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2014 DIGILAW 829 (PAT)

Rabari Devi v. State of Bihar

2014-08-01

ASHUTOSH KUMAR

body2014
ORAL ORDER Heard Shri Chittaranjan Sinha, learned senior counsel appearing on behalf of the petitioner and Shri Shiwesh Chandra Mishra, learned counsel appearing on behalf of the State. 2. The petitioner is aggrieved by the order dated 28.03.2009 passed in Hajipur (Town) P.S. Case No.544 of 2005 by the learned Chief Judicial Magistrate, Hajipur, whereby cognizance has been taken under Sections 171F and 188 of the Indian Penal Code, certain provisions of Bihar Control on Use and Play of Loudspeakers Act, 1955 as also under Section 133 of the Representation of People Act, 1950. 3. During the election time, one First Information Report was lodged by the Circle Officer-cum-Deputed Magistrate on 19.10.2005 alleging that on 04.10.2005, during the course of submission of election papers before the Election Officer, at the instance of the petitioner more than required vehicles were found parked 200 meters away from the office premises. One such vehicle was found to have been fitted with a red beacon light. It was further alleged that without taking permission there was use of loudspeaker and the whole cavalcade was accompanied by a band party. It was, therefore, alleged that the petitioner violated the provisions of the Model Code of Conduct, which was promulgated during the election time, the provisions of the Indian Penal Code and the Representation of People Act. 4. Counsel for the petitioner submits that the occurrence is said to have taken place on 04.10.2005, but the report regarding the same was lodged on 19.10.2005. The police took approximately two and half years to conclude the investigation and finally the charge-sheet was submitted on 06.03.2008. On submission of charge-sheet, cognizance under various sections, as stated in the foregoing paragraph, was taken on 28.03.2009. The dates were indicated by the learned counsel for the petitioner to canvass the ground that the case was lodged because of another political party being in power and deliberately such a long delay was made in concluding the process of investigation. 5. It has further been submitted on behalf of the petitioner that assuming every allegation in the First Information Report to be true, it would not make out any offence under either 171F or 188 of the Indian Penal Code. 6. Section 171F comes within Chapter IV-A of the Indian Penal Code, which deals with the offence relating to elections, provides for punishment for undue influence or personation at an election. 6. Section 171F comes within Chapter IV-A of the Indian Penal Code, which deals with the offence relating to elections, provides for punishment for undue influence or personation at an election. The allegation in the F.I.R. is that when the petitioner went to put in her papers before the Election Officer, about 200 meters away from the office premises 28 cars were found to have been parked and one such car was fitted with red beacon light. The First Information Report also specifies that such cars, band party and the loudspeakers were brought by the supporters of the petitioner, who at that time was contesting elections from a particular constituency. There is no allegation whatsoever of any undue influence or personation. 7. So far as Section 188 of the Indian Penal Code is concerned, it provides for punishment for disobedience to the order duly promulgated by a public servant. The controlling part of the Section is that there should be a knowledge about the promulgation of any restraining order, and then its deliberate violation. 8. The narration in the First Information Report is conspicuously silent with respect to any such orders having been promulgated by any public servant. It would be stretching the logic a bit too far to say that during the election time model code of conduct is presumed to have been promulgated. In that view of the matter, there is nothing in the investigation papers or in the First Information Report to suggest that the petitioner had knowledge about such restraining order and that it was deliberately violated. 9. So far as the violation of the provisions of Bihar Control on the Use and Play of Loudspeaker Act, 1955 is concerned, there is no allegation that it was brought at the instance of the petitioner. There is no allegation whatsoever of using any loudspeaker in the First Information Report, in the first place. 10. Section 133 of the Representation of People Act provides for the penalty for illegal hiring or procuring of conveyance at election. There is nothing in the investigation reports to suggest that such vehicles, which were more in number than what was permitted, was hired at the instance of the petitioner. The allegations in the First Information Report are very clear that such vehicles were brought in by the supporters of the petitioner. 11. There is nothing in the investigation reports to suggest that such vehicles, which were more in number than what was permitted, was hired at the instance of the petitioner. The allegations in the First Information Report are very clear that such vehicles were brought in by the supporters of the petitioner. 11. These facts and the circumstances, therefore, make it amply clear that during the election time some minor violations of certain provisions of various Acts was used for launching this prosecution against the petitioner. However, such violations, as has been noticed above, did not clearly make out any offence for which cognizance has been taken. 12. The counsel for the petitioner further submitted that the order taking cognizance was barred by limitation. However, later, after some deliberations, he did not press that ground. 13. However, having regard to the fact that no offence is said to have been made out as against the petitioner, the prosecution of the petitioner, therefore, appears to be meaningless. 14. In that view of the matter the order taking cognizance dated 28.03.2009 passed in Hajipur (Town) P.S. Case No.544 of 2005 by the learned Chief Judicial Magistrate, Hajipur is held to be bad and is, therefore, set aside. 15. The application is allowed.