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