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2010 DIGILAW 1887 (PAT)

Dhanamjay Upadhyay v. State Of Bihar

2010-08-18

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 6.6.2001 passed by the Chief Judicial Magistrate, Patna in G.R. No. 1750 of 2000/Tr. No. 1142 of 2001 arising out of Gardanibagh P.S. Case No. 324 of 2000. By the said order, the learned Chief Judicial Magistrate has taken cognizance of offence under Section 136(2) of the Representation of Peoples Act, 1951. 2. Short fact of the case is that on the basis of written report submitted by Executive Magistrate, Patna, an F.I.R. vide Gardanibagh P.S. Case No. 324 of 2000 was registered on 1.6.2000 for the ofience under Section 136(2) of the Representation of Peoples Act, 1951. The report of the Executive Magistrate contains letter No. 58 dated 3.3.2000, which was addressed to the Officer-in-charge. Gardanibagh Police Station. In the said letter, it was alleged that the petitioner, an Assistant Teacher in the Government High School. Gardanibagh, Patna, was deputed for election duty, but he abstained and on that allegation, the Executive Magistrate directed the Officer-in- charge to register a case under Section 136(2) of the Act and thereafter, F.I.R. was lodged. After registering F.I.R., police investigated the same and submitted chargesheet. On 6.6.2001, the learned Chief Judicial Magistrate perused the charge-sheet, case diary and took cognizance of offence under Section 136(2) of the Act. 3. Aggrieved with the order of cognizance dated 6.6.2001, the petitioner approached this Court by filing the present petition, which was admitted on 6.9.2002, This Court also called for Lower Court Records. 4. Shri Uma Shankar Singh No. 2, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance as well as entire prosecution, submits that on the basis of allegation made in the F.I.R. itself, no offence is made out under the provisions contained in Section 136(1) of the Representation of Peoples Act (hereinafter referred to as Act.). It was submitted that Section 136(2) of the Act is the penal provision, which prescribes punishment for violation of any of the provisions contained in Section 136(1) of the Act. Learned counsel for the petitioner has pointedly referred the entire provisions of Section 136(1) of the Act, which is as follows : "136. Other offences and penalties therefor. It was submitted that Section 136(2) of the Act is the penal provision, which prescribes punishment for violation of any of the provisions contained in Section 136(1) of the Act. Learned counsel for the petitioner has pointedly referred the entire provisions of Section 136(1) of the Act, which is as follows : "136. Other offences and penalties therefor. (1) A person shall be guilty of an electoral offence if at any election he (a) fraudulently defaces or fraudulently destroys any nomination paper; or (b) fraudulently defaces, destroys or removes any list, notice or other document affixed by or under the authority of returning officer; or (c) fraudulently defaces or fraudulently destroys any ballot paper or the official mark on any ballot paper or any declaration of identity or official envelop used in connection with voting by postal ballot; or (d) without due authority supplies any ballot paper to any person (or receives any ballot paper from any person or is in possession of any ballot paper); or (e) fraudulently pucs into any ballot box anything other than the ballot paper which he is authorized by law to put in or (f) without due authority destroys, takes, opens or otherwise interferes with any ballot box or ballot papers than in use for the purposes of the election; or (g) fraudulently or without due authority, as the case may be, attempts to do any of the foregoing acts or willfully aids or abets the doing of any such acts." 5. By referring to aforesaid provisions, it has been submitted that none of the provisions suggests that absence from the election duty constitute an offence under Section 136(1) of the Act. Besides this, it was submitted that on the allegation of absence from the election duty, the petitioner was also proceeded with departmentally and in the departmental proceeding on the same charge, he was asked to file show- cause and finally, the Disciplinary Authority, after vacating the order of suspension, exonerated the petitioner from the charges of absence of duty. It was further submitted that even for the time being, if it is assumed that remaining absent from the election duty is an offence, no case is made out against the petitioner, in view of the fact that prior to his absence, the petitioner had already obtained permission from the competent authority. It was further submitted that even for the time being, if it is assumed that remaining absent from the election duty is an offence, no case is made out against the petitioner, in view of the fact that prior to his absence, the petitioner had already obtained permission from the competent authority. Learned counsel for the petitioner has referred to Annexure-5 to the petition, which is a typed copy of letter No. 794 dated 9.9.1999 issued under the signature of the District Education Officer. Patna whereby the petitioner was deputed for participating in the National Level Programme of Scout and Guide from 22.2.1999 to 30.9.1999 and petitioner was allowed to participate in the Training Centre at Panchmarhi (Madhya Pradesh). As per the allegation of the prosecution, the petitioner was required to attend election duty on 25.9.1999. It was submitted that as per the order of the competent authority, he had already left for attending training at Training Centre, Panchmarhi (Madhya Pradesh). Learned counsel for the petitioner has also brought on record a typed copy of certificate granted by Bharat Scout and Guide National Training Centre, Madhya Pradesh dated 30.9.1999 to show that from 22.9.1999 to 30.9.1999, the petitioner had successfully undergone 49 Assistant Leader Trainers Course conducted at NTC, Panchmarhi from 22.9.1999 to 30.9.1999. Learned counsel for the petitioner has also referred to Annexure-3 to the petition, which is the office order in relation to departmental proceeding through which his suspension was revoked and he was relieved from the departmental proceeding. On aforesaid grounds, it has been prayed to quash the order of cognizance and entire proceedings in G.R. No. 1750 of 2000/TR. No. 1142 of 2001 arising out of Gardanibagh P.S. Case 324 of 2000. 6. Smt. Renu Kumari, learned Additional Public Prosecutor appears on behalf of the State. She has opposed the prayer of the petitioner. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record. Of course, at the time of hearing a petition under Section 182 of the Code of Criminal Procedure, it is not required for the Court to examine documents enclosed with the petition unless those documents are proved through process of law, but in view of peculiar facts and circumstances of the present case, I have perused the same. Of course, at the time of hearing a petition under Section 182 of the Code of Criminal Procedure, it is not required for the Court to examine documents enclosed with the petition unless those documents are proved through process of law, but in view of peculiar facts and circumstances of the present case, I have perused the same. On the basis of averment made in the F.I.R. itself, the Court is satisfied that there was no occasion for initiating a criminal proceeding against the petitioner. The charge, which was levelled in the F.I.R. does not constitute any offence under Section 136(1) of the Representation of Peoples Act, 1951, For the said charge, departmental proceeding was also initiated against the petitioner and finally, the petitioners suspension was revoked and he was relieved from the said departmental proceeding. 8. in view of the facts and circumstances of the present case, the Court is of the opinion that it is a fit case for exercise of inherent jurisdiction in favour of the petitioner and as such order of cognizance dated 6.6.2001 passed in G.R. No. 1750 of 2000/Tr. No. 1142 of 2001 arising out of Gardanibagh P.S. Case No. 324 of 2000 is hereby set aside and petition stands allowed.