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2019 DIGILAW 399 (MP)

Sarvesh Soni v. State of M. P.

2019-05-17

AKHIL KUMAR SRIVASTAVA

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ORDER : Akhil Kumar Srivastava, J. 1. This petition under Section 482 of CrPC has been filed for quashing the FIR in Crime No.167/2018 registered at Police Station Sirmour District Rewa for the offence punishable under Section 188 of the Indian Penal Code and Sections 129, 134 and 134A of the Representation of the People Act, 1951 (for short 'the Act of 1951) as well as further proceedings thereon. 2. According to the First Information Report which was lodged on 30.10.2018 upon an oral information given by SDM/Returning Officer to the effect that the petitioner being a Govt. servant participated in the election campaign for the State Assembly Election 2008 by sharing a post of political party and photo of banner relating to inauguration programme held on 16.09.2018 on Facebook cover photo and thereby canvassing for votes in favour of BJP candidates. The said act of the petitioner was alleged to be breach of Model Code of Conduct which is in force for the Vidhan Sabha Election. Accordingly, the petitioner is found to have committed clear violation of the provisions of the Act of 1951. Consequently, an FIR has been registered against the petitioner. 3. Learned counsel for the petitioner contends that in the instant case, the process of the Court is sought to be abused by the respondent No. 2 with oblique motive. The criminal proceeding is manifestly intended with mala fides and the proceeding is maliciously instituted with an ulterior motive. It is submitted that inauguration programme has been organized by the Ministry of Forest Department and the same was not a political function and was not wooing the voters or for winning election. The petitioner has not attended the function as an agent of any political party whereas he was invited therein and he was honoured by the Hon'ble Minister for his effort in declaring that place as a "Manoranjan Isthal". It is further submitted that it was not an election meeting. Reliance has also been placed to the decision of a Division Bench of this Court in State of M.P. vs Jyotiraditya Scindia, 2014 (1) JLJ 326 to contend that the written complaint to Magistrate is must for taking cognizance for the offence under Section 188 of IPC. It is further submitted that it was not an election meeting. Reliance has also been placed to the decision of a Division Bench of this Court in State of M.P. vs Jyotiraditya Scindia, 2014 (1) JLJ 326 to contend that the written complaint to Magistrate is must for taking cognizance for the offence under Section 188 of IPC. Since the ingredients of the aforesaid offences are not attracted, even if the allegations in the FIR are read as a whole and accepted in its entirety as true, such allegations do not constitute any offence. It is submitted that the FIR registered against the petitioner is a gross misuse of powers by the police and is liable to be quashed. 4. On the other hand, learned Panel Lawyer appearing for the respondent No. 1/State, while refuting the submissions made by learned counsel for the petitioner, has sought to justify the lodging of FIR against the petitioner. 5. Heard learned counsel for the respective parties and perused the case diary. 6. Before adverting to the fact situation as prevailing in the case, it would be appropriate to take a look at the legal provision of Section 188 of IPC and Sections 129, 134 and 134A of the Act of 1951 respectively. "188. Disobedience to order duly promulgated by public servant. -Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation.-It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. Explanation.-It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. ........ ........ ........ 129. Officers, etc., at elections not to act for candidates or to influence voting. - (1) No person who is [a district election officer or a returning officer], or an assistant returning officer, or a presiding or polling officer at an election, or an officer or clerk appointed by the returning officer or the presiding officer to perform any duty in connection with an election shall in the conduct or the management of the election do any act (other than the giving of vote) for the furtherance of the prospects of the election of a candidate. (2) No such person as aforesaid, and no member of a police force, shall endeavour- (a) to persuade any person to give his vote at an election, or (b) to dissuade any person from giving his vote at an election, or (c) to influence the voting of any person at an election in any manner. (3) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment which may extend to six months or with fine or with both. (4) An offence punishable under sub-section (3) shall be cognizable. 134. Breaches of official duty in connection with election.-(1) If any person to whom this section applies is without reasonable cause guilty of any act or omission in breach of his official duty, he shall be punishable with fine which may extend to five hundred rupees. (1A) An offence punishable under sub-section (1) shall be cognizable. (2) No suit or other legal proceedings shall lie against any such person for damages in respect of any such act or omission as aforesaid. (3) The persons to whom this section applies are the district election officers, returning officers, assistant returning officers, presiding officers, polling officers and any other person appointed to perform any duty in connection with the receipt of nominations or withdrawal of candidatures, or the recording or counting of votes at an election; and the expression "official duty" shall for the purposes of this section be construed accordingly, but shall not include duties imposed otherwise than by or under this Act. 134A. 134A. Penalty for Government servants for acting as election agent, polling agent or counting agent.-If any person in the service of the Government acts as an election agent or a polling agent or a counting agent of a candidate at an election, he shall be punishable with imprisonment for a term which may extend to three months, or with fine, or with both. 7. The Code of Criminal Procedure, 1973 provides for a procedure in respect of prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relation to documents given in evidence. Section 195(1)(a) CrPC reads as under: "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No Court shall take cognizance- (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or ....." 8. It is apparent from record that the proceeding against the petitioner under Section 188 of IPC has been initiated on the basis of FIR and not on the basis of any complaint in writing of the public servant concerned as is required by Section 195(1)(a) of the Code of Criminal Procedure, 1973. The registration of FIR and the launching of proceedings thereafter against the petitioner is not permitted by the Code and thus, cannot be allowed to be sustained. Further, sufficient material has come on record which shows the bona fide of the petitioner and mala fide of the respondent No. 2/complainant. 9. As per the prosecution case, there was an inauguration ceremony conducted by Madhya Pradesh Ecotourism Development Board and Madhya Pradesh Forest Department on 16.09.2018 that was an official programme under the auspices of Govt. Department and the same was not a political affair. It is also evident that election of Madhya Pradesh State Assembly Election 2008 was declared on 06.10.2018; hence, this programme was held prior to that declaration. Thus, if somebody participated in that official programme and if somebody including the petitioner shared a photograph of that official programme, it does not amount to propagate idea of any political party. For these reasons, the petitioner has not committed any violation of the provisions of the Act of 1951. 10. Thus, if somebody participated in that official programme and if somebody including the petitioner shared a photograph of that official programme, it does not amount to propagate idea of any political party. For these reasons, the petitioner has not committed any violation of the provisions of the Act of 1951. 10. Taking into consideration the peculiar facts and circumstances of the case, the case of the petitioner is covered under the illustration/categories referred by the Supreme Court in Smt. Nagawwa vs. Veerann Shivalingappa, AIR 1976 SC 1947 and State of Haryana vs. Ch. Bhajan Lal, AIR 1992 SC 604 . The Apex Court in Smt. Nagawwa (supra) has referred the illustrative cases wherein the proceedings against the accused can be quashed or set aside. These are illustrative in nature and are as under: "(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused. (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like." 11. While, in the case of Ch. Bhajan Lal (supra), the Apex Court in para 108 of the judgment has given following illustration of cases, wherein, the FIR/criminal proceedings can be quashed:- "108. While, in the case of Ch. Bhajan Lal (supra), the Apex Court in para 108 of the judgment has given following illustration of cases, wherein, the FIR/criminal proceedings can be quashed:- "108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulas and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engraved in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 12. The case of the petitioner is squarely covered under the illustration 1, 2 & 4 of the case of Smt. Nagawwa (above) and illustration No. 5, 6 & 7 of Ch. Bhajan Lal's case (supra). 13. In view of the foregoing facts and circumstances of the case, the petition is allowed. The FIR registered vide Crime No. 167/2018 registered at Police Station Sirmour District Rewa for the offence punishable under Section 188 of the Indian Penal Code and Sections 129, 134 and 134A of the Act of 1951 as well as further proceedings thereon are quashed.