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ELECTORAL OFFENCES UNDER IPC

( Faculty of Law, JMI )

Author – Naimish Tripathi

SEM - VIII
Self – Financed
Roll No. – 34
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ACKNOWLEDGEMENT

First and foremost, I’d like to thank my subject teacher Prof. Faizanur Rehman for providing in
depth sessions on my project’s topic which were nothing less than enlightening. He has played a
pivotal role in my understanding of the legal world in a larger scheme of things and has been a
driving force for this assignment as well by giving me essential inputs and notes that I’ve used
all along. I’d also like to thank the numerous internet resources which have helped me during
this drastic time of lockdown in countries worldwide.
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INDEX

INTRODUCTION………………………………………………………………………….Pg.4
PROVISIONS IN IPC, 1860 RELATED TO ELECTORAL OFFENCES
 CHAPTER IX A OF IPC, 1860…………………………………………………………………………………..Pg.6
 SCOPE OF CHAPTER IX A……………………………………………………………………………………….Pg.7
 CANDIDATE & ELECTORAL RIGHT………………………………………………………………………….Pg.7

SPECIFIC OFFENCES
 BRIBERY………………………………………………………………………………………………………………..Pg.8
 UNDUE INFLUENCE……………………………………………………………………………………………....Pg.9
 PERSONATION AT AN ELECTION…………………………………………………………………………..Pg.10
 MAKING OR PUBLISHING DELIBERATE FALSE STATEMENTS………………………………..Pg.11
 ILLEGAL PAYMENTS……………………………………………………………………………………………..Pg.12
 FAILURE TO KEEP ELECTION ACCOUNTS……………………………………………………………….Pg.13

CONCLUSION……………………………………………………………………………..Pg.14
BIBLIOGRAPHY…………………………………………………………………………..Pg.15
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INTRODUCTION

In general, the term election defines two types of persons i.e. the electors and the candidate. The
former means the persons who choose the candidate and the latter defines whom is chosen or
elected by those persons. If we take the wider meaning of the term election in consideration,
then, it means that a person who is nominated from other several persons is elected to the office.
The legal meaning of the term “election” can be found in the RPA (Representation of the People
Act) 1951 i.e. “Election has been defined as an election to fill a seat or seats in either House of
Parliament or in the House or either House of the Legislature of a State”. 1 The constitution is
silent on the term election. Because of this the SC gave narrow and wider meaning of the term
election.2 In another case SC gave the wider and clear interpretation of the term election. The
reason behind giving a wide meaning to the term ‘election’ is plenary.3

In a democratic country it is important to have fundamental rights with other rights to

safeguard oneself against numerous kinds of exploitation. So for smooth and proper functioning
of the democratic system there are some freedoms mentioned in the legislations which are to be
protected. Right to vote is the main freedom which will be given to every citizen of the state and
that vote must be count and be of value. This is one way to protect the freedom of a citizen. In
one of the leading cases on the subject, it was held that the election to the legislature are not
private affairs of the candidates, they are matters of public interest and of national importance. 4
Right to vote should be considered as the most important right in the democracy and when this
right is neglected then the other rights provided to the citizen will become erroneous.5

1
Sec 2(d) of the Representation of People Act, 1951
2
Punnuswami v. Returning Officer, AIR 1952 SC 64
3
Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851
4
K. Kamraj Nadar v. Kunju Thevar,, AIR 1958 SC 687
5
Anand Ballabh Kafaltiya, Democracy and Election Laws, Deep and Deep Publications (P) Ltd., New Delhi, 1st ed.
2003 at p.36
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Even though it is mentioned in the constitution that free & fair election is the part of the
basic structure and essential functioning for the democratic country, 6 it was found that the
politicians and other officials who are in the governmental positions misuse their power by
putting the public funds for personal use which increase the corruption rate in the country.
Nowadays, corruption is easily found in the roots of politics. Corruption in public life and
criminalization of politics are the two sides of the same coin. It was noticed that in India the
politicians go as low as using criminals to fulfill their malicious motives of rigging elections and
it is quite rampant as well.

6
Kihoto Hollohon v. Zachillu, AIR 1993 SC 412
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PROVISIONS IN IPC, 1860 REGARDING ELECTORAL

OFFENCES

If a candidate, his election agent or any other person commits corrupt practices in election, the
election may be set aside and the person involved in such corrupt practice is liable to be
disqualified for contesting election. Apart from setting aside an election of the returned candidate
and disqualifying him or any other person who has committed corrupt practice, penalties have
been provided for several electoral offences under Chapter II of Representation of People Act,
1951 and Chapter IX-A of the Indian Penal Code, 1860.

CHAPTER IX A OF THE INDIAN PENAL CODE (IPC) 1860

Chapter IX A of the Indian Penal Code (IPC), 1960 deals with offences relating to Elections.
This chapter was added to IPC in the year 1920,7 after the British Indian Government introduced
limited Indian participation in the electoral process. The object of the Chapter is to make
punishable bribery, undue influence, personation and other malpractices at elections and to
provide punishment thereof. Although in 1951, (RPA) was passed by the Parliament which is a
more comprehensive legislation on the subject, however the general provisions of this chapter of
IPC are necessary, in so far as they apply not only to election to Parliament or State Legislature,
but to every other kind of Election.8 Thus despite the existence of RPA, 1951, (RPA), ordinary
criminal courts still have jurisdiction to decide cases alleging any of the election related offences
defined in secs. 171 B to 171 E, IPC.

7
Added by the Indian Elections Offences and Inquiries Act, 1920
8
Dr. KI Vibhute, P.S.A. Pillai’s Criminal Law, Lexis Nexis Buttersworth, New Delhi, 10th ed. 2008, at p. 567
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The IPC and the RPA have to be seen as complementing each other, as several definitions of
election offences are provided in the RPA, as for example, the offence of undue influence. 9
Similarly, a conviction under secs. 171E and 171F of the IPC amounts a disqualification under
the RPA.10

SCOPE OF CHAPTER IX A

The very first provision (s 171A) in the chapter relates to the definition of ‘candidate’ and
‘electoral right’. Thereafter, the chapter discusses six offences in relation to elections. They are:
 Bribery and punishment thereof (Sec. 171B and 171E)
 Undue influence (Sec. 171C and 171F)
 Personation at election (Sec. 171D)
 Making or publishing False Statements (sec. 171 G)
 Illegal payments (sec. 171 H)
 Failure to keep election accounts (sec. 171 I).

The first three offences, namely, Bribery, Undue Influence, and Personation, are considered
grave enough to deserve imprisonment for a term up to one year. The other three offences, vis,
making false statements about the personal character or conduct of a candidate, illegal payments
in connection with an election, and failure to keep election accounts as required by law, are
punishable with fine only.

CANDIDATE & ELECTORAL RIGHT

Candidate has been defined as any person who has been nominated as a candidate at any
election.11 The determining factor as to who is a candidate lies in the decision of the candidate
himself, not on the act of other persons or bodies adopting him as candidate.

9
Sec. 123(1), RPA, 1951
10
Sec. 8, RPA, 1951
11
Sec. 171 A, RPA, 1951
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Thus if he has communicated his intention to the outside world by declaration or conduct, from
which it can be inferred that he intends to contest elections, then from that moment onwards, he
would be considered to be a candidate.12

The term electoral right has been defined 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 any election. 13 The term
Election has been defined in expln. 3 to 21 of the IPC. It denotes an election for the purpose of
selecting members of any legislative, municipal or other public authority of whatever character,
the method of selection to which is by, or under, any law prescribed as by election.

SPECIFIC OFFENCES

Bribery :-

Giving or acceptance of bribery or gratification either as a motive or as a reward to induce any

person to stand or not to stand as or to withdraw from being a candidate or to vote or refrain from
voting at an election14, is punishable with imprisonment of either description for a term which
may extend to one year, or with fine, or with both.. However, bribery in the form of food, drink,
entertainment or otherwise “treating” is punishable with fine only. 15 But declaration of a public
policy or promise of a public action is not an offence under sec. 171 B The offence is non-
cognizable, bailable and triable by Magistrate of first class.16

12
S Khader v. Munuswami, AIR 1955 SC 775
13
Sec. 171 A, RPA, 1951
14
Sec. 171 B, ibid
15
Sec. 171 E, ibid
16
The First Schedule of Code of Criminal Procedure, 1973.
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The term ‘gratification’ may be taken to mean, ‘something valuable which is calculated to satisfy
a person’s aim, object or desire, whether or not that thing is estimable in terms of money’. 17In the
case of Trilochan Singh v Karnail Singh,18 two tests were evolved to check out as to what would
amount to an act of bribery. The first test was to see whether the gratification was calculated to
satisfy a person’s aim, object or desire, and secondly, whether the gratification would be of some
value, even if the value was not estimable in terms of money. The gratification need not merely
be of value to the person offered, but also to anybody else.

Undue Influence:-

Section 171C defines the offence of undue offence at elections while 171F provides the
punishment for the same. The essential ingredient of the offence is that there should be a
voluntary interference or attempted interference with the right of a person to enjoy his electoral
rights, namely, the right to stand for elections or to withdraw from elections. This covers all
threats of injury to person or property and all illegal methods of persuasion and any interference
with the liberty of the candidate or the electors. The inducing or attempting to induce a person to
believe that he will become the object of divine displeasure is also interference. It is not,
however, interference within the meaning of 171 C (3) to make a declaration of public policy or
promise of public action.19 The gist of Undue Influence consists in voluntary interference or
attempts at interference with the free exercise of any electoral rights. 20 Unlike English Law, in
Indian Law, what is material is not the actual effect produced, but the commission of such acts,
as are calculated to interfere with the free exercise of any electoral right.21

17
Mohan Singh v. Bhanwarlal, AIR 1964 SC 1366
18
AIR 1968 Punj 416, (1968) Cr U 1199 (P&H) (FB).
19
Anand Ballabh Kafaltiya, Democracy and Election Laws, Deep and Deep Publications (P) Ltd., New Delhi, 1st ed.
2003 at p.293
20
Baburao Patel v. Dr. Zakir Hussain, AIR 1968 SC9 04
21
Ram Dial v. Sant Lal, AIR 1959 SC 855
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Following are held to be the important considerations for the stages of Undue Influence.22
 There can be undue influence at any stage during the elections. This ranges from the time
when the elector goes through the mental process of weighing the merits and demerits of
the candidates to make his choice and also covers the time when he actually casts his vote
or ballot;
 The pamphlet would be one which would be covered both by s 171C, as also s 171G,
even if it was anonymous. When it was distributed in Parliament by a MP then it showed
that the person had endorsed the pamphlet;

 It is the degree or gravity of the allegation, which determines whether the allegations
would be covered by s 171 C or s 171G. If it was aimed at character assassination, then it
would be the lesser offence of s 171 G; however, if it amounted to interference with the
election, then it would be covered by provision of s 171 C.

Personation at an Election :-

Whoever at an election applies for a voting paper or votes in the name of any other person,
whether living or dead, or in a fictitious name, or who having voted once at such election applies
at the same election for a voting paper in his own name, and whoever abets, procures or
attempts to procure the voting by any person in any such way, commits the offence of
personation at an election:
Provided that nothing in this section shall apply to a person who has been authorised to vote as
proxy for an elector under any law for the time being in force in so far as he votes as a proxy for
such elector.23 The offence of personation is punished with an imprisonment for a term of one
year, fine or both.24

This sec. defines personation at elections. It covers a person who attempts to vote in another
person’s name or in a fictitious name, as well as a voter who attempts to vote twice and any

22
Shiv Kripal Singh v. VV Giri, AIR 1970 SC 2097
23
Sec. 171D. Personation at Elections
24
Sec. 171 F
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person who abets, procures, or attempts to procure such voting. 25 The offence defined here
differs from the previous ones in that it covers the offences committed not by the candidate or his
agent, but by others also. The essence of the offence of false personation is that the offender
pretends to be other than what he really is. It covers only issues when there is an attempt at
impersonation and does not come into play when the candidate or his agent, do not claim to be
the voters themselves, when they make cross against any name. 26 The offender must have a
corrupt motive. A person, who, in good faith, believes that he has two votes as his name
appeared in two lists of voters at two polling stations, therefore, cannot be held guilty under the
section.27 However, proof of mens rea or corrupt motive is not required when a person knowing
that he is not entitled to vote, goes to a polling station and applies for a ballot paper under a false
name. His mens rea or corrupt motive is implied in his act.28

Making or Publishing Deliberate False Statements :-

Whoever with intent to affect the result of an election makes or publishes any statement
purporting to be a statement of fact which is false and which he either knows or believes to be
false or does not believe to be true, in relation to the personal character or conduct of any
candidate shall be punished with fine.29
Section 171G penalizes a person making or publishing a false statement in relation to the
personal character or conduct of a candidate. A statement that does not contain a statement of
fact relating to the personal character or conduct of a candidate does not amount to an offence
under the section.30 A general statement or a general imputation of misconduct or a statement of
fact does not come within the purview of s 17 1G.31

25
V.R. Manohar & Y.V. Chandrachud, Ratanlal & Dhirajlal’s The Indian Penal Code, Wadhwa Nagpur, New
Delhi, 2006
26
Parthasarathi v Ramachandra Rao, AIR 1956 AP 65; State of Gujarat v Chandulal Bhikalal AIR 1965 Guj 83,
(1965) Cr U 440 (Guj).
27
Pantam Venkayya v. Emperar, AlR 1930 Mad 246.
28
State of Gujarat v. Chandula Bhikalall, AIR 1965 Guj 83, (1965) Cr U 440 (Guj); State of Orissa v GokulBarick
AIR 1959 Ori 97.
29
Section 171G. False statement in connection with an election.
30
Narayanaswamy Naicker v Devaraja Mudaliar, AlR 1936 Mad 316.
31
KumaraNanda v Brij Mohan Lal Sharm,a, AIR 1967 SC 808.
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To a charge of false statement and thereby to invoke s 171 G, it is required to prove that:
 An election was impeding.
 The accused made or published a statement.
 The statement related to the personal character or conduct of a candidate.
 The statement was made or published with intent to affect the result of the election.
 The accused knew that the statement was false or believed to be false or he did not
believe it to be true.32

Illegal Payments:-

Whoever without the general or special authority in writing of a candidate incurs or authorizes
expenses on account of the holding of any public meeting, or upon any advertisement, circular or
publication, or in any other way whatsoever for the purpose of promoting or procuring the
election of such candidate, shall be punished with fine which may extend to five hundred rupees:
Provided that if any person having incurred any such expenses not exceeding the amount of ten
rupees without authority obtains within ten days from the date on which such expenses were
incurred the approval in writing of the candidate, he shall be deemed to have incurred such
expenses with the authority of the candidate.33
This section makes any unauthorized and unapproved expenditure (by the candidate) illegal at an
election. It plausibly intends to secure correct returns of expenditure and to prevent corruption. 34
The punishment provided for such an unauthorized and unapproved expenditure is fine up to five
hundred rupees.

32
Mohd Kadir Sheriff v Rahmatullah, AIR 1940 Mad 230.
33
Sec. 171 H. Illegal Payments in connection with an Election
34
Dr. KI Vibhute, P.S.A. Pillai’s Criminal Law, Lexis Nexis Buttersworth, New Delhi, 10th ed. 2008, at p. 581
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Failure to keep Election Accounts:-

Whoever being required by any law for the time being in force or any rule having the force of
law to keep accounts of expenses incurred at or in connection with an election fails to keep such
accounts shall be punished with fine which may extend to five hundred rupees.35

Section 171-I penalizes the failure of a candidate to keep accounts of expenses incurred at an
election. In Mast Ram v State of Punjab,36 the Supreme Court held that the offence referred to by
this section related to non-maintenance of accounts by a Member of Parliament, who contested
elections and not to irregular maintenance of accounts.

CONCLUSION

35
Sec. 17 1-I. Failure to keep election accounts, RPA, 1951
36
(1995) Supp 2 SCC 744.
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Election constitutes a basis of any democratic society, it is a process which makes it different
from other forms of governance such as Tyranny, Monarchy, Oligarchy etc. This process instills
confidence and a sense of belongingness in people in the government with a belief that their
grievances and problems will be heard and sorted out. But those who believe in the influence of
muscle power in elections do not believe in soliciting votes from electorate by reasoning and
argument.
Criminalization of the politics is the greatest danger to the present political system. A large
number of criminals have acquired political positions in the country and their number is
increasing. It is now an established fact that criminalization of politics and corruption in high
levels is destroying the edifice of our parliamentary democracy. The black money earned by
nefarious trades is misused to develop a network of muscle power to be used by politicians
during elections for violence, booth capturing, rigging, intimidating voters and even killing rival
candidates. In Ankul Chandra Pradhan v. Union of India,37 the Supreme Court has observed that
criminalization of politics is the bane of society and negation of democracy. The need of the hour
is to protect and preserve our democratic values by implementing various reform measures in
relation to electoral offences.
Thus Parliament must consider the legal infirmities existing in the provisions of election law
relating to entry of criminals in politics. There should not be any distinction in banning the right
to vote and right to contest election in so far as it relates to criminals. Once charges are framed
by the Court in connection with an election offence against any person, he/she should be
disqualified for contesting elections to the legislative bodies. Stringent punishment against any
violation of election law and its efficient implementation should be ensured by appropriate
amendments in the needful laws. Special courts may be created for hearing cases of election
crime. Dacoits, mafias, goondas and other criminals should be prohibited from becoming
election agents, counting agents or polling agents. Appropriate legislative changes should be
brought about and finally, it should be obligatory for all political parties to not give tickets to
offenders of law.

37
AIR 1997 SC 2814
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BIBLIOGRAPHY

STATUTUES
 The Constitution of India, 1950
 Representation of People Act, 1951
 Indian Penal Code, 1860
 Indian Elections Offences and Inquiries Act, 1920

REPORTS
 Law Commission 170th Report on Electoral Reforms
 Law Commission of India 156th Report on Indian Penal Code
 Law Commission of India 42nd Report on Indian Penal Code
 Report of National Commission to review the working of Constitution, 2002

BOOKS
 Anand Ballabh Kafaltiya, Democracy and Election Laws, Deep and Deep Publications
(P) Ltd., New Delhi, 2003
 Vibhute KI, PSA Pillai’s Criminal Law, Lexis Nexis Buttersworth, Wadhwa, Nagpur, 10th ed.
2006

WEB SOURCES
 http://eci.nic.in/eci_main/ElectoralLaws/compendium/vol3.pdf
 http://eci.nic.in/eci_main/ElectoralLaws/HandBooks/MANUAL_OF_LAW_VOL_I.pdf
 http://www.and.nic.in/election/model_conduct.pdf

 http://www.legalserviceindia.com/Art./l290-Criminalization-of-Politics.html
 http://www.thehindu.com/nic/modelcodeviolations.pdf