# Khurshidurehman S. Rehman v. State of U.P. & Anr

- **Citation:** (2022) 6 ILRA 377
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-12
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khurshidurehman-s-rehman-v-state-of-u-p-anr-48771
- **Pages:** 13

## Headnote

Civil Law - Constitution of India, Article
227 - Criminal Procedure Code, 1973 -
Section 156 (3) - Parliamentary Election -
non-fulfilling
of
Election
Manifesto/
promises
-
does
not
comes
under
'cognizable
Offence'
or
under
comes
within ambit of any law - thus cannot
enforced under any legislation - Trial
378 INDIAN LAW REPORTS ALLAHABAD SERIES
court rightly rejected application. Para 21,
23)

Writ Petition is dismissed. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,977 of 42,657. This is a partial read: ask again with offset=39977 for what follows._

6 All. Khurshidurehman S. Rehman Vs. State of U.P. & Anr.
377
the order must reflect that Magistrate had
applied his mind to the facts as well as law
applicable thereto, whereas the impugned
summoning
order
was
passed
in
mechanical manner without application of
judicial mind and without satisfying
himself as to which offence were primafacie being made out against the applicants
on the basis of the allegations made by the
complainant. the impugned cognizance
order passed by the learned Magistrate is
against the settled judicial norms.

27. In light of the judgments referred
to above, it is explicitly clear that the order
dated 12.08.2021 passed by the Additional
Chief Judicial Magistrate-I, Raebareli is
cryptic and does not stand the test of the
law laid down by the Hon'ble Apex Court.
Consequently, the cognizance/summoning
order dated 12.08.2021 cannot be legally
sustained, as the Magistrate failed to
exercise the jurisdiction vested in him
resulting in miscarriage of justice.

28. Accordingly, the present Criminal
Misc. Application U/S 482 Cr.P.C succeeds
and
is
allowed.
The
impugned
cognizance/summoning
order
dated
12.08.2021 passed by Additional Chief
Judicial Magistrate-I, Raebareli in Case No.
15605/2021: State Vs. Sangam Lal, arising
out of Case Crime No. 227/2020, under
Section 3/7 E.C. Act, Police Station
Mileriya, District Raebareli is hereby
quashed.

29. The matter is remitted back to
Additional Chief Judicial Magistrate-I,
Raebareli directing him to decide afresh the
issue for taking cognizance and summoning
the applicant and pass appropriate orders in
accordance with law keeping in view the
observations made by this Court as well as
the direction contained in the judgments
referred to above within a period of two
months from the date of production of a
copy of this order.

30. The party shall file certified copy
or computer generated copy of such order
downloaded from the official website of
High Court Allahabad or certified copy
issued from the Registry of the High Court,
Allahabad.

31. The concerned Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.
----------
(2022)06ILR A377
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2022

BEFORE

THE HON'BLE DINESH PATHAK, J.

Matters U/A 227 No. 723 of 2022 (CIVIL)

Khurshidurehman S. Rehman ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Jai Prakash Prasad

Counsel for the Respondent:
G,A., Sri Manish Goyal (Addl. A.G.), Sri A.K.
Sand

Civil Law - Constitution of India, Article
227 - Criminal Procedure Code, 1973 -
Section 156 (3) - Parliamentary Election -
non-fulfilling
of
Election
Manifesto/
promises
-
does
not
comes
under
'cognizable
Offence'
or
under
comes
within ambit of any law - thus cannot
enforced under any legislation - Trial
378 INDIAN LAW REPORTS ALLAHABAD SERIES
court rightly rejected application. Para 21,
23)

Writ Petition is dismissed. (E-11)

List of Cases cited: -

1. Vivek Kumar Mishra Vs U.O.I. & ors. (2019
SCC OnLine All 5139)

2.
Mithilesh
Kumar
Pandey
Vs
Election
Commission of India (2014 SCC Online
Del.4771)

3.
V.
P.
Ammavasai
Vs
Chief
Election
Commissioner & ors. (2019 SCC OnLine Mad
5623)

4.
Prof.
Ramchandra
G.
Kapse
Vs
Haribanshramakbal Singh (1991 vol.1 SCC 206)

5. Anil Kumar & ors. Vs MK Aiyappa & ors.
(2013 vol. 10 SCC 705)

6. Priyanka Srivastava & anr. Vs St. of U P &
ors., (2015) 6 SCC 287

7. Jagannath Verma Vs St. of UP & anr. [2014(8)
ADJ 439 (FB)]

8. Lalita Kumari Vs Government of U.P., (2014) 2
SCC 1

9. S. Subramaniam Balaji Vs The Government of
Tamil Nadu & ors., (2013) 9 SCC 659

10. M. Chandramohan Vs The Secretary, M/o
Parliamentary Affairs & ors. (WP (MD) No.
18733 of 2020) decided on 31.3.2021

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

1. Heard Sri Jai Prakash Prasad,
learned counsel for the petitioner, Sri
Manish
Goyal,
Senior
Advocate
(Additional Advocate General) assisted by
Sri AK Sand, Advocate appearing for the
State and perused the record.

2. In view of the peculiar facts and
circumstances of the present case, this
Court proceeds to decide the present matter
finally at admission stage itself without
calling for the respective affidavits of the
parties with the consent of the counsel
concerned.

3. The petitioner has invoked the
supervisory jurisdiction of this Court under
Article 227 of the Constitution of India
challenging the order passed by the trial
court as well as the revisional court
rejecting an application filed under Section
156 (3) CrPC.

4. The facts culled out from the
pleadings of the petitioner are that the
present petitioner has moved an application
under Section 156 (3) CrPC with an
allegation that Bhartiya Janta Party headed
by the respondent No. 2 (opposite party No.
1 in the original application) had wooed the
voters with several promises but failed to
fulfil the promises as made in the Election
Manifesto-2014, which was promulgated
by
Bhartiya
Janta
Party
in
the
parliamentary election conducted in the
year 2014. Therefore, he has committed
crime of fraud, cheating, criminal breach of
trust, dishonesty, defamation, deceiving
and
falls
allurement.
The
aforesaid
application was rejected by the trial court
(Additional
Chief
Judicial
Magistrate,
Aligarh) vide its order dated 1.10.2020.
Feeling aggrieved and dissatisfied with the
order passed by the trial court, the applicant
(petitioner herein) has preferred a revision
dated 12.10.2020 being criminal revision
No. 141 of 2020. Aforesaid revision was
dismissed affirming the order passed by the
trial court.

5. It is submitted by the learned
counsel for the petitioner that both the
courts below have illegally rejected an
application under Section 156 (3) CrPC
6 All. Khurshidurehman S. Rehman Vs. State of U.P. & Anr.
379
without applying their mind and without
properly appreciating the allegations made
against the respondent No. 2 and the
document on record. Non fulfilment of
promises
as
made
in
the
Election
Manifesto-2014 makes out a clear cut
criminal case against the respondent No. 2,
who is liable to be summoned and tried
under different sections of IPC. Learned
counsel for the petitioner submitted that in
a similar matter Hon'ble Supreme Court has
issued notices to the other side in Writ
Petition (Civil) No. (s). 688/2019, which is
still
pending
for
consideration.
Fact
regarding pendency of the aforesaid matter
was brought to the knowledge of the
revisional court through paragraph No. 5 of
the memo of the revision but the same has
not been considered by the revisional court
while deciding the revision on merits.

6. Per contra, learned senior counsel
has contended that on the face of an
application, no cognizable offence is made
out against the respondent No. 2 to be tried
by the court below. It is further contended
that non-fulfilling promise, if any, as
averred in the Election Manifesto-2014
does not make out any cognizable offence
against the persons who have promulgated
the election manifesto. It has further been
contended that non-fulfilling the conditions
as averred in the election manifesto does
not come within the ambit of any law, and
therefore, it cannot be enforced under any
legislation. Trial court as well as revisional
court has rightly rejected an application
after going through the contents of the
application and evidence adduced on behalf
of the petitioner. In support of his
contention, learned senior advocate has
cited the case of Vivek Kumar Mishra Vs.
Union of India Cabinet Secretary and
others reported in 2019 SCC OnLine All
5139, Mithlesh Kumar Pandey Vs.
Election Commission of India and others
reported in 2014 SCC Online Del 4771,
V.P. Ammavasai Vs. Chief Election
Commissioner, Election Commissioner
of India and others reported in 2019
SCC OnLine Mad 5623 and Prof.
Ramchandra
G.
Kapse
Vs.
Haribanshramakbal Singh reported in
(1991) 1 Supreme Court Cases 206.

7. Carefully considered the rival
submission advanced by the learned
counsel for the parties and perused the
record on board.

8. The present petitioner has invoked
the authority of Magistrate by moving an
application under Section 156 (3) CrPC
which authorises Magistrate empowered
under Section 190 of the CrPC to pass an
order for investigation into any cognizable
offence by an officer in charge of a police
station. Section 156 comes within Chapter
XII captioned as ''Information to the police
and their power to investigate'. Under subsection (1) of Section 156, the power of a
police officer to investigate a cognizable
case, which a court with jurisdiction over
the local area within the limits of such
station would have power to enquire into or
try under Chapter XIII, is untrammelled in
the sense that it does not require an order of
Magistrate.
Issuing
any
direction
to
investigate the matter under Section 156 (3)
CrPC is a pre-cognizance stage, that too, in
matters where a case of cognizable offence
is made out by the applicant. Invoking the
power of Magistrate under Section 156 (3)
in a casual manner, without producing
sufficient
details
and
material
for
commission of cognizable offence, is not
justifiable in the eye of law. Magistrate,
before whom an application has been
moved
for
issuing
a
direction
for
investigation under under Section 156 (3)
380 INDIAN LAW REPORTS ALLAHABAD SERIES
CrPC, is only required to examine the
matter and to apply his judicious mind to
reach a, prima facie, conclusion as to
whether the case for investigation is made
out, for commission of cognizable offence,
or not.

9. In the matter in hand, alleged
betrayal of promises as made in Election
Manifesto-2014 has been tried to be shown
as cognizable offence and the learned
Magistrate has been expected to issue a
direction
for
investigation
qua
said
commission of cognizable offences.

10. Before discussing the merits of
the application under Section 156 (3) CrPC
moved by the present petitioner, the scope
of Section 156 (3) is required to be
considered. Dealing with the scope of
Section 156 (3) CrPC, Hon'ble Supreme
Court in the matter of Anil Kumar and
others Vs. MK Aiyappa and others,
reported in (2013) 10 Supreme Court
Cases 705, has expounded in paragraph 11
that the application of mind by the
Magistrate should be reflected in the order
passed under Section 156 (3) CrPC, which
is quoted below:

"11. The scope of Section 156(3)
CrPC came up for consideration before
this Court in several cases. This Court in
Maksud Saiyed case (2008) 2 SCC (Cri)
692 examined the requirement of the
application of mind by the Magistrate
before exercising jurisdiction under Section
156(3) and held that where jurisdiction is
exercised on a complaint filed in terms of
Section 156(3) or Section 200 CrPC, the
Magistrate is required to apply his mind, in
such a case, the Special Judge/Magistrate
cannot refer the matter under Section
156(3) against a public servant without a
valid sanction order. The application of
mind by the Magistrate should be reflected
in the order. The mere statement that he
has gone through the complaint, documents
and heard the complainant, as such, as
reflected in the order, will not be sufficient.
After
going
through
the
complaint,
documents and hearing the complainant,
what weighed with the Magistrate to order
investigation under Section 156(3) CrPC,
should be reflected in the order, though a
detailed expression of his views is neither
required nor warranted. We have already
extracted the order passed by the learned
Special Judge which, in our view, has
stated
no
reasons
for
ordering
investigation."

11. In the case of Priyanka
Srivastava and another Vs. State of
Uttar Pradesh and others, reported in
(2015) 6 Supreme Court Cases 287,
Hon'ble Supreme Court has considered
several decisions of the Apex Court and
concluded that a principled and really
grieved citizen with clean hands must have
free access to invoke the powers under
Section 156(3) CrPC. It is not the police
taking steps at the stage of Section 154
CrPC. For ready reference, the relevant
paragraphs of the said judgment is quoted
hereinbelow:

"21. Dealing with the nature of
power exercised by the Magistrate under
Section 156(3) of the CrPC, a three-Judge
Bench in Devarapalli Lakshminarayana
Reddy and others v. V. Narayana Reddy
and others[2], had to express thus: (SCC p.
258, para 17)

"17. ....It may be noted further
that an order made under sub-section (3) of
Section 156, is in the nature of a
peremptory reminder or intimation to the
police to exercise their plenary powers of
6 All. Khurshidurehman S. Rehman Vs. State of U.P. & Anr.
381
investigation under Section 156(1). Such an
investigation
embraces
the
entire
continuous process which begins with the
collection of evidence under Section 156
and ends with a report or chargesheet
under Section 173."

23. In Dilawar Singh v. State of
Delhi, this Court ruled thus: (SCC p. 647,
para 18)

"18. ...11. The clear position
therefore is that any Judicial Magistrate,
before taking cognizance of the offence,
can order investigation under Section
156(3) of the Code. If he does so, he is not
to examine the complainant on oath
because he was not taking cognizance of
any offence therein. For the purpose of
enabling the police to start investigation it
is open to the Magistrate to direct the
police to register an FIR. There is nothing
illegal in doing so. After all registration of
an FIR involves only the process of
entering the substance of the information
relating
to
the
commission
of
the
cognizable offence in a book kept by the
officer in charge of the police station as
indicated in Section 154 of the Code. Even
if a Magistrate does not say in so many
words while directing investigation under
Section 156(3) of the Code that an FIR
should be registered, it is the duty of the
officer in charge of the police station to
register the FIR regarding the cognizable
offence disclosed by the complainant
because that police officer could take
further steps contemplated in Chapter XII
of the Code only thereafter."

24. In CREF Finance Ltd. v.
Shree Shanthi Homes (P) Ltd.[5], the Court
while dealing with the power of Magistrate
taking cognizance of the offences, has
opined
that
having
considered
the
complaint, the Magistrate may consider it
appropriate to send the complaint to the
police for investigation under Section
156(3) of the Code of Criminal Procedure.
And
again:
(Madhao
v.
State
of
Maharashtra, [(2013) 5 SCC 615], SCC
pp. 620-21, para 18)

"When a Magistrate receives a
complaint he is not bound to take cognizance
if the facts alleged in the complaint disclose
the commission of an offence. The Magistrate
has discretion in the matter. If on a reading
of the complaint, he finds that the allegations
therein disclose a cognizable offence and the
forwarding of the complaint to the police for
investigation under Section 156(3) will be
conducive to justice and save the valuable
time of the Magistrate from being wasted in
enquiring into a matter which was primarily
the duty of the police to investigate, he will be
justified in adopting that course as an
alternative to taking cognizance of the
offence itself. As said earlier, in the case of a
complaint regarding the commission of
cognizable offence, the power under Section
156(3) can be invoked by the Magistrate
before he takes cognizance of the offence
under Section 190(1)(a). However, if he once
takes such cognizance and embarks upon the
procedure embodied in Chapter XV, he is not
competent to revert back to the precognizance stage and avail of Section
156(3)."

25. Recently, in Ramdev Food
Products Private Limited v. State of
Gujarat, while dealing with the exercise of
power under Section 156(3) CrPC by the
learned Magistrate, a three-Judge Bench
has held that: (SCC p. 456, para 22)

"22.1.
The
direction
under
Section 156(3) is to be issued, only after
application of mind by the Magistrate.
382 INDIAN LAW REPORTS ALLAHABAD SERIES
When the Magistrate does not take
cognizance and does not find it necessary
to postpone instance of process and finds a
case made out to proceed forthwith,
direction under the said provision is issued.
In other words, where on account of
credibility of information available, or
weighing the interest of justice it is
considered appropriate to straightaway
direct investigation, such a direction is
issued.

22.2. The cases where Magistrate
takes cognizance and postpones issuance of
process are cases where the Magistrate has
yet to determine "existence of sufficient
ground to proceed."

27. Regard being had to the
aforesaid enunciation of law, it needs to be
reiterated that the learned Magistrate has
to remain vigilant with regard to the
allegations made and the nature of
allegations and not to issue directions
without proper application of mind. He has
also to bear in mind that sending the matter
would be conducive to justice and then he
may pass the requisite order. The present is
a case where the accused persons are
serving in high positions in the bank. We
are absolutely conscious that the position
does not matter, for nobody is above law.
But, the learned Magistrate should take
note of the allegations in entirety, the date
of incident and whether any cognizable
case is remotely made out. It is also to be
noted that when a borrower of the financial
institution covered under the SARFAESI
Act, invokes the jurisdiction under Section
156(3) Cr.P.C. and also there is a separate
procedure under the Recovery of Debts due
to Banks and Financial Institutions Act,
1993, an attitude of more care, caution and
circumspection has to be adhered to.

29. At this stage it is seemly to
state that power under Section 156(3)
warrants application of judicial mind. A
court of law is involved. It is not the police
taking steps at the stage of Section 154 of
the code. A litigant at his own whim cannot
invoke the authority of the Magistrate. A
principled and really grieved citizen with
clean hands must have free access to
invoke the said power. It protects the
citizens but when pervert litigations takes
this route to harass their fellow citizens,
efforts are to be made to scuttle and curb
the same."

12. Full Bench of this Court, in the
matter of Jagannath Verma Vs. State of
UP and another [2014(8) ADJ 439 (FB)]
has expounded, after considering the
judgment passed by Constitutional Bench
of Supreme Court in Lalita Kumari Vs.
Government of Uttar Pradesh, (2014) 2
SCC 1, that though the registration of an
FIR on the receipt of information relating
to the commission of cognizable offence is
mandatory, yet there may be instance
where a preliminary enquiry is required.
The relevant paragraph No. 13 of the
judgment in Jagannath Verma (supra) is
reproduced hereinbelow:

"The decision of the Constitution
Bench in Lalita Kumari holds that though
the registration of an FIR on receipt of
information relating to the commission of a
cognizable offence is mandatory, yet there
may be instances where a preliminary
enquiry is required. In that context, the
observation of the Supreme Court are as
follows:

"120.1. The registration of FIR
is mandatory under Section 154 of the
Code,
if
the
information
discloses
commission of a cognizable offence and no
6 All. Khurshidurehman S. Rehman Vs. State of U.P. & Anr.
383
preliminary inquiry is permissible in such
a situation.

120.2. If the information received
does not disclose a cognizable offence but
indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only
to ascertain whether cognizable offence is
disclosed or not.

120.3. If the inquiry discloses the
commission of a cognizable offence, the
FIR must be registered. In cases where
preliminary inquiry ends in closing the
complaint, a copy of the entry of such
closure must be supplied to the first
informant forthwith and not later than one
week. It must disclose reasons in brief for
closing the complaint and not proceeding
further.

120.4. The police officer cannot
avoid his duty of registering offence if
cognizable offence is disclosed. Action
must be taken against erring officers
who
do
not
register
the
FIR
if
information received by him discloses a
cognizable offence.

120.5. The scope of preliminary
inquiry is not to verify the veracity or
otherwise of the information received
but only to ascertain whether the
information
reveals
any
cognizable
offence.

120.6. As to what type and in
which cases preliminary inquiry is to be
conducted will depend on the facts and
circumstances
of
each
case.
The
category of cases in which preliminary
inquiry may be made are as under:

(a)
Matrimonial
disputes/
family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e)
Cases
where
there
is
abnormal
delay/laches
in
initiating
criminal prosecution, for example, over 3
months' delay in reporting the matter
without
satisfactorily
explaining
the
reasons for delay.

The
aforesaid
are
only
illustrations and not exhaustive of all
conditions which may warrant preliminary
inquiry.

120.7.
While
ensuring
and
protecting the rights of the accused and the
complainant, a preliminary inquiry should
be made time-bound and in any case it
should not exceed 7 days. The fact of such
delay and the causes of it must be reflected
in the General Diary entry."

The power which is conferred
upon
the
magistrate
to
order
an
investigation under Section 156 (3) is
before taking cognizance of an offence.
Section
156
(3)
provides
that
any
magistrate empowered under Section 190
may order such an investigation into any
cognizable case by an officer in charge of a
police station."

13. Now the question would be as to
whether the contents of the application
under Section 156(3) CrPC, moved by the
petitioner, discloses a cognizable offence
for forwarding of the complaint to the
police for investigation under Section 156
(3) CrPC. Definition of cognizable offence
is enunciated under Section 2 (c) of the
CrPC, which is reproduced hereinbelow:
384 INDIAN LAW REPORTS ALLAHABAD SERIES

"(c) "cognizable offence" means
an offence for which, and "cognizable
case" means a case in which, a police
officer may, in accordance with the First
Schedule or under any other law for the
time being in force, arrest without
warrant;"

14. At this juncture, in my opinion, it
would not be befitting to elaborate the
scope and nature of cognizable offence,
which itself spell out from the definition as
given above. In a complaint under Section
156(3) CrPC, the petitioner has made an
allegation of committing a crime of
criminal
breach
of
trust,
dishonesty,
deceiving, defamation and false allurement
on the ground that Bhartiya Janta Party led
by respondent No. 2 has failed to fulfil his
promise as enunciated in its Election
Manifesto-2014. Voters are allured to cast
vote in favour of the party by magical
promises.

15.

Paramount
question
for
consideration in the present petition lies in
a narrow compass as to whether nonfulfilment of any promise as made in the
Election
Manifesto-2014
amounts
to
commission of cognizable offence in the
eye of law. On a pointed query, learned
counsel for petitioner has failed to
demonstrate any penal provision for
betrayal of a party concerned from the
promises
as
made
in
the
Election
Manifesto-2014. To discuss the nature and
scope of election manifesto promulgated by
political parties, Hon'ble Supreme Court in
the case of S. Subramaniam Balaji Vs.
The Government of Tamil Nadu and
others, (2013) 9 SCC 659 has expounded
that the manifesto of political parties is a
statement of its policy. Promises made in
the manifesto cannot be treated to be
corrupt practice as is denoted under Section
123 in The Representation of the People
Act, 1951. No penal provision has been
provided considering the non-fulfilment of
the promises as made in the election
manifesto as a crime. Though under The
Representation of the People Act, 1951,
there is a provision for registering the
political parties but there is no specific
provision for the cancellation of their
registration on any ground including the
alleged false promise as made in the
election manifesto. Hon'ble Supreme Court
in case of S. Subramaniam Balaji (supra)
has laid down that i) the provisions of The
Representation of the People Act, 1951
place no fetter on the power of political
party to make promises in the election
manifesto, and, ii) that it is not for the
Courts to legislate as to what kind of
promises can or cannot be made in the
election manifesto, applies on all force.

16. In the case of Mithlesh Kumar
Pandey Vs. Election Commission of
India and others, (2014) 6 AIR Del R
139, Division Bench of Hon'ble Delhi High
Court has discussed the post poll alliances
of the political parties and their manifesto
released. It was argued before the Hon'ble
Court that the manifesto released by
political party forms the basis of party's
election campaign since it compiles in one
document the policies of the party; the
party explicitly seeks the votes of electorate
on the basis of statements and promise
made in the manifesto; the manifesto of a
political party is analogous to making
''offer' as understood in the law of contract,
which
contract
is
complete
on
the
acceptance of the ''offer', that is to say, at
the time when the voters vote for that
political party and the party ultimately
comes to power or makes the Government,
therefore, the political party should not be
permitted to carry out acts which are in
6 All. Khurshidurehman S. Rehman Vs. State of U.P. & Anr.
385
blatant disregard and breach of their own
manifestos. The relevant paragraph No. 3, 8
and 9 of the aforesaid judgment is quoted
below:

"3. We, at the outset, invited
attention of the petitioner appearing in
person to the judgment of Justice R.C.
Lahoti (as his Lordship then was) of this
Court in ANZ Grindlays Bank Pie v.
Commissioner, MCD 1995 II AD (Delhi)
573 where, dealing with an argument of
promissory
estoppel
and
legitimate
expectations on the basis of election
manifesto, it was held that election
manifesto of a political party howsoever
boldly
and
widely
promulgated
and
publicised, can never constitute promissory
estoppel
or
provide
foundation
for
legitimate expectations. It was further held
that it is common knowledge that political
parties hold out high promises to the voters
expecting to be returned to power but it is
not necessary that they must be voted in by
the electorate; the political parties may
commit to the voters that they would enact
or repeal certain laws but they may not
succeed in doing so for reasons more than
one and they know well this truth while
making such promises and the electorate to
which such promises are made also knows
it. It was further held that neither the plea
of promissory estoppel nor the plea of
legitimate expectations can be founded
thereon.

8. Reference in this regard may
also be made to what Lord Denning, sitting
in the House of Lords observed in Bromley
London Borough Council Vs. Greater
London Council 1982 (1) All England Law
Reports 129. It was said:-

"A manifesto issued by a political
party - in order to get votes - is not to be
taken as gospel. It is not to be regarded as
a bond, signed, sealed and delivered. It
may contain - and often does contain -
promises or proposals that are quite
unworkable or impossible of attainment.
Very few of the electorate read the
manifesto in full. A goodly number only
know of it from what they read in the
newspapers or hear on television. Many
know nothing whatever of what it contains.
When they come to the polling booth, none
of them vote for the manifesto. Certainly
not for every promise or proposal in it.
Some may by influenced by one proposal.
Others by another. Many are not influenced
by it at all. They vote for a party and not
for a manifesto. I have no doubt that in this
case many ratepayers voted for the Labour
Party even though, on this one item alone,
it was against their interests. And vice
versa. It seems to me that no party can or
should claim a mandate and commitment
for any one item in a long manifesto. When
the party gets into power, it should
consider any proposal or promise afresh -
on its merits - without any feeling of being
obliged to honour it or being committed to
it. It should then consider what is best to do
in the circumstances of the case and to do it
if it is practicable and fair."

The same view was followed by
the High Court of Justice Queen's Bench
Division Administrative Court in R (Island
Farm Development Ltd.) Vs. Bridgend
County Borough Council [2006] EWHC
2189 (Admin)."

"9. In view of the aforesaid legal
position, post-poll alliances cannot be
declared as illegal on the ground of being
contrary to the manifesto of the political
parties entering into the alliance and it is
not within the domain of this Court to
legislate or issue a direction therefore,
386 INDIAN LAW REPORTS ALLAHABAD SERIES
making the manifesto a legally binding
document on the political party issuing the
same."

17. Learned Senior Advocate has
cited the case of VP Ammavasai Vs. Chief
Election
Commissioner,
Election
Commissioner of India and others,
reported in 2019 SCC OnLine Mad 5623,
wherein Division Bench of Hon'ble Madras
High Court has expressed his view that the
poll manifesto does not have any statutory
backing. Hence, it is not enforceable in the
eyes of law. Relevant paragraphs No. 12
and 13 are reproduced hereinbelow:

"12. Thus from the line of
judgments of the Hon'ble Supreme Court in
S.Subramaniam
Balaji's
case,
duly
followed
by High
Courts
of
Delhi,
Rajasthan, Allahabad and this Court, it
could been seen that there is consistency
that election manifesto made by a political
party or by an individual candidate, in its
true construction would not mean, corrupt
practice by the individual candidate or the
party, as the case may be, and that apart,
there is no provision in the Representation
of Peoples Act, prohibiting an individual
candidate from resorting to promises,
which could be construed as corrupt
practice, within the meaning of Section 123
of the Representation of the Peoples Act,
1951.

13. Clause 18.4 of the Model
Code of Conduct enclosed in the typed set
of papers filed by the petitioner also
indicates that the Delhi High Court in
Mithilesh Kumar Pandey v. Union of India,
reported in 2014 SCC Online Del.4771 :
AIR 2015 (MOC 103) 45, held that there is
no provision in law, which makes promises
made by political parties in their election
manifestos enforceable against them."

18. Learned Senior Advocate has
also invited the attention of the Court
towards the judgment dated 26.4.2019
passed by the Division Bench of this Court
in the case of Vivek Kumar Mishra Vs.
Union of India, Cabinet Secretary and
others, reported in 2019 SCC OnLine All
5139. Aforesaid petition was filed for
cancellation of the registration of the
political parties and for issuing a direction
of appropriate nature that unless and until
the proper accountability in dealing with
election manifesto for translating them into
action
is
fixed
and
accounted
for
participation of the erring political party in
any election may be debarred and their
election symbol may be forfeited. Dealing
with the issue of non-fulfilment of the
promise as made in the election manifesto,
Hon'ble Division Bench dismissed the
petition with observation that manifesto of
political parties is a written statement
declaring policy, the intention, motive or
views of the said party, however, such
declaration cannot have any binding effect
or implemented through court of law. The
relevant paragraphs No. 7, 8, 11, 12 and 14
are quoted hereinbelow:

7. The manifesto of a political
party issued at the time of general election is
a written statement declaring publicly the
intentions, motives or views of the said party,
what it hopes and vows to do if it is elected
and forms the government in future. Such a
hope and vow of a party can not have any
binding effect or implemented through court
of law and it can also not be de-registered for
not fulfilling it even if some people or class of
people are alleged to have been allured by it
as admittedly it has no legal sanctity. The
people, through their votes in the next
election, can show their resentment.

"8. Lord Denning in regard to
election manifesto has observed in Brobley
6 All. Khurshidurehman S. Rehman Vs. State of U.P. & Anr.
387
London Borough Council Vs. Greater
London Council 1982 (1) 129 All England
Law Reports, as under:-

"A manifesto issued by a political
party, in order to get votes, is not to be
taken as gospel. It is not to be regarded as
a bond, signed, sealed and delivered. It
may contain, and often does contain,
promises or proposals that are quite
unworkable or impossible of attainment.
Very few of the electorate read the
manifesto in full. A Goodly number only
know of it from what they read in the
newspapers or hear on television. Many
know nothing whatever of what it contains.
When they come to the polling booth, none
of them vote for the manifesto. Certainly
not for every promise or proposal in it.
Some may be influenced by one proposal.
Others by another. Many are not influenced
by it at all. They vote for a party and not
for a manifesto. I have no doubt that in this
case many ratepayers voted for the Labour
Party even though, on this one item alone,
it was against their interests. And vice
Versa. It seems to me that no party can or
should claim a mandate and commitment
for any one item in a long manifesto. When
the party gets into power, it should
consider any proposal or promise afresh,
on its merits, without any feeling of being
obliged to honour it or being committed to
it. It should then consider what is best to do
in the circumstances of the case and to do it
if it is practicable and fair."

11. Therefore, since there is no
legislation in this regard so no action can be
taken for not fulfilling the promises and
commitments made in a manifesto of a
political party and reading down of the
provision also does not arise. Therefore the
contention of the learned counsel for the
petitioner on the basis of observation of Lord
Denning (Supra) is misconceived and
repelled.

12. So far as the allegation of
criminal liability in the form of fraud,
cheating and criminal breach of trust are
concerned, this Court is doubtful of having
fulfilling the ingredients of the said offences.
Even otherwise non fulfillment of the
promise, made in a manifesto which has no
legal sanctity, can not be a ground for
criminal prosecution. However if any body is
aggrieved, he may avail appropriate remedy
available under criminal law.

14. The promises in the election
manifesto can also not be read into Section
123 for declaring it to be a corrupt practice
because the allegation of the corrupt practice
can be levelled for an act against the
candidate or his agent or by any other person
with the consent of a candidate or his election
agent which can not include the political
party. The Hon'ble Apex Court in the case of
S.
Subramaniam
Balaji
Vs.
State
of
Tamilnadu and Others; (2013) 9 SCC 659
has held as under in paragraph 84.1:-

"84.1.
After
examining
and
considering the parameters laid in Section
123 of RP Act, we arrived at a conclusion
that the promises in the election manifesto
cannot be read into Section 123 for declaring
it to be a corrupt practice. Thus, promises in
the election manifesto do not constitute as a
corrupt practice under the prevailing law. A
reference to a decision of this Court will be
timely. In Prof. Ramachandra g. Kapse Vs.
Haribansh Ramakbal Singh (1996) 1 SCC
206 this Court held that:-

"21. ... Ex facie contents of a
manifesto, by itself, cannot be a corrupt
practice committed by a candidate of that
party."
388 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In a recent judgment of Madras
High
Court
in
a
case
of
M.
Chandramohan
Vs.
The
Secretary,
Ministry of Parliamentary Affairs and
others (WP (MD) No. 18733 of 2020)
decided on 31.3.2021, the Division Bench
of Madras High Court has discussed the
issues of freebies offered in the election
manifesto to allure the voters to cast votes
in their favour. Considering the dictum of
Hon'ble Supreme Court in the case of S.
Subramaniam Balaji (supra), Hon'ble
Division Bench has laid down that no doubt
the statutes provided in The Representation
of Peoples Act, 1951 does not penalises the
political parties indulging in the corrupt
practice as clearly distinguished in the
above judgment. The Representation of
Peoples Act, 1951 was passed immediately
after our country was made a republic in
the year 1950 and the policy maker of that
time did not foresee that the political
parties would stoop down to the level of
indulgence in corrupt practice in the name
of election manifesto and that is the reason
why they did not include the political
parties
under
Section
123
of
the
Representation of Peoples Act, 1951, even
though the candidates or his/her agents are
included.

20. So far as the submission made by
the learned counsel for the petitioners with
respect to the pendency of the writ petition
No. (s). 688/2019 is concerned, this Court
has no authority to discuss the merits of the
said case or impede the proceeding of the
present petition, keeping in view the
pendency of the aforesaid matter.

21. It is, thus, clear that the election
manifesto promulgated by any political
party is a statement of their policy, view,
promises and vow during the election,
which is not the binding force and the same
cannot be implemented through the courts
of law. Even there is no penal provision
under any statute to bring the political
parties within the clutches of enforcement
authorities, in case, they fail to fulfil their
promises as made in the election manifesto.

22. Learned counsel for the petitioner
failed to substantiate his submissions in
assailing the orders impugned, as to how
cognizable offence is made out in the
present matter for the purposes of issuing a
direction for investigation as enunciated
under Section 156 (3) CrPC. Even in a
provision as embodied under Section 123
of The Representation of Peoples Act, 1951
only a candidate or his/her agents has been
brought under law for adopting a corrupt
practices of election but the aforesaid
provision is not made applicable on any
political party as a whole.

23. Learned Magistrate as well as the
revisional court has discussed the contents
of the application under Section 156 (3)
CrPC moved by the present petitioner in
detail and very consciously came to to
conclusion that on the face of record, no
case is made out for the purposes of
investigating
the
cognizable
offence.
Record also reveals that the petitioner has
casually invoked the authority of the
Magistrate and the application under
Section 156 (3) CrPC has been filed in a
routine
manner
without
taking
any
responsibility whatsoever only to harass the
respondent
No.
2.
The
application/complaint
does
not,
prima
facie,
disclose
any
commission
of
cognizable offence.

24. After perusal of the judgment
passed by the courts below, it cannot be
said that they have decided the matter in a
cursory manner without applying their
6 All. M/S Ramon Motion Auto Corp. Pvt. Ltd. & Ors. Vs. Debt Recovery Appellate Tribunal & Ors.
389
judicial mind. Non-occurrence of any
cognizable offence is also one of the
paramount condition which averted the
courts below from issuing a direction for
investigation in exercise of powers under
Sections 156 (3) CrPC.

25. In this conspectus as above, I do
not find any substance in the present writ
petition.