's
name,
removed
it
and
speculated it to be an overt act of the
present applicant in defiance of the Model
Code of Conduct. Mere display of an
election hoarding, even if affixed to a
public pole in contravention of the Model
Code of Conduct, does not amount to
interference with the free exercise of any
electoral right on the date of election/voting
or at any stage. Legitimate canvassing,
including putting up hoarding and banners
(subject to regulatory permissions), is part
of the democratic process and is expressly
protected U/s 171-C (3) I.P.C. when done
without intent to interfere with electoral
rights. The Hon'ble Supreme Court, while
summarising
the
principle
of
undue
influence
in
paragraph
no.
53
of
Krishnamoorthy (supra), as highlighted in
point no. 10, that the concept of undue
influence applies at both stages, namely,
pre-voting and at the time of casting of
vote. The Hon'ble Supreme Court also
highlighted in point no. 11 that "undue
influence", is not to be equated with the
"proper
influence"
and,
therefore,
legitimate canvassing is permissible in a
democratic setup. In the matter of S.K.
Singh (supra), the majority has held that
the language of Section 171-C suggests that
undue influence comes at the second stage
and not at the first stage, and therefore, it
can only be by way of some act, which
impedes or obstructs the elector in freely
casting his vote, and not by any act, which
precedes the second stage, i.e. during the
stage when he is making his choice of the
candidate, whom he would support. The
Hon'ble Supreme Court has emphasised
that
the
interference
or
attempted
interference contemplated under Section
171-C I.P.C. can only be that which is
committed at the stage when the elector
exercises his right, i.e., after he has made
up his mind to vote for his chosen
candidate or to refrain from voting. While
explaining sub Section 3, the Hon'ble
Supreme Court in the matter of S.K. Singh
(supra) has expounded that, "free exercise
of his electoral right" does not mean that a
voter is not to be influenced. This
expression has to be read in the context of
an election in a democratic society, and the
candidates and their supporters must
11 All. Daya Shankar Mishra @ Dayalu Mishra Vs. State of U.P. & Anr.
1375
naturally be allowed to canvass and support
by all legal and legitimate means. The
present applicant has come with a specific
plea in paragraph nos. 10 and 11 of the
present application that he neither installed
the hoarding nor authorised its installation
on
the
electric
pole,
and
that
no
independent member of the public has
supported the prosecution version. No
specific denial has been made in the
counter affidavit to the averments of
paragraph nos. 10 and 11 of the application.
Even no material has been collected by the
investigating officer, oral or documentary,
to establish any overt act on part of the
present applicant that he has intentionally
installed the hoarding on the electric pole to
interfere, directly or indirectly, with the
electoral right. The mere installation of a
hoarding on the electric pole does not suggest
threatening to any candidate or voter or any
person in whom a candidate or voter is
interested, with injury of any kind. The I.O.
has not collected any material to indicate the
intention of the present applicant to cause
injury of any kind to any person as enunciated
under Section 171-C (2)(a) I.P.C. There is no
allegation of threat, coercion, inducement, or
divine displeasure as contemplated under
section 171-C (2) I.P.C. . In the absence of any
such material, the ingredients of section 171-C
I.P.C. are wholly absent.

13. By no stretch of imagination, can it
be said that the act of displaying an election
hoarding, even if affixed to an electricity
pole, was intended to restrain or impede the
free exercise of any electoral right. As
such, no prima facie case is made out to
prove the culpability of the present
applicant for the commission of crime as
defined under Section 171-C I.P.C.

Offence Under Section 3(2) (a) of
Act 1984

14. The second offence invoked is
under section 3(2)(a) of the Act 1984,
owing to the damage allegedly caused to
the public property (electricity pole). The
Act, 1984 is a central legislation enacted to
curb the rising incidents of vandalism and
destruction of public property during
political agitations, student unrest, labour
disputes and similar events.