SOS International and Another vs State of Jammu & Kashmir and Others

The petitioners, the Chairman and General Secretary of SOS International, a registered NGO, have filed the instant petition in public interest

with a prayer for initiating action against seven members of the Legislative Assembly belonging to the Bhartiya Janata Party (BJP), who have been

impleaded as respondents. The basic ground for the relief claimed is that they have violated the oath administered to them and have indulged in

corrupt practices with regard to election of six members of the Legislative Council which were held on 13.04.2011. A further prayer has been

made seeking direction to the Central Bureau of Investigation to register a case under the provisions of the Jammu and Kashmir Prevention of

Corruption Act, Svt. 2006 read with Sections 406 and 409 RPC against respondent Nos. 3 to 13. It has also been suggested that appropriate

periodical monitoring of investigation may also be undertaken by this Court leading to the prosecution of respondent Nos. 3 to 13. It is appropriate

to mention that elections to the six seats of Legislative Council were notified by respondent No. 2 which were conducted on the basis of Electoral

College comprising of the members of the Legislative Assembly (Annexure A). The petitioners have given party wise break up of political

representatives in the Legislative Assembly of the State of Jammu and Kashmir. The elections for six seats were to be held by way of secret ballot.

There are allegations indicating that the present ruling alliance of Congress and National Conference parties could not have secured five seats. It

was made possible only on account of violation of whip issued to its MLAs by the BJP. According to the allegation, seven out of eleven MLAs

indulged in corruption and voted against the party mandate. There are allegations that on account of accepting the payment in cash they have sold

themselves to vote for the Congress and National Conference party alliance. In that regard some newspaper reports have been attached

(Annexure B). Therefore, a prayer has been made that the ruling alliance may not prefer to register a case against those who have indulged in

corruption and the Court must interfere by granting the prayer made by the petitioners.

By placing on record complaint dated 14.06.2012 and the report of the Vigilance Commissioner, separate applications were filed by the

petitioners as well as respondent Nos. 1 and 2. The report of the Vigilance Commissioner filed on 10.10.2012 suggests that the complaint filed by

the petitioners before the Vigilance Organization was not within the ambit of abuse of official position as envisaged under the Prevention of

Corruption Act Svt. 2006 because casting votes contrary to the party whip is entirely different matter which is not covered by those provisions.

The report further suggests that elections to the Legislative Council are governed by the Jammu and Kashmir Representation of People Act, 1957

and as per Section 102 of the said Act no person can be forced to reveal for whom he has voted as the election is strictly by secret ballot. It has

also been pointed out that the allegations made in the complaint did not disclose offences covered by the provisions of the Prevention of

Corruption Act. It would be appropriate to notice para 5 and 6 of the report which reads as under:-

That, Section 132 of Representation of Peoples Act deals with corrupt practices during Elections which is punishable u/s 171E of Ranbir Penal

Code, which is a non-cognizable offence. Cognizance by courts in such offence is possible only upon complaint made by order of, or such other

officer as may be empowered by the Government in this behalf as envisaged u/s 196 Criminal Procedure Code.

That, the allegations/grounds in the complaints are vague, wild and of general nature which do not disclose any instance of transactions; hence,

do not warrant initiation of verification/enquiry in light of rule 3.5(ii) J & K Vigilance Manual 2008.

We have heard the learned counsel for the parties at a considerable length and do not feel persuaded to take cognizance of the complaint made

by the petitioners. The question concerning violation of the party whip is not within the domain of the Courts. It is an internal matter of a political

party particularly in the teeth of provision for casting vote by secret ballot. Moreover there is no material on record that the act of violating the

party whip by BJP members was preceded and actuated by acceptance of any cash amount or any other extraneous consideration which may

warrant interference. The press report do not go to the extent of providing any credible information which may constitute the basis for taking

cognizance and issuing directions for investigating the matter.

We are further of the view that under the garb of Public Interest Litigation some oblique motive is sought to be achieved 5 by the petitioners.

We cannot appreciate the endeavour of the petitioners to undertake any such enterprise which lacks substance and context. The writ petition is

thus complete misuse of the process of the Court and the same is liable to be dismissed. As a sequel to the above, the writ petition is held to be a

frivolous piece of litigation. Accordingly the proceedings are closed. However, we saddle the petitioners with cost of Rs. 10000/- which shall be

deposited with the Secretary Legal Services Committee of the High Court at Jammu.